Candar (Migration)

[2020] AATA 2869

Candar (Migration) [2020] AATA 2869 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ugur Candar

CASE NUMBER:  2002668

DIBP REFERENCE(S):  BCC2019/1659238 PNJ

MEMBER:James Silva

DATE:2 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 2 June 2020 at 4:17pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – prescribed fee has not been paid – applicant departed Australia–outside of Migration zone—no jurisdiction

LEGISLATION
Migration Act 1958, ss 5, 65, 338, 347
Migration Regulations 1994, rr 4.10, 4.13, Schedule 2

CASES
Kirk v MIMA (1998) 87 FCR 99
Braganza v MIMA (2001) 109 FCR 364

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 February 2020, to refuse to grant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 12 February 2020. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. The Department’s movement records show that the applicant departed Australia on 4 April 2019, and the applicant acknowledged that he made the application for review from abroad. The Tribunal wrote to the applicant on 8 May 2020 inviting his comments on the validity of the application, but received no response. The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

5. A further issue concerns the payment of the prescribed fee. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 2 March 2020. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

6. In the present case, the applicant made the application using an application form for the Tribunal’s G&OD Division, and without any accompanying payment. On 12 February 2020, the Tribunal alerted him to the requirements that the application be made on the approved form, and that the applicant fee is paid within the prescribed period. It also mentioned the fee requirement in the letter of 8 May 2020. The Tribunal received no acknowledgement of or response to these letters. As the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, there is a further basis for the Tribunals conclusion that this is not a valid application and that it has no jurisdiction in this matter. 

   DECISION

7. The Tribunal does not have jurisdiction in this matter.

   James Silva
   Member