Dahi (Migration) - [2017] AATA 3168

Dahi (Migration) [2017] AATA 3168 (16 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Poulad Dahi
CASE NUMBER:  1703782
DIBP REFERENCE(S):  bcc2016/2940285
MEMBER:Kate Timbs
DATE:16 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 16 June 2017 at 3:22pm

CATCHWORDS
Migration – Cancellation - Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Requirement for fee to be paid within prescribed period – Error in application form – Whether the Tribunal contributed to the applicant’s failure to pay – Tribunal under no legal obligation to assist applicant to discover the error – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 347
Migration Regulations 1994 (Cth), r 4.13
CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Dahi applied for review of a decision of a delegate of the Minister for Immigration made on 16 February 2017 to cancel his Return (Residence) (Class BB) visa under the Migration Act 1958 (the Act). He lodged the review application form electronically on 3 March 2017.
An applicant must give the Tribunal the application within the prescribed period with the prescribed fee or a request that the fee should be reduced because of financial hardship (section 347(1) of the Act and regulation 4.13 of the Migration Regulations 1994 (the Regulations)). The prescribed period started when the applicant is notified of the decision and, in this case, it ended on 8 March 2017.
It is settled law that the applicant must pay the fee within the prescribed period (Kirk v MIMA (1998) 87 FCR 99) or within a reasonable period after a determination to reduce the fee (Braganza v MIMA (2001) 109 FCR 364). If not, the application is not valid and the Tribunal has no jurisdiction.
There is no dispute that Mr Dahi did not pay the fee when he made his online application or within the prescribed period. He did not explicitly or implicitly ask for fee reduction.
Mr Dahi held the Resident Return visa from 17 August 2016. However, for some years before that date he held [a different kind of visa]. He selected the option “refugee visa” as the “kind of visa related to the decision to be reviewed” and identified the visa class correctly later in the application system. The online system did not recognise the inconsistency between the “kind of visa” and the subclass of the visa. It accepted his statement that he sought a review of decision about a refugee visa and allowed him to complete the online application form without paying the fee.
The Tribunal Registry identified that Mr Dahi had not paid the application fee on 18 April 2017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 3168
Decision Date: 16 June 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review concerning the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant, Dahi, sought to have the cancellation decision set aside.

The primary legal issue before the Tribunal was whether the applicant had complied with the requirement to pay the prescribed fee within the stipulated period for their application for review. The Tribunal was also required to determine if any error in the application form, or any action or inaction by the Tribunal, contributed to the applicant's failure to pay the fee correctly, and if so, whether this would vitiate the Tribunal's lack of jurisdiction.

The Tribunal found that the applicant had failed to pay the correct fee within the prescribed time. It reasoned that the Tribunal was under no legal obligation to assist the applicant in identifying or rectifying errors in their application, including errors related to fee payment. The Tribunal concluded that the applicant's failure to meet this mandatory requirement meant that the application for review was not validly made, and therefore, the Tribunal lacked jurisdiction to consider the merits of the case.

Consequently, the Tribunal determined that it did not have jurisdiction in the matter and affirmed the decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows from the above that the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.DECISION The Tribunal does not have jurisdiction in this matter.Kate TimbsMember

Ratio Decidendi

Legal Principle Established

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