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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. The Tribunal Registry identified that Mr Dahi had not paid the application fee on 18 April 2017 and it wrote to him and his representative on 20 April 2017 inviting comment on the preliminary view that his application is not valid.

7. Mr Dahi’s representative responded on 24 April 2017 and provided credit card details for payment of the fee. He described the outcome as a “serious programming fault” in the online application system and noted the Registry acknowledged receipt of the application for review before the time for making payment but did not advise the applicant he had to pay the fee. He submitted that:

   …due to the Tribunal’s error, no fee was requested. There is no difference between what happened to Mr Dahi and a hypothetical case of someone who lodges a paper application at the Registry and is incorrectly informed by a staff member that no fee is payable. It is unconscionable to say that it is the applicant who must suffer for the faulty programming of the Tribunal’s online application system.

8. The submission ignores Mr Dahi’s error in identifying the relevant visa as a refugee visa. The mistake is [understandable] and it would be preferable if the online application system could identify the inconsistency between the “kind” and subclass of visa. However, in the Tribunal’s view, it is not a “serious programming fault” that it does not do so. It also finds the outcome is likely to be the same for a hypothetical paper application for review of a decision to cancel a refugee visa where the applicant referred to a non-refugee visa in the body of the application form.

9. It would also have been preferable if the Registry discovered the applicant’s error before the end of the prescribed period. No doubt, Registry staff would have assisted the applicant if that were the case and ensured he had an opportunity to pay the fee by 8 March 2017. However, it had no legal obligation and any failure to provide appropriate customer service perceived by the applicant or his representative does not make the application valid.

10. The Tribunal has no discretion in this regard because the provisions for making a valid review application are highly prescriptive and are interpreted strictly. In Taylor v MIMIA [2005] FMCA 281, the Federal Magistrates Court found the relevant words in section 347(1)(c) are clear and unambiguous and impose a preliminary requirement essential to the Tribunal’s jurisdiction being engaged. This was so even if, as in that judgment, the application of the provision appeared to operate harshly against the applicants. This decision was followed in Hamad v MIMIA [2006] FMCA 1510, where the application fee was not paid within the prescribed period because of an error by the applicant’s migration agent.

11. 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

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

    Kate Timbs
    Member