DAWOOD (Migration)

[2018] AATA 2950

DAWOOD (Migration) [2018] AATA 2950 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Salma Slaman DAWOOD

VISA APPLICANTS:  Mr Fareed Nissan Khosaba KHOSHABA

CASE NUMBER:  1815952

DIBP REFERENCE(S):  BCC2016/3423385

MEMBER:Linda Holub

DATE:25 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2018 at 11:32am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – applicable fee not paid – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, rr 4.10, r 4.13

CASES

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration, dated 3 May 2018, to refuse to grant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 31 May 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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 12 July 2018. 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.

4. The Tribunal wrote to the applicant on 14 June 2018 indicating that it was the Tribunal’s view that the application was not valid as the required fee had not been paid.  The applicant was provided until 28 June 2018 to comment on whether a valid application had been made and she was invited to do so in writing.

5. On 14 June 2018, the Tribunal received an email advising that a separate subsequent application had been made with the correct payment and requesting that this applicant be deleted.

6. The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Linda Holub
   Member