Del Fin (Migration)

[2023] AATA 2047

Del Fin (Migration) [2023] AATA 2047 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Cristy Ann Garcia Del Fin

VISA APPLICANT:  Mr Jerome Garcia

CASE NUMBER:  2303229

HOME AFFAIRS REFERENCE(S):          BCC2023/515616 PNJ

MEMBER:Rachel Da Costa

DATE:13 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2023 at 4:02pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – non-payment of fee – invalid application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 347
Migration Regulations 1994 (Cth), rr 4.10, 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 Home Affairs, dated 14 February 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 6 March 2023. 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 reg 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 reg 4.10, and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 3 April 2023. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. The Tribunal wrote to the applicant twice, on 8 March 2023 and 5 April 2023, about the need to pay the fee for the application for review. On 5 April 2023, the applicant had emailed the Tribunal in response to other correspondence about the non-payment of the application fee and stated, “[t]hank you for this email, sorry for the late reply, we decided not to proceed with the review.”

5. On 27 April 2023, the Tribunal wrote to the review applicant and expressed the view that her application is not a valid application as the application fee has not been paid, and explained that the validity was a matter that must be determined by a member. The letter invited the applicant to comment in writing on whether a valid application has been made, by 11 May 2023. No response was received to the Tribunal’s letter.

6. In light of the above, the Tribunal finds that 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.

   Rachel Da Costa
   Member