Delahunt (Migration)

[2022] AATA 1490

Delahunt (Migration) [2022] AATA 1490 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Kevin Delahunt

CASE NUMBER:  2201475

HOME AFFAIRS REFERENCE(S):          BCC2021/1154316

MEMBER:Scott Clarey

DATE:6 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 6 April 2022 at 5:03pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) – Subclass 461 (New Zealand Citizen Family Relationship (Temporary) – prescribed fee not paid within prescribed period – application made on evening of last day of prescribed period – unsuccessful attempt to process credit card payment the next day – payment successfully processed a week later after applicant provided updated credit card details – no discretion to consider circumstances – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347(1)(b)

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 13 January 2022, to refuse to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 3 February 2022. 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 February 2022. 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. I note that the applicant lodged his application for review with the Tribunal (via email) on the evening of 3 February 2022, the day the prescribed period ended. With the application, the applicant requested for the Tribunal to reduce the prescribed application fee. According to Tribunal records, on 4 February 2022 the Tribunal attempted to process a credit card payment for the reduced fee from the applicant, but the payment was declined. The Tribunal officer then made two unsuccessful attempts to contact the applicant via his nominated mobile phone number to discuss the payment issue. On the same day, 4 February 2022, the Tribunal wrote to the applicant (via email) and stated (in part) that:

   …The Tribunal has now received the full application form and will begin to register your application. The Tribunal has attempted to process the application fee monies of $1500.00 however the credit card payment has been declined. The Tribunal has attempted to contact you on your mobile however a message cannot be left. Can you please contact the Tribunal to discuss payment of the application fee as soon as possible...

5. On 7 February 2022, the applicant contacted the Tribunal by phone and stated that he intended for a friend to pay the application fee on the applicant’s behalf. The Tribunal officer reminded the applicant over the phone about the strict timeframes that were attached to the payment of fees in order for an application to be validly made.

6. On 10 February 2022, the Tribunal received an email from the applicant providing updated payment (credit card) details. On the same day (10 February 2022) the Tribunal successfully processed a payment of $1500 from the applicant.

7. On 21 February 2022 the Tribunal wrote to the applicant to inform him of its concerns regarding the validity of his application, including issues related to the payment of the prescribed fee, and invited him to comment in writing by 7 March 2022. The Tribunal received an email from the applicant on 11 March 2022, attaching a handwritten statement by the applicant, that included a list of various expenses the applicant had due around the time of the visa application being submitted. On 15 March 2022 the Tribunal received another email from the applicant that stated:

   I'm not a bad person, please try and understand the extreme amount of stress this visa refusal and now appeal application is having on myself and my family,

   To be given just 3 weeks from the time of visa refusal to having to lodge an appeal along with everything else going on in my life is just way too tight.

   Maybe the AAT can try to get these strict time limits relaxed slightly as to not put so much stress and pressure on all applicants.

   I'm more than capable of supporting myself and my family, I get alot of satisfaction out of a hard day's work, but hurdles like this make life very difficult.

   My son just started high school, I need to be putting all my time, effort and MONEY into him, very important time in his life...

8. The Tribunal has had regard to the applicant’s responses, but notes that it has no discretion when considering whether the prescribed fee was received in time or not.

9. The Tribunal received a partial payment of the prescribed fee on 10 February 2022, after the prescribed period had expired. The Tribunal finds that the prescribed fee was not paid within the prescribed period. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Scott Clarey
    Member