Deo (Migration)

Deo (Migration) [2023] AATA 4233 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shiuans Siwaal Deo
CASE NUMBER:  2310769
HOME AFFAIRS REFERENCE(S):          BCC2023/3310279
MEMBER:Tania Flood
DATE:4 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 04 October 2023 at 10:39am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – non-payment of fee – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs, dated 29 June 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 20 July 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.
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 20 July 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.
On 25 July 2023 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as he did not pay the application fee before the expiry of the time limit for lodging the application. The applicant was invited to make any comments on whether a valid application has been made, in writing to the Tribunal by 8 August 2023. The applicant did not respond to the Tribunals letter.
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
The Tribunal does not have jurisdiction in this matter.
Tania Flood
Member

This matter concerned an application for review of a decision relating to a Subclass 600 (Visitor) visa. The applicant, Deo, sought review of a decision concerning their Visitor (Class FA) visa application.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review, given that the prescribed fee for the application had not been paid.

The Tribunal, constituted by Member Tania Flood, reasoned that the non-payment of the prescribed fee, in the absence of any determination or request for reduction of that fee, rendered the application for review invalid. Consequently, the Tribunal concluded that it lacked jurisdiction to proceed with the matter.

The Tribunal therefore determined that it did not have jurisdiction in this matter.

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Background to the litigation

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Legal Principle Established