Ding (Migration)

[2018] AATA 842

Ding (Migration) [2018] AATA 842 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zhi Yue Ding

VISA APPLICANT:  Mrs Xilan Liu

CASE NUMBER:  1800850

DIBP REFERENCE(S):  BCC2017/1058615

MEMBER:Hugh Sanderson

DATE:7 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2018 at 7:49am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Prescribed fee not paid within required timeframe

LEGISLATION
Migration Act 1958, ss 65, 347(1)
Migration Regulations 1994, rr 4.10, 4.13

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

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 9 January 2018, to refuse to grant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 11 January 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 20 March 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. Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. The applicant did not provide sufficient documents to assess the appropriateness of granting the fee reduction. The Tribunal requested the applicant to provide specific documents so that his application could be properly assessed. The applicant did not provide these documents to the Tribunal. An authorised officer decided to refuse the request and the applicant was advised of this decision by letter dated 15 February 2018. The applicant was asked to pay the application fee by 1 March 2018. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Hugh Sanderson
   Member