GAO (Migration)

[2019] AATA 3895

GAO (Migration) [2019] AATA 3895 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHENGGUANG GAO

CASE NUMBER:  1909797

DIBP REFERENCE(S):  

MEMBER:Wendy Banfield

DATE:13 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2019 at 1:23pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicable fee not paid – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347
Migration Regulations 1994, 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 Immigration, dated 5 April 2019, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 18 April 2019. 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 26 April 2019. 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. On 6 May 2019, the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as the application fee has not been paid. The Tribunal noted that the applicant had lodged a second application online on 18 April 2019, in relation to the same Department of Home Affairs decision. The new application appears to be valid, ongoing and currently under review. The Tribunal invited the applicant to make any comments on whether a valid application has been made in writing by 20 May 2019.

5. On 6 May 2019, the applicant’s migration agent wrote to the Tribunal, confirming a request to withdraw the application under review and that a second application has been lodged.

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.

   Wendy Banfield
   Member