Gomez (Migration)

[2024] AATA 3376

Gomez (Migration) [2024] AATA 3376 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Garry Gomez

CASE NUMBER:  2308228

HOME AFFAIRS REFERENCE(S):          BCC2023/81336

MEMBER:Melissa McAdam

DATE:9 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2024 at 5:36pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicable fee not paid – primary decision not validly notified – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494
Migration Regulations 1994, rr 4.10, 4.13

CASES

Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
Sandor v MICMA [2023] FCA 434

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 19 May 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 10 June 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. 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 on 14 June 2023, 28 March 2024 and 4 June 2024 informing him of the requirement to pay the application fee and providing him time to respond.  The Tribunal has received no response from the applicant. 

5. 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.

6. The Tribunal considers that the Department’s notification letter did not ‘state’ the time in which the application for review may be made, because it did not explain that this time period is calculated from when the applicant’s authorised recipient is taken to have received the notification letter (as this is also when the applicant is taken to have received it): ss 494D(1) and 494D(2) of the Act. This means that the prescribed period in which to apply for review has not yet started to run, as the applicant does not appear to have been validly notified of the primary decision: Sandor v MICMA [2023] FCA 434. In these circumstances, if the applicant were to make a new review application to the Tribunal, it would not be invalid on the basis of being lodged out of time. However, if the Department validly notifies the primary decision, the prescribed period will start to run.

   DECISION

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

   Melissa McAdam
   Member