Gowing Advisory Chartered Accountants (Migration) - [2024] AATA 3416

Gowing Advisory Chartered Accountants (Migration) [2024] AATA 3416 (28 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gowing Advisory Chartered Accountants
CASE NUMBER:  2414107
HOME AFFAIRS REFERENCE:               BCC2024/2855320
MEMBER:Rosa Gagliardi
DATE:28 August 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 28 August 2024 at 11:23am
CATCHWORDS
MIGRATION – Employer Nomination – prescribed fee – non-payment of fee – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), s 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

The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 23 May 2024, to refuse a Standard Business Nomination under the Migration Act 1958 (the Act).
The review application form was lodged with the Tribunal on 28 May 2024. 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. 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 29 May 2024 the Tribunal wrote to Mr Gowing to advise that to undertake independent merits review of visa-related decisions made by the Department of Home Affairs, the Tribunal was required to receive a valid application for review. The letter also explained that a requirement for a valid application is that the application fee is paid before the prescribed review period for making a valid review application has ended. The Tribunal noted that for migration matters an application fee of A$3,374 was payable. However, as the applicant had already paid $1,082.00, he was required to pay the remaining $2,292.00. Mr Gowing was also advised that there may be strict time limits for making a valid review application that cannot be extended by the Tribunal.
Mr Gowing wrote to the Tribunal on 17 July 2024 stating that, among other things, he declined to pay any further fee for the review process because he considered the Departmental decision to have been erroneous as he had conducted a viable business for over 40 years. He wrote that he wanted to abandon his attempts to seek…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Gowing Advisory Chartered Accountants (Migration) [2024] AATA 3416
Case: [2024] AATA 3416
Decision Date: 28 August 2024

CaseChat Overview and Summary

This matter concerned an application for review before the Tribunal, brought by Gowing Advisory Chartered Accountants (Migration) as the applicant. The dispute arose from the non-payment of a prescribed fee associated with an employer nomination.

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

The Tribunal, constituted by Member Rosa Gagliardi, reasoned that the applicant had been afforded a reasonable period to remit the fee following notification of the authorised officer's decision. As the fee remained outstanding, the Tribunal concluded that the application for review was not validly made, thereby divesting the Tribunal of jurisdiction.

Consequently, the Tribunal determined that it did not have jurisdiction in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Rosa GagliardiMember

Ratio Decidendi

Legal Principle Established

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