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

1. 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).

2. 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.

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. 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. 

5. 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 eligibility as a regional sponsor of a student visa holder, and requested a refund of the amount already paid.

6. On 18 July 2024 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that the application made was not a valid one as the fee had not been paid.  The applicant responded on 21 July 2024 expressing dissatisfaction over the fee to be paid.  He was also aggrieved that that the Department had not considered his business an eligible sponsor given the time he had been in practice.

7. The Tribunal is sympathetic to Mr Gowing’s concerns about the findings regarding his business as made by the Department.  Unfortunately, to be able to review that decision the relevant fee must be paid within the prescribed period first.  The Tribunal does not have a discretion to waive the fee or to start assessing the merits of the case if this fee is not paid.

8. 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

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

   Rosa Gagliardi
   Member