HUANG (Migration)

[2018] AATA 2753

HUANG (Migration) [2018] AATA 2753 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yue Xing HUANG

CASE NUMBER:  1814680

DIBP REFERENCE(S):  BCC2018/1716482

MEMBER:Christine Cody

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 5:52pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Applicable fee not paid – Request to withdraw review application – 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 10 May 2018, to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 21 May 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 31 May 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. After lodging her application for review, without a fee, the applicant thereafter sought to withdraw her application for review as she acknowledged that she had not made the relevant payment. The Tribunal wrote to the applicant on 24 May 2018 indicating that it appeared that the application for review was invalid as the requisite fee had not been paid. The withdrawal request was acknowledged, however it was noted that a withdrawal can only be made once a valid application has been lodged, and that is a matter to be determined by the member.

5. The applicant wrote to the Tribunal again acknowledging that the application for review was incomplete. The applicant said that she had already successfully lodged an application for review with the Tribunal (application number 1814876, lodgement with fee). She again sought to withdraw the current application.

6. In relation to the current application for review (1814680), 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.

7. The Tribunal notes that this decision only relates to the current application for review (1814680).

   DECISION

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

   Christine Cody
   Member