Hurley (Migration)

[2024] AATA 3105

Hurley (Migration) [2024] AATA 3105 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Evelyn Hurley

VISA APPLICANT:  Ms Jocelyn Salentes Abasola

CASE NUMBER:  2415613

HOME AFFAIRS REFERENCE(S):          BCC2024/1403162

MEMBER:Paul Windsor

DATE:31 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2024 at 11:08 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – application was not made on the approved form –prescribed fee has not been 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 Home Affairs, dated 2 April 2024, 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 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. In the present case, the prescribed period ended on 11 June 2024. 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 contacted the review applicant by email on 6 June 2024 advising her that her application for review had not been made on the required application form and the relevant application fee had not been paid. Enclosed was a copy of the relevant application form, details of the fee and copy of the fee payment form and advice indicating that, should payment of the full fee cause, or be likely to cause her severe financial hardship, she may consider completing an attached M11 Request for Fee Reduction form, and pay 50% of the application fee, being $1687, and then a Tribunal Officer will assess her fee reduction request and determine if the application fee can be reduced. No response was received from the applicant.

5. On 27 June 2024, the Tribunal wrote to the applicant advising her that it is of the view that her application for review is not a valid application as the application fee has not been paid. No response was received from the applicant.

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.

   Paul Windsor
   Member