Javidi (Migration)

[2018] AATA 2861

Javidi (Migration) [2018] AATA 2861 (17 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fatemeh Javidi

VISA APPLICANTS:  Mrs Bentolhoda Javidi
Ms Houriya Rokhsar
Mr Mahdi Rokhsar

CASE NUMBER:  1807058

DIBP REFERENCE(S):  BCC2018/772047

MEMBER:Nicola Findson

DATE:17 June 2018

PLACE OF DECISION:  Perth

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

Statement made on 17 June 2018 at 2:37pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Applicable fee not paid – Correct application form not used

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 15 March 2018, to refuse to grant Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 15 March 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 24 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. The review applicant lodged her application for review online on 15 March 2018.  The review applicant applied for the review using the incorrect form, which indicated no fee was required.  An officer of the Tribunal wrote to the applicant on 20 March 2018 and advised the application for review required an application fee to be provided within the required time, and that the applicant could apply for a reduction of the prescribed fee.  The Tribunal again wrote to the review applicant on 24 April 2018, noting that she had not paid the required minimum application fee, and that the fee must be paid in order to have a valid review before the Tribunal. 

5. On 29 May 2018, the Tribunal sent a letter to the review applicant’s email address, inviting comments in relation to the validity of her application by 12 June 2018, as the application fee had not been paid before the expiry of the time limit for lodging the application.

6. The Tribunal did not receive any response to its letter dated 29 May 2018 from the review applicant.  The Tribunal has not received payment of the application fee for the application for review.

7. 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

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

   Nicola Findson
   Member