Kartsakis (Migration)

[2024] AATA 3722

Kartsakis (Migration) [2024] AATA 3722 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Konstantinos Kartsakis

VISA APPLICANT:  Mrs Mai Nawaf Al Najem

CASE NUMBER:  2406496

HOME AFFAIRS REFERENCE(S):          BCC2024/1723302

MEMBER:Mara Moustafine

DATE:1 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2024 at 10:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – required application fee not paid – forms for payment and request for fee reduction provided, with no response – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b)
Migration Regulations 1994 (Cth), rr 4.10, 4.13(4)

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 27 March 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 March 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 5 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 material before the Tribunal indicates that the applicant was notified of the decision by letter dated 27 March 2024 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal formed the preliminary view that it did not have jurisdiction because the application was lodged on 28 March 2024 without the required application fee being paid.

6. An officer of the Tribunal wrote to the applicant on 3 April 2024 advising him that one of the requirements for a valid application for review is that the application fee is paid before the prescribed period for making a valid application ended on 5 June 2024. The applicant was provided with a Payment form and an M11 Request for Fee Reduction form. 

7. The letter was despatched by email to the address provided by the applicant in his application. However, no response was received from the applicant.

8. On 11 June 2024 a Tribunal officer wrote to the applicant inviting him to comment on the validity of the application for review by 25 June 2024. The letter was despatched by email to the address provided by the applicant in his application. However, no response was received from the applicant.

9. 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

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

    Mara Moustafine
    Member