Kaur (Migration)

[2019] AATA 4061

Kaur (Migration) [2019] AATA 4061 (18 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajinder KAUR

CASE NUMBER:  1914217

DIBP REFERENCE(S):  BCC20186108894

MEMBER:Mireya Hyland

DATE:18 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2019 at 8:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – prescribed fee – non-payment of fee – no request for fee reduction – authorised recipient – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 379G
Migration Regulations 1994 (Cth), rr 4.10, 4.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration, dated 14 May 2019, to refuse to grant the applicant, Rajinder Kaur, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Kaur was represented in relation to the review by her registered migration agent, Dr Etienne de Villiers Hugo of Teleo Immigration Specialists. 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. A decision to refuse to grant a Skilled (Provisional) (Class VC) visa is a Part 5-reviewable decision under s.338(2) of the Act. Therefore, pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, a valid application had to be given to the Tribunal within the prescribed period specified in s.347(1)(b) and r.4.10. One of the requirements for a valid application is that it be 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.

4. 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 4 June 2019. The fee must be paid within the prescribed period,[1] or if a determination has been made under r.4.13(4), within a reasonable period after that determination.[2] The review application form was lodged with the Tribunal on 4 June 2019. It was not accompanied by the prescribed fee. Ms Kaur did not request a fee reduction.

   [1] Kirk v MIMA (1998) 87 FCR 99.

   [2] Braganza v MIMA (2001) 109 FCR 364.

5. Pursuant to s.379G of the Act, if a person applies for review of a Part 5-reviewable decision and gives the Tribunal written notice of the name and address of another person authorised to receive documents in connection with the review the Tribunal must give any document to the authorised recipient instead of to the applicant. This obligation apply where the application is not properly made under s.347, including in relation to a document notifying the authorised recipient that the application is not properly made under that section. In the review application form Ms Kaur authorised Dr Hugo to receive documents on her behalf.

6. On 9 August 2019 the Tribunal wrote to Ms Kaur, through her agent, inviting her to comment on the validity of her review application. The letter requested that the Tribunal receive any comments by 23 August 2019. On 29 August 2019 the Tribunal received an email from Dr Hugo stating that as he had ‘not received instructions to continue the matter, we wish to withdraw the pending review application.’

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.

   Mireya Hyland
   Member