Kaur (Migration)

[2023] AATA 1550

Kaur (Migration) [2023] AATA 1550 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Gagandeep Kaur

VISA APPLICANTS:  Sukhwinder Singh

CASE NUMBER:  2300509

HOME AFFAIRS REFERENCE(S):          BCC2022/5312694

MEMBER:Gabrielle Cullen

DATE:4 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2023 at 4:44pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – request for fee reduction – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), 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 22 December 2022, 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 14 January 2023. 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 14 Janaury 2022. 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. At the time of application for review, the review applicant paid $100 and referred to a fee reduction request.

5. The Tribunal responded on 16 January 2023 with the following email

   Please note that to lodge a valid application for review, it is a requirement that the application fee of $3,153 is paid before the prescribed review period for making a valid review application has ended. Please complete the payment details on the M1 Application Form to ensure the validity of your application Please note that to lodge a valid application for review, it is a requirement that the application fee of $3,153 is paid before the prescribed review period for making a valid review application has ended. Please complete the payment details on the M1 Application Form to ensure the validity of your application

   If you wish to make a request for fee reduction, you will need to fill out the attached M11 Form (with documentary evidence of financial hardship) and submit it with payment details for the reduced fee of $1576.50. Please note that the M11 Form and the card details must be submitted at the same time for the payment of $1576.50 to be valid.

   As you have already made a payment of $100, the fee required to be paid is now $3,053 or $1,476.50 if you wish to pay the reduced fee.

6. It also attached the fee reduction request form which the applicant returned to the Tribunal filled in but with no further payment of the fee.

7. On 24 January 2023 the Tribunal wrote to the review applicant and advised that

   I am of the view that your application is not a valid application as you have only paid $100.00 of the application fee, the fee has not been reduced and you have not paid the remainder of the fee within a reasonable period. However, this is a matter which must be determined by a Member

8. The review applicant was requested to respond by 7 February 2023 and no response has been received.

9. The prescribed fee has not been paid, only $100. 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.

    Gabrielle Cullen
    Member