Kaur (Migration)

[2023] AATA 647

Kaur (Migration) [2023] AATA 647 (17 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Barinder Kaur

VISA APPLICANTS:  Mr Aasdeep Singh
Mrs Prabhjot Kaur
Master Sargun Singh

CASE NUMBER:  2212545

HOME AFFAIRS REFERENCE(S):          OSF2019/021744

MEMBER:Katie Malyon

DATE:17 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2023 at 3:51 pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining relative) – prescribed fee – non-payment of fee – 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 made by a delegate of the Minister for Home Affairs on 10 August 2022 to refuse to grant the applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 26 August 2022.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the delegate’s decision as the review 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 (the Regulations), this application had to lodged with the Tribunal within the prescribed period, as specified in s 347(1)(b) of the Act and reg 4.10 of the Regulations. It must also have been 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 19 October 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), then it must be paid within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. An officer of the Tribunal formally wrote to the review applicant on 21 October 2022 stating that it appeared the delegate’s decision could not be reviewed by the Tribunal because no lodgement fee had been paid.  A response was invited from the review applicant on or before 4 November 2022.  No response has been provided to the Tribunal. 

5. As noted above, 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

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

   Katie Malyon

   
   Member