Kavaefiafi (Migration) - [2024] AATA 1466

Kavaefiafi (Migration) [2024] AATA 1466 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Telisi Kavaefiafi
CASE NUMBER:  2404877
HOME AFFAIRS REFERENCE(S):          BCC2024/1353549
MEMBER:Paul Windsor
DATE:17 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 17 May 2024 at 2:13 pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – standing for review of decision – sponsor or nominator – non-payment of prescribed fee – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 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

An application has been lodged for review of a decision of a delegate of the Minister for Home Affairs, dated 7 March 2024, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(5) of the Act.
The review application was lodged with the Tribunal on 14 March 2024. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
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 16 May 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.
The Tribunal wrote to the visa applicant through her authorised recipient on 14 March 2024 advising her that the review application had been lodged on an incorrect form (and providing a link to the correct form); that there is a fee of $3374; and that a person with review rights must be listed in Part A of the form (and should be the sponsor rather than the visa applicant herself).
The authorised recipient responded by email on 16 March 2024 querying the fee. On 18 March 2024, the Tribunal responded confirming the fee and advising that the fee can be reduced by half if the review applicant can demonstrate that severe financial hardship will result from full payment of the fee. No response was received.
Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kavaefiafi (Migration) [2024] AATA 1466
Case: [2024] AATA 1466
Decision Date: 17 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision concerning a Subclass 600 (Visitor) visa. The applicant, Ms. Kavaefiafi, sought to have the decision reviewed, but the application was made by her as the visa applicant, rather than by the sponsor as required by the relevant legislation.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear the review application. This turned on two points: firstly, whether the application was made by the correct party, and secondly, whether the prescribed fee for the review application had been paid.

The Tribunal reasoned that section 338(5) of the Migration Act 1958 (Cth) stipulated that only the sponsor could make an application for review of the type of decision in question. As the visa applicant, Ms. Kavaefiafi, had made the application, it was not properly made under section 347 of the Act. Furthermore, the prescribed fee had not been paid, and no request for a fee reduction had been made or determined. Consequently, the Tribunal concluded that the application was not valid.

The Tribunal therefore determined that it did not have jurisdiction to hear the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the decision that is the subject of the review application is a decision covered by s 338(5), the application for review could only be made by the sponsor referred to in that subsection. In the present case, the review application was made by the visa applicant. As such, the application for review is not an application properly made under s 347. In addition, 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 The Tribunal does not have jurisdiction in this matter.Paul WindsorMember

Ratio Decidendi

Legal Principle Established

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