Kidman (Migration)

[2018] AATA 4395

Kidman (Migration) [2018] AATA 4395 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luther Kidman

CASE NUMBER:  1805296

DIBP REFERENCE(S):  BCC2017/3532167

MEMBER:James Lambie

DATE:7 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 November 2018 at 8:41am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – review application out of time – applicable fee not paid – no jurisdiction

LEGISLATION
Migration Act 1958, ss 347, 494C
Migration Regulations 1994, 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 Immigration on 18 December 2017 to cancel the applicant’s Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 27 February 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 7 working days, after the applicant was notified of the decision in accordance with the statutory requirements. The prescribed fee must be paid within this period (Kirk v MIMA (1998) 87 FCR 99), or if a determination has been made under r.4.13(4) for a reduced fee, within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

3. On 2 March 2018, the Tribunal wrote to the applicant and put it to him that it appeared his application was not a valid application because it was not lodged within the relevant time. The applicant was invited to comment by 16 March 2018.

4. The applicant responded on 15 March 2018.  He stated that the primary decision was sent to his previous residential address while he was in custody at Brisbane Correctional Centre.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 December 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 December 2017: s.494C of the Act.  Therefore the prescribed period to apply for review ended on 10 January 2018.

7. After consideration of the evidence, the Tribunal finds that the applicant did not pay the prescribed fee, or request a fee reduction, prior to the close of business on 10 January 2018.  Accordingly, the prescribed fee has not been paid and no determination has been made or requested for a reduction.  The Tribunal has no discretion to waive the prescribed fee requirement.

8. As the application for review was not received by the Tribunal until 27 February 2018, and as no fee was paid nor a reduction requested within the prescribed period, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   James Lambie
   Senior Member