Kimutai (Migration)

Kimutai (Migration) [2024] AATA 666 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Able Kimutai
CASE NUMBER:  2320830
HOME AFFAIRS REFERENCE(S):          BCC2023/6179518
MEMBER:Wendy Banfield
DATE:18 March 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 18 March 2024 at 4:07pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicable fee not paid – correct application form not used – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 347
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

The applicant lodged an application for review of a decision of a delegate of the Minister for Home Affairs, dated 11 December 2023, to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).
The review application form was lodged with the Tribunal on 19 December 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.
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 20 December 2023. 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.
On 14 February 2024 the Tribunal wrote to the applicant inviting comment on the validity of the application for review. The letter was sent to the email address provided by the applicant, but it was returned to sender. On 22 February 2024 the Tribunal sent a copy of the natural justice letter to the applicant’s last know postal address. The applicant was invited to comment by 7 March 2024 but there was no reply.
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.
Wendy Banfield
Member

The Administrative Appeals Tribunal (AAT) considered a matter involving an applicant seeking review of a decision concerning their Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the applicant's failure to pay the applicable fee for their application for review and their use of an incorrect application form.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's review. This question hinged on whether the applicant's purported application for review constituted a valid application in accordance with the relevant legislative and regulatory requirements.

The Tribunal determined that the prescribed fee for the application for review had not been paid, nor had any request been made or determination reached regarding a fee reduction. In the absence of these essential requirements, the Tribunal concluded that the application for review was not valid. Consequently, the Tribunal held that it lacked jurisdiction to proceed with the matter.

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