Kinikini (Migration)

[2019] AATA 4122

Kinikini (Migration) [2019] AATA 4122 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Paige Kinikini

VISA APPLICANT:  Mr Sitiveni Kinikini

CASE NUMBER:  1909352

DIBP REFERENCE(S):  BCC2019/1424573 PNJ

MEMBER:James Silva

DATE:10 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 September 2019 at 12:57pm

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – paid wrong application fee – requested fee reduction – no evidence provided – failed to invoke jurisdiction – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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, dated 12 April 2019, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 15 April 2019. 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 r.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 r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision.

4. The material before the Tribunal indicates that the visa applicant was notified of the decision by letter dated 12 April 2019, dispatched by email. The letter included on page 1 the date of the letter and the prescribed period to apply for review (within 70 calendar days after the day on which visa applicant was taken to have received the letter), and on page 2, advice that he was taken to have received the letter at the end of the day it was transmitted. The Tribunal is satisfied that the letter complied with s.66(2)(d)(ii)[1], and that the visa applicant was notified of the decision in accordance with the statutory requirements.

   [1] The Federal Court in Ali v MHA [2019] FCA 1102, on 12 July 2019, found that a similar notification letter complied with s.66(2)(d)(ii).

5. The prescribed period therefore ended on 21 June 2019. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

6. The review applicant completed and lodged an application for review on 15 April 2019 using the Tribunal’s General Division online lodgement system. The completed form identifies the review applicant and the visa applicant, and gave detailed reasons for the application for review. Attached to it were a copy of the Department’s decision record and the letter of notification. On 18 April 2019, she lodged a completed approved form M1 for the Tribunal’s Migration and Refugee Division (MRD). The Tribunal is satisfied that the form submitted on 15 April 2019 substantially complies with the approved form, and that the review applicant made the application on 15 April 2019.  

7. With the application lodged on 15 April 2019, the review applicant requested a fee reduction, as the holder of a health care card. She made a payment of $100, the reduced fee applicable for applications to the General Division.

8. On 16 April 2019, the Tribunal wrote to the applicant indicating the application fee (full and reduced amounts) payable for migration matters.[2] It stated that if seeking a fee reduction, she should provide further supporting evidence. It explained that the application fee (either the full or the reduced amount) must be paid and (if applicable) a fee reduction application lodged, before the deadline for lodging the application for review, as stated in the Department’s decision letter. Attached to the letter was a copy of the Tribunal’s ‘Request for Fee Reduction’ form for divisions other than MRD. On 13 May 2019, the Tribunal advised the review applicant by email that she had paid an incorrect fee. The email identified and calculated the outstanding amount owing in order for the payment to be addressed, and also advised that, if she wished to apply for a fee reduction, she should complete the correct form and return it to the Tribunal, together with the outstanding amount. Attached to the email were a copy of the MRD Division’s ‘Information for request for fee reduction’, and a blank copy of Form M1, Part 1, ‘Payment details’.

   [2] This letter also addressed the question of the incorrect application form.

9. The review applicant’s last correspondence to the Tribunal was on 18 April 2019, when she lodged the completed MRD application form. The Tribunal has tried several times to contact her by telephone, without success.

10. The Tribunal wrote a natural justice letter to the review applicant on 14 August 2019, inviting her comment on the validity of the application for review, given that she has paid only $100, when the reduced fee is $882 and the full application fee is $1764. It received no reply.

11. The Tribunal finds that the review applicant has not paid the application fee within the prescribed period, ie. 21 June 2019. She asked the Tribunal to reduce the prescribed fee, at the time of lodging the application for review on 15 April 2019. However, the applicant failed to invoke the Tribunal’s jurisdiction, including the Registrar’s assessment under r.4.13(4) to reduce the fee payable to 50% of the amount, since a request for a fee reduction can only be considered in circumstances where the application for review is accompanied by at least half of the prescribed fee and a request for fee reduction, and the fee and request must both be received by the Tribunal prior to the expiry of the prescribed period[3].

    [3] Grey v MIBP [2018] FCCA 1564 at [10]-[11] and [22]

12. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    James Silva
    Member