Kishi (Migration)

[2022] AATA 1838

Kishi (Migration) [2022] AATA 1838 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kaori Kishi
Mr Yasushi Kishi 
Miss Akari Kishi
Miss Soyogi Kishi 

CASE NUMBER:  2117871

HOME AFFAIRS REFERENCE(S):          BCC2020/160353

MEMBER:Angela Julian-Armitage

DATE:16 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2022 at 10:24am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa –prescribed fee has not been paid – invalid application – 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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs, dated 18 October 2021, to refuse to grant GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 29 November 2021. 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 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 together with the prescribed fee unless a determination has been made pursuant to reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is provided for 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 8 November 2021. 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.

4. The prescribed fee has not been paid nor has there been a determination made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application rendering the Tribunal without jurisdiction in this matter.

   DECISION

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

   Angela Julian-Armitage
   Member