Kumar (Migration)

[2023] AATA 569

Kumar (Migration) [2023] AATA 569 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurdeep Kumar

REPRESENTATIVE:  Mrs Payal Narula (MARN: 1568847)

CASE NUMBER:  2203338

HOME AFFAIRS REFERENCE(S):          BCC2021/2085876

MEMBER:Michael Bradford

DATE:16 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2023 at 10:56am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – two applications to review the same decision have been lodged – application fee had not been paid – no determination has been made that the fee should be reduced – invalid application –no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347

Migration Regulations 1994, r 4.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 8 March 2022, cancelled the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. The Review Application was lodged in the Queensland Registry of the Tribunal later on that date but, for the following reasons, I have concluded that the Tribunal has no jurisdiction to review the decision on this application because it has not been made in accordance with the relevant legislation.

3. The jurisdictional issue has arisen because the applicant appears to have, or the Tribunal’s records in any event indicate, that two applications to review the same decision have been lodged, the other one having been filed in the Sydney Registry on 9 March 2022 (Case no. 2203366).    

4. On 10 April 2022 the applicant’s representative, Ms Payal Narula, sent an email to the Tribunal in which she confirmed that the filing fee payable on the application in this case had not been paid. In the email she also stated that the filing fee was paid when the other application was filed in the Sydney Registry, that no further filing fee was payable on this application and that it was, consequently, invalid.

5. The Tribunal’s records confirm as much. Receipt no. 206819554306 in relation to Case no 2203366 acknowledges receipt of the sum of $3,000, this being the prescribed fee, whereas Receipt no. 154715 in relation to this application records that no payment was made.

6. Pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994 the application which was filed to commence the review in this case had to be filed in the Tribunal within the prescribed period and be accompanied by the prescribed fee unless a determination has been made under reg 4.13 (4) that the fee should be reduced. In this case the application was lodged within the prescribed period but it is an agreed fact that the filing fee on this application has not been paid.

7. It is unnecessary for me to explore how or why this procedural glitch has come about given the concessions which the applicant has made in the email referred to earlier.

8. I also note that a merits hearing in Case no 2203366 took place before me on 10 February 2022 and that an ex tempore oral decision in that case has been made.

9. In these circumstances, the application for review in this case is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Michael Bradford
    Member