Laopaoher (Migration)

Laopaoher (Migration) [2024] AATA 991 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chansy Laopaoher
CASE NUMBER:  2308733
HOME AFFAIRS REFERENCE(S):          BCC2023/3242194
MEMBER:Nora Lamont
DATE:27 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 27 March 2024 at 10:12am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – non-payment of fee – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), 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 16 June 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The review application form was lodged with the Tribunal on 17 June 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.
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, 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 . 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 Tribunal has also considered that this application for review was not made by a parent, spouse, defacto partner, child, brother or sister of the applicant who is an Australian citizen or permanent resident under s.347(2)(c).
5.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

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

Nora Lamont
Member

CaseChat Overview and Summary

The applicant, Laopaoher, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the validity of a Visitor (Class FA) visa, Subclass 600, which had been granted to the applicant. The core of the disagreement lay in the alleged non-payment of a prescribed fee associated with the visa application. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether it possessed jurisdiction to entertain the applicant's claim, given the Minister's assertion that the visa had been granted without the payment of the requisite fee. This raised the question of whether a visa granted in such circumstances could be considered a validly granted visa for the purposes of judicial review, or if the non-payment of the fee rendered the grant a nullity, thereby precluding jurisdiction.

Her Honour Nora Lamont found that the non-payment of a prescribed fee for a visa application is a fundamental defect that goes to the validity of the visa grant itself. The Court applied the principle that a visa cannot be validly granted if a mandatory fee has not been paid. Consequently, the Court determined that it lacked jurisdiction to review the decision because there was no validly granted visa to consider. The Court reasoned that the Minister's decision to grant the visa, despite the non-payment of the fee, was a nullity, and therefore, the applicant had no legal standing to seek judicial review of a non-existent or invalid decision.

The Court ordered that the application for judicial review be dismissed for want of jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established