Lee (Migration)

[2017] AATA 1945

Lee (Migration) [2017] AATA 1945 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ming soon Lee
Mr ming soon Lee
Ms EE YOKE TAN

CASE NUMBER:  1706489

DIBP REFERENCE(S):  BCC2017/685652

MEMBER:Geraldine Hoeben

DATE:18/07/17

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2017 at 5:32pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Review application out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)

Migration Regulations 1994, r 4.10, r 4.13

CASES

Kirk v MIMA (1998) 87 FCR 99
Braganza v MIMA (2001) 109 FCR 364

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 27 March 2017, to refuse to grant Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 29 March 2017. 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. In the present case, the prescribed period ended on 18 April 2017. 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.

4. The Tribunal wrote to the applicant on 0704/17 and informed him that he had not paid the prescribed fee when the visa was lodged on 29/03/17. In that letter the Tribunal put the applicant on notice that the fee was required to be paid before 17/04/17. On 18/04/17 the Tribunal informed the applicant that its preliminary view was that his review application was invalid as he had not paid the prescribed fee by the prescribed date. The applicant was given until 02/05/17 to make any comments on the matter. No comments were received by the Tribunal at any time.

5. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the Tribunal’s preliminary view. However, the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Geraldine Hoeben
   Member