LOUKA (Migration)

[2019] AATA 50

LOUKA (Migration) [2019] AATA 50 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mourine LOUKA

VISA APPLICANT:  Ms Teriza Aziz Fahim Halfa

CASE NUMBER:  1831011

DIBP REFERENCE(S):  BCC2018/3503091

MEMBER:James Silva

DATE:4 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2019 at 5:36pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicable fee not paid – correct application form not used – specified member of the family unit– no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 337, 338, 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 Immigration, dated 18 October 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 19 October 2018. 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 27 December 2018. 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. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c). This specifies a parent, spouse, de facto partner, child, brother or sister of the non-citizen.

5. An application for review of a Part 5-reviewable decision must be in the approved form or in a form which substantially complies with the approved form. For the purposes of s.347, the approved form for applicants not in detention is M1 (or eM1). However, where a form other than the approved form is used, or the approved form is used but is incorrectly or incompletely filled in, the application may still be valid having regard to the principles of substantial compliance.

6. In the present case, the review applicant made only a partial payment of the prescribed fee ($920 of the full fee of $1,764). Also, she identified the visa applicant as her mother-in-law; hence, the review applicant is the daughter-in-law of the visa applicant. Finally, the review applicant did not make the application on the prescribed form M1 (or eM1), but rather a form that applies to the AAT’s Social Services and Child Support Division. She attached a copy of the decision under review to the application form, and described the reasons why she was seeking review.

7. The Tribunal wrote to the review applicant on 23 October 2018, 24 October 2018 and again on 15 November 2018. The last of these letters invited the review applicant to comment on the validity of the application for review, with respect to the prescribed fee, her standing to lodge a valid application and the application not being in the approved form. The review applicant responded on 25 November 2018 that she did not realise that she was ineligible to seek review and she had not known what form to use. She did not seek a reduction of the fee, but rather requested that the matter be finalised and her part-payment of the prescribed fee be refunded. The Tribunal has before it notes from telephone conversations between the review applicant and Tribunal staff. These are consistent with the written advice of 25 November 2018.      

8. 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.

9. Also, as the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by a relative as set out in s.337(7)(c), which includes a child. In this case, the review application was made by the visa applicant’s daughter-in-law. The application for review is therefore not an application properly made under s.347. The Tribunal does not have jurisdiction in this matter, for this reason too.

10. In light of the above findings, it is unnecessary for the Tribunal to determine whether the application for review is also invalid because it was not in the approved form or in a form that substantially complied with the approved form.

    DECISION

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

    James Silva
    Member