Manghihilot (Migration)

[2024] AATA 3908

Manghihilot (Migration) [2024] AATA 3908 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pia Marie Manghihilot

CASE NUMBER:  2315050

HOME AFFAIRS REFERENCE(S):          BCC2023/4244882

MEMBER:Melissa McAdam

DATE:6 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2024 at 9:44am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – half of prescribed fee paid with application – request for reduction of fee refused, but two extensions of time granted – remainder of fee not paid – no response to invitation to comment – department’s notification did not state time in which application may be made – no valid notification and prescribed period has not started to run – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1), 494D
Migration Regulations 1994 (Cth), rr 4.10, 4.13

CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
Sandor v MICMA [2023] FCA 434

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 15 September 2023, to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 22 September 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. 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. With her review application the applicant paid half the prescribed review fee.  The applicant asked the Tribunal to reduce the prescribed fee. An authorised officer decided to refuse the request and the applicant was advised of this decision by letter dated 16 February 2024. The applicant was asked to pay the prescribed fee in full by 1 March 2024.

5. On 20 February 2024 the applicant wrote to the Tribunal to ask for an extension of time in which to pay the remainder of the prescribed fee.

6. On 21 February 2024 an authorised officer of the Tribunal granted the applicant an extension of time to 19 March 2024 in which to pay the fee.

7. On 18 March 2024 the applicant telephoned the Tribunal and requested further time in which to pay the remainder of the prescribed fee.  The Tribunal wrote to the applicant informing her that an extension of time until 12 April 2024 was granted.

8. On 19 March 2024 the applicant telephoned the Tribunal again to inform it that she would not be paying the remainder of the fee.

9. On 7 May 2024 the Tribunal wrote to the applicant inviting her to comment on the issue of the validity of her review application given the review application fee had not been paid within a reasonable time.  The applicant was invited to provide her response by 21 May 2024.  To date the Tribunal has not received a response from the applicant.

10. The Tribunal considers the applicant has been given a reasonable period to pay the prescribed fee since being notified of the authorised officer’s decision; 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.

11. The Tribunal notes that the Department’s notification letter did not ‘state’ the time in which the application for review may be made, because it did not explain that this time period is calculated from when the applicant’s authorised recipient is taken to have received the notification letter (as this is also when the applicant is taken to have received it): ss 494D(1) and 494D(2) of the Act. This means that the prescribed period in which to apply for review has not yet started to run, as the applicant does not appear to have been validly notified of the primary decision: Sandor v MICMA [2023] FCA 434. In these circumstances, if the applicant were to make a new review application to the Tribunal, it would not be invalid on the basis of being lodged out of time. However, if the Department validly notifies the primary decision, the prescribed period will start to run.

    DECISION

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

    Melissa McAdam
    Member