MFOLO (Migration)

[2018] AATA 84

MFOLO (Migration) [2018] AATA 84 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Elizabeth MFOLO
Mr Ikechukwu NWOKORIE

CASE NUMBER:  1731220

DIBP REFERENCE(S):  

MEMBER:R. Skaros

DATE:18 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2018 at 10:04am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Application fee not paid within prescribed period – Fee reduction request not lodged within prescribed period

LEGISLATION
Migration Act 1958, ss 65, 347(1) (b)
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 6 December 2017, to refuse to grant Bridging E (Class WE) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 11 December 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 27 December 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 applicants applied for review using form eR1, which the Tribunal notes is the form for review of protection visa decisions. Because they did not use the correct form they were able to lodge the application for review online without payment of the prescribed fee. On 18 December 2017 an officer of the Tribunal wrote to the applicants’ authorised representative advising that an application fee was required to be paid for the review application to be valid. The officer also provided a link to the relevant form (M1) and requested the applicants to at least complete the payment page by 27 December 2017 as this was the last day they could validly make the review application. No payment was received before the prescribed period ended.

5. On 4 January 2018 the Tribunal wrote to the applicants inviting them to comment on the validity of the application for review. The Tribunal noted that the application for review does not appear to be valid as the application fee had not been paid within the prescribed period. In response, the applicant’s representative provided a fee reduction request form and supporting documents regarding the applicant’s funds and expenses. 

6. The Tribunal has had regard to the information provided regarding the applicants’ financial circumstances however it has no power to accept an application that was not validly made. In this case, the prescribed fee has not been paid and nor was the application accompanied by a fee reduction request within the prescribed period for lodging the review application. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   R. Skaros
   Member