Mogar (Migration)

[2023] AATA 2704

Mogar (Migration) [2023] AATA 2704 (18 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonard Mogar

CASE NUMBER:  2305770

HOME AFFAIRS REFERENCE(S):          BCC20232265170 PNJ

MEMBER:Peter Papadopoulos

DATE:18 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2023 at 12:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – prescribed fee was not paid within the prescribed period – no determination has been made that the fee should be reduced – applicant was not entitled to apply to the tribunal – no standing – invalid application –no jurisdiction

LEGISLATION

Migration Act 1958, ss 565, 338, 347, Schedule 2

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. An application has been lodged for review of a decision of a delegate of the Minister for Home Affairs, dated 25 April 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(5) of the Act.

2. The review application was lodged with the Tribunal on 25 April 2023. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s 347(2)(b).

4. 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 4 July 2023. 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.

5. On 16 June 2023, the Tribunal wrote to the applicant and informed him that it appeared his application was not a valid application as the application fee had not been paid. In that same letter the Tribunal explained to the applicant that the person who is entitled to apply to the Tribunal in relation to this decision is the parent, spouse, de facto partner, child, brother or sister of the visa applicant(s) who is an Australian citizen or permanent resident and whose particulars were included in the visa application. The Tribunal further informed the review applicant that she was not that person. The review applicant was invited to comment on whether a valid application had been made in writing by 30 June 2023.

6. No response was received to the Tribunal’s invitation.

7. As the decision that is the subject of the review application is a decision covered by s 338(7), the application for review could not be made by the visa applicant. As such, the application for review is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

8. Furthermore, 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

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

   Peter Papadopoulos
   Member