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

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.
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.
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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mogar (Migration)

Details

AGLC: Mogar (Migration) [2023] AATA 2704
Case: [2023] AATA 2704
Decision Date: 18 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a matter concerning a Visitor (Class FA) visa application. The applicant sought review of a decision, but the primary issue revolved around the payment of the prescribed fee for the visa application.

The central legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's appeal. This question hinged on the validity of the application for review, which in turn depended on whether the prescribed fee had been paid within the stipulated timeframe, and whether any request for a fee reduction had been made or determined.

The Tribunal reasoned that the prescribed fee for the visa application had not been paid, nor had any determination been made or requested regarding a reduction of that fee. Consequently, the Tribunal concluded that the application for review was not a valid application. As a result, the Tribunal determined that it lacked jurisdiction to proceed with the matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Peter PapadopoulosMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.