Mollel (Migration)

Mollel (Migration) [2023] AATA 1982 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Loth Mollel
VISA APPLICANT:  Ms Tamara Loth Mollel
CASE NUMBER:  2301021
HOME AFFAIRS REFERENCE(S):          BCC20224457280
MEMBER:Jane Marquard
DATE:27 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 27 June 2023 at 9:16am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicable fee not paid – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs, dated 27 January 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 27 January 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.
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 11 April 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 1 February 2023 the Tribunal wrote to the review applicant to notify him that the prescribed fee had not been paid with the application and inviting him to pay within the prescribed period. No response was received.
On 17 April 2023 the Tribunal wrote to the applicant to notify him that it appeared that it had no jurisdiction in the matter as the prescribed fee had not been paid within the prescribed period. He was invited to comment or respond by 1 May 2023, but no response was received.
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.
Jane Marquard
Member

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Review Tribunal. The applicant, identified as Mollel, sought to challenge a decision relating to a Visitor (Class FA) visa, Subclass 600. The core of the dispute revolved around the payment of the prescribed fee for the application for review.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's case. This question hinged on whether the application for review had been validly made, specifically in light of the non-payment of the applicable fee.

The Tribunal determined that the prescribed fee for the application for review had not been paid, and no request had been made for a reduction of that fee. In the absence of such payment or a request for reduction, the Tribunal concluded that the application for review was not a valid application. Consequently, the Tribunal held that it lacked jurisdiction to consider the merits of the applicant's case. The Tribunal therefore made no orders on the substance of the application, as it had no jurisdiction to do so.

Reasons for decision

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.Jane MarquardMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established