Muhammadi (Migration)

[2023] AATA 3847

Muhammadi (Migration) [2023] AATA 3847 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussain Ali MUHAMMADI

CASE NUMBER:  2307851

HOME AFFAIRS REFERENCE:               BCC2023/2994837

MEMBER:L Symons

DATE:8 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2023 at 1:13pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – non-payment of fee – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), 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 2 June 2023, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 4 June 2023. It was not accompanied by the prescribed fee. On 5 June 2023, an authorised officer wrote to the applicant by email and informed him that the incorrect application form had been used, he did not have standing to apply and the application fee had not been paid. He was provided with the correct application form, informed where to find who had standing to apply and advised to pay the application fee of $3,153.00 within the prescribed time.

3. On 14 August 2023, an authorised officer wrote to the applicant, noted that he did not appear to have a valid application as the application fee had not been paid within the prescribed time and invited him to comment on the validity of his application in writing on or before 28 August 2023. The Tribunal did not receive a response.  

4. 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.

5. 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 August 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.

6. The prescribed fee was not paid on or before the expiry of the prescribed period being 11 August 2023. A completed Form M11 Request for Fee Reduction Form was not received on or before 11 August 2023. No determination has been made that the fee should be reduced. The applicant did not provide a comment on the validity of his application by 28 August 2023. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

7. In addition, as the decision that is the subject of the review application is a decision covered by s 338(7), the application for review could only be made by the relative referred to in that subsection. In the present case, the review application was 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.

   DECISION

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

   L. Symons
   Member