Nabati (Migration)

Nabati (Migration) [2023] AATA 493 (13 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sandra Nabati
Ms Stephanie KAKONA
CASE NUMBER:  2218263
HOME AFFAIRS REFERENCE(S):          BCC2022/4010732
MEMBER:David McCulloch
DATE:13 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 13 March 2023 at 4:52am
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 21 October 2022, to refuse to grant Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 12 December 2022. 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 . 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.
The Tribunal wrote to the applicant on 20 January 2023 indicating that there did not appear to be a valid application as the prescribed fee had not been paid. The applicant was given the opportunity to respond but did not do so.
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.
David McCulloch
Member

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a Visitor (Class FA) visa, subclass 600. The applicant, identified as Nabati, sought review of a decision related to this visa.

The central legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review. This question hinged on whether the prescribed application fee had been paid, or if a request for fee reduction had been made and determined.

The Tribunal reasoned that the Migration Regulations require the payment of a prescribed fee for an application for review to be valid. In this instance, the fee 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 valid and therefore it lacked jurisdiction to proceed with the matter.

The Tribunal ordered that it did not have jurisdiction in this matter.

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.David McCullochMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established