Nacksan (Migration)

[2021] AATA 4854

Nacksan (Migration) [2021] AATA 4854 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ritthichai Nacksan

CASE NUMBER:  2112763

DIBP REFERENCE(S):  BCC2021/1491923

MEMBER:Alison Murphy

DATE:10 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2021 at 4:19pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – application not accompanied by prescribed fee – no response to communications – 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 13 September 2021, to refuse to grant a Bridging E (Class WE) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 21 September 2021. 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.

3. Pursuant to s.347(1) of the Act and r.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 r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 5 October 2021. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. On 21 September 2021 the applicant lodged an application for review online seeking a review of a decision to refuse him a bridging visa. He lodged that application for review on a form relating to the General Division of the Tribunal and he indicated in that form that he did not wish to pay the fee at that time.

5. On the same date a Tribunal officer wrote to the applicant seeking further information as to whether the applicant was in prison or being lawfully detained and attaching the correct forms for completion. That letter noted that if he was not in immigration detention, the fee payable for a review of a bridging visa decision was $3000 or $1500 if a fee reduction application was approved. The Tribunal’s letter noted that there are strict time limits for making an application that could not be extended by the Tribunal and that if a valid application was not made the Tribunal may not be able to review the decision. The applicant did not respond to that letter.

6. On 25 October 2021 a Tribunal officer wrote to the applicant advising that it appeared his review application was not a valid application as the application fee had not been paid. That letter invited the applicant’s comments on whether a valid application had been made. The applicant did not respond to that letter or otherwise make contact with the Tribunal.

7. The applicant has provided the Tribunal with a copy of the delegate’s decision dated 13 September 2021. That decision does not suggest the applicant was in immigration detention when that decision was made, rather it refers to multiple attempts to contact him by phone and email to obtain further information about his visa application. Nor do the Department’s ICSE records indicate that the applicant was in detention at the time he lodged the review application. The applicant has not responded to the Tribunal’s enquiry as to whether or not he is in immigration detention. In these circumstances I am not satisfied the applicant is in immigration detention. Therefore the fee payable for the review is $3000, or $1500 if accompanied by a fee reduction application.

8. In this case, the prescribed period for lodging a valid application for review ended on 5 October 2021. 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.

   Alison Murphy
   Member