Nakagawa (Migration)

[2017] AATA 2446

Nakagawa (Migration) [2017] AATA 2446 (24 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hiroki Nakagawa

CASE NUMBER:  1727020

DIBP REFERENCE(S):  BCC2017/2936560

MEMBER:Mr S Norman

DATE:24 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2017 at 4:25pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Application not in approve form – Prescribe fee not paid

LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, r 4.10, r 4.13

CASES
Kirk v MIMA (1998) 87 FCR 99
Braganza v MIMA 109 FCR 364

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 24 October 2017, to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 2 November 2017. 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 2 November 2017. 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. By letter of 9 November 2017, the Tribunal advised the applicant that his merits review application may be invalid as it was not made in the approved form and no fee had been paid. The applicant was asked to respond to this letter in writing by 23 November 2017. No response was lodged in that time.

5. That being said, 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

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

   Mr S Norman
   Member