NATIONAL CARE PLUS PTY LTD (Migration) - [2024] AATA 1642

NATIONAL CARE PLUS PTY LTD (Migration) [2024] AATA 1642 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NATIONAL CARE PLUS PTY LTD
CASE NUMBER:  2401850
HOME AFFAIRS REFERENCE(S):          BCC2023/1131559
MEMBER:Paul Windsor
DATE:24 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 24 May 2024 at 3:35 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – employer nomination scheme – prescribed application fee not paid – technical errors – two applications and fees processed – no jurisdiction
LEGISLATION
Migration Act 1958 (Cth), s 347(1)
Migration Regulations 1994 (Cth), rr 4.10, 4.13, 5.19(3)
CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant lodged an application for review of a decision of a delegate of the Minister for Home Affairs, dated 16 January 2024, refusing to approve a nomination under the Employer Nomination Scheme, under regulation 5.19(3) of the Migration Regulations 1994.
The review application form was lodged with the Tribunal on 5 February 2024. 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 6 February 2024. 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 authorised recipient on 19 April 2024 advising him that it is of the view that the application for review is not a valid application because the application fee has not been paid.
The authorised recipient replied on 10 May 2024, commenting that they completed payment for the review application on 5 February 2024 but due to technical errors in the Tribunal’s portal, two payments were processed. He added that one payment was refunded and the other was processed in time for the lodgement. He attached copies of receipts for the two payments, dated 5 February 2024; a request to the Tribunal’s Migration and Refugee Division and the Tribunal’s Finance Section that a duplicate application created (case 2401853) be deleted and the fee refunded; a copy of the company’s National Australia Bank (NAB) account details for refund of the fee; and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NATIONAL CARE PLUS PTY LTD (Migration) [2024] AATA 1642
Case: [2024] AATA 1642
Decision Date: 24 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review made by National Care Plus Pty Ltd concerning the approval of a nomination of position under the employer nomination scheme. The central dispute revolved around the payment of the prescribed application fee.

The primary legal issue before the Tribunal was whether the application for review was validly made, specifically whether it was accompanied by the prescribed fee at the time of lodgement and within the prescribed period. The Tribunal was required to determine if it possessed jurisdiction to hear the matter given the circumstances surrounding the fee payment.

The Tribunal reasoned that the application fee of $3,374.00, although initially deducted from the Tribunal's accounts, was subsequently returned to the applicant. Consequently, the Tribunal concluded that the application was not accompanied by the prescribed fee when it was made, nor was it made within the prescribed timeframe for payment. As no determination had been made or requested for a fee reduction, the Tribunal found that the prescribed fee had not been paid. This failure meant the application was not valid, and therefore, the Tribunal lacked jurisdiction to proceed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that, as the payment of $3,374.00 for the application for review made for National Care Plus Pty Ltd was not authorised and has been deducted from the Tribunal’s accounts and returned to the applicant, the application for review is considered not to have been accompanied by the prescribed fee at the time it was made and not to have been made within the prescribed period for making it. Accordingly, 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.Paul WindsorMember

Ratio Decidendi

Legal Principle Established

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