Nguyen Huy (Migration)

[2021] AATA 5505

Nguyen Huy (Migration) [2021] AATA 5505 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Phuong Anh Nguyen Huy

CASE NUMBER:  2100818

HOME AFFAIRS REFERENCE:               BCC2018/2080619

MEMBER:Lilly Mojsin

DATE:23 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2021 at 1.00 pm

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – required application fee paid after prescribed period – no valid application – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347(1)(b)

Migration Regulations 1994 (Cth), rr 4.10, 4.13

CASE

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 25 January 2021, to refuse to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 25 January 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 15 February 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. The Tribunal wrote to the applicant on 1 March 2021 advising that the applicant had not paid the required fee. The applicant responded advising that she made an error.  The Tribunal received payment of the fee on 1 March 2021. However, the prescribed period for making the application ended on 15 February 2021. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Lilly Mojsin
   Member