Nguyen (Migration)

[2018] AATA 817

Nguyen (Migration) [2018] AATA 817 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Kim Luyen Nguyen

CASE NUMBER:  1732719

DIBP REFERENCE(S):  BCC2017/4319237

MEMBER:Meena Sripathy

DATE:20 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2018 at 2:48pm

CATCHWORDS

Migration – Visitor (Class FA) – Subclass 600 (Visitor) – Applicant did not pay prescribed fee – Requirement for sponsor to lodge application – Applicant not eligible to lodge application

LEGISLATION

Migration Act 1958, ss 65, 338(5), 347(1)(b), 347(2)(c)

Migration Regulations 1994, rr 4.10, 4.13(4)

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 19 December 2017, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 22 December 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 27 February 2018. 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. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(5), an application for review may only be made by the sponsor referred to in the subsection concerned: s.347(2)(c).

5. The Tribunal attempted to contact the applicant by email on 22 December 2017, 3 January 2018, 8 January 2018 and 9 January 2018, to advise of fee, form and standing requirements to make a valid application for review, but has received no responses.

6. On 1 March 2018 the Tribunal wrote to the applicant to invite her to comment on the validity of the application for review as she does not appear to be a person who is entitled to apply for review of this application (being a parent/ spouse/ de facto partner/ child/ brother/ sister of the visa applicant who is an Australian citizen or permanent resident and whose particulars were included in the application, the application was not made on the approved form (Form M1- Application Form Migration) and the application fee had not been paid.  No response to any of the Tribunal’s letters has been received to date.

7. 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. Additionally, as the decision that is the subject of the review application is a decision covered by s.338(5), the application for review could only be made by the sponsor. In the present case, the review application was made by visa applicant, who was outside Australia at the time. As such, the application for review is not an application properly made under s.347 and it follows for this reason also that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Meena Sripathy
   Member