Nguyen (Migration)

This matter concerned an application for review before the Migration and Refugee Division of the Administrative Appeals Tribunal. The applicant, who was outside Australia, sought review of a decision relating to a Visitor (Class FA) Subclass 600 visa. The primary dispute revolved around the validity of the review application, specifically whether it had been properly lodged and whether the Tribunal possessed jurisdiction to hear it.

The Tribunal was required to determine two key legal issues. Firstly, whether the application for review was validly made given that the prescribed fee had not been paid and no request for a fee reduction had been made. Secondly, the Tribunal had to consider whether the applicant was the correct party to lodge the review application, particularly in light of the nature of the decision under review and the provisions of the Migration Act 1958 (Cth).

Member Sripathy reasoned that the failure to pay the prescribed fee rendered the application for review invalid, thereby ousting the Tribunal's jurisdiction. Furthermore, the Tribunal noted that the decision under review fell within the ambit of section 338(5) of the Migration Act 1958 (Cth), which stipulated that only the sponsor, not the visa applicant, could make an application for review in such circumstances. As the applicant was outside Australia and not the sponsor, the review application was not properly made under section 347 of the Act. Consequently, the Tribunal concluded it lacked jurisdiction to consider the matter. The Tribunal ordered that it did not have jurisdiction in this matter.