Nguyen (Migration)

[2017] AATA 1879

Nguyen (Migration) [2017] AATA 1879 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Johnny Nguyen

VISA APPLICANT:  Ms Thi Diem Trang Nguyen

CASE NUMBER:  1707944

DIBP REFERENCE(S):  02119854 CLD201714157992

MEMBER:Fiona Meagher

DATE:10 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 10 October 2017 at 5:51pm

CATCHWORDS

Migration – Visitor (Class FA) Visa – Subclass 600 (Visitor) – Request to reduce fee – Failure to pay fee

LEGISLATION

Migration Act 1958, s 65, 347

Migration Regulations 1994, r 4.10, 4.13

CASES

Kirk v MIMA (1998) 87 FCR 99

Braganza v MIMA (2001) 109 FCR 364

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 30 March 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 12 April 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 8 June 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. Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer decided to refuse the request and the applicant was advised of this decision by letter dated 9 May 2017. The applicant was asked to pay the application fee within 14 days of receiving the Tribunal’s letter, namely 23 May 2017. No further payment was received by that date.

5. On 30 May 2017 the Tribunal sent the review applicant a natural justice letter stating that it was of the view that a valid application had not been made and inviting comments by 13 June 2017.

6. On 1 June 2017 the review applicant contacted the Tribunal by telephone and stated that he had not received the refusal of fee reduction letter, although he had received the natural justice letter, notwithstanding that they were sent to the same email address.

7. On 7 June 2017, the review applicant, (via his son), wrote to the Tribunal advising that he was unaware of “any extra payment or date to pay for the review process”. The Tribunal responded, drawing the review applicant’s attention to its letter of 9 May 2017 which included reference to the form “How will you pay your application fee?”.

8. On 3 July 2017, the review applicant sent through credit card details to enable the payment of the outstanding fee and the Tribunal attempted to take the payment twice, and it was declined twice. The Tribunal attempted the payment again at the review applicant’s behest on 7 July 2017, and again it was declined twice. On the afternoon of 7 July 2017, the Tribunal emailed the review applicant advising him that it had attempted to take payment twice on 3 July 2017, and twice on 7 July 2017, and that payment had been declined on all occasions. The Tribunal advised the review applicant that accordingly, the matter was before a  Member and the Tribunal will no longer be attempting to take payment.

9. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Fiona Meagher
    Member