Nicholson (Migration) [2024] AATA 2659 (11 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Dean Robert Nicholson
CASE NUMBER: 2300050
HOME AFFAIRS REFERENCE(S): BCC2021/565543
MEMBER:Wendy Banfield
DATE:11 July 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 11 July 2024 at 3:40pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicable fee not paid – correct application form not used – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, rr 4.10, 4.13CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Home Affairs, dated 14 December 2022, to refuse to grant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 2 January 2023. 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. 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.
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 15 February 2023. The applicant was asked to pay the application fee within 14 days of receiving the Tribunal’s letter. 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
The Tribunal does not have jurisdiction in this matter.
Wendy Banfield
Member
- AGLC
- Nicholson (Migration) [2024] AATA 2659
- Case
- [2024] AATA 2659
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether it had jurisdiction to hear the applicant's review. This involved considering whether the applicant had complied with the necessary procedural requirements for lodging a valid application for review, specifically in relation to the payment of the application fee.
The Tribunal reasoned that the applicant had been given a reasonable period to pay the application fee after being notified of the refusal of their request for a fee reduction. As the fee remained unpaid within the stipulated timeframe, the Tribunal concluded that the application for review was not valid. Consequently, the Tribunal held that it lacked jurisdiction to proceed with the matter.
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