Nicholson (Migration)

[2024] AATA 2659

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, 4.13

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 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).

2. 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.

3. 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.

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 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

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

   Wendy Banfield
   Member