Okeke (Migration)

[2020] AATA 4645

Okeke (Migration) [2020] AATA 4645 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anthony Okeke
Ms Joy Okaro
Ms Chiamaka Okaro

CASE NUMBER:  2006456

DIBP REFERENCE(S):  BCC2016/2522717

MEMBER:Wan Shum

DATE:26 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2020 at 1:58pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) – Subclass 189 (Skilled – Independent) – payment of application fee – request for fee reduction – no payment within prescribed period and half payment later – no valid application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), rr 4.10, 4.13

CASES
Grey v MIBP [2018] FCCA 1564
Jahangir v MIBP [2018] FCCA 902

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 10 March 2020, to refuse to grant Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 31 March 2020. The form was accompanied by a copy of the decision and notification as well as a request for a fee reduction. An officer of the Tribunal wrote to the first named applicant (the applicant) on 31 March 2020 regarding his application, noting that the applicant had requested a fee reduction but had not provided details for payment of any fee payable. A second email sent later that same day queried whether the applicant had intended to include his dependents in the application. A notification of receipt of the application was sent to the applicant on 1 April 2020, and later that day the Tribunal received an email from the applicant stating that he was in custody and needed a few more days to arrange for someone to make the payment and advised that he wanted to include the second and third named applicants.

3. Nothing further was received and an officer of the Tribunal wrote to the applicant on 7 April 2020 to advise him that, as the fee had not been paid, the application appeared to be invalid and invited him to provide comments by 21 April 2020. The Tribunal then received payment of half the prescribed fee on 23 April 2020 and a letter in which the applicant apologised for the delay and explained that this was “mainly due to unforeseen (sic) circumstances beyond his control including centre lockdown, community lockdown, hardship and so on”.

4. The Tribunal has had regard to his response and apology for the late payment of the fee. However, an application for review must be made in accordance with the legislation.

5. Relevantly, s.347(1) of the Act and r.4.13 of the Migration Regulations 1994 provide that the 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. Where the applicant is seeking a fee reduction, both the fee reduction request and full or half fee payment must be made within the prescribed period: Grey v MIBP [2018] FCCA 1564 at [10]–[11], [22]; Jahangir v MIBP [2018] FCCA 902 at [27]–[28]). 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 31 March 2020.

6. While the applicant asked the Tribunal to reduce the prescribed application fee before the prescribed period expired, he did not provide payment until after the prescribed period expired. Therefore, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Wan Shum
   Member