Opetaia (Migration)

[2017] AATA 2023

Opetaia (Migration) [2017] AATA 2023 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Opetaia

CASE NUMBER:  1723478

DIBP REFERENCE(S):  BCC2017/1979760

MEMBER:A B Baker

DATE:23 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 October 2017 at 4:48pm

CATCHWORDS

Migration – Cancellation – Special Category (Temporary)(Class TY) visa – Subclass 444 (Special Category) – Fees and waiver – Severe financial hardship – No jurisdiction

LEGISLATION

Migration Act 1958, s 347

Migration Regulations 1994, r 4.10, r 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. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 15 September 2017, to cancel the applicant’s Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 28 September 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 6 October 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. In the present case the applicant completed an application for review via the online form eM2 on 29 September 2017. The Tribunal contacted the applicant and his representative (his wife) informing him that only 1/13 pages of the application had been received.

5. Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer decided to grant the request and the applicant was advised of this decision by letter dated 29 September 2017. The applicant was asked to pay the reduced application fee by 6 October 2017. On 6 October the applicant claims that his wife provided the Tribunal with payment details however the Tribunal’s records show that no payment details were received. The applicant was informed of this. On 6 October 2017 the Tribunal also received a number of submissions supporting the applicant and urging the authorities not to remove him from Australia.

6. On 10 October 2017 the applicant wrote to the Tribunal claiming that he has no source of income and cannot pay the reduced fee. The applicant asked for exemption from the fee and for the Tribunal to accept the review without payment of the prescribed fee.

7. The Tribunal is not in a position to waive the fee as the legislation requires that a fee (albeit reduced) is paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   A B Baker
   Senior Member