Pham (Migration)

[2020] AATA 1149

Pham (Migration) [2020] AATA 1149 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lam Quoc Bao Pham

VISA APPLICANTS:  Thi Bay Cao

CASE NUMBER:  1919516

DIBP REFERENCE(S):  

MEMBER:Brendan Darcy

DATE:2 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2020 at 10:58am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – approved application form not used – prescribed fee not paid – no application for reduction or waiver of fee – no response to tribunal’s invitation to comment on validity of application – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b)
Migration Regulations 1994 (Cth), rr 4.10, 4.13(4)

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 Immigration, dated 30 May 2019, 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 18 July 2019. 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 August 2019. 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. On 19 November 2019, the Tribunal emailed the applicant to invite him to comment on the validity of the review application, and to do so, in writing, by 3 December 2019. In that invitation it was raised with the applicant that the Tribunal application fee had not been paid, and that the approved form for a valid application had not been used.

5. Neither the applicant nor anyone on the applicant’s behalf responded or provided any submissions, right up until the time of this decision was made.

6. The Tribunal has examined the applicants’ recorded interactions and there is no evidence that any part of the application fee has been paid. Neither is any recorded request to have the Tribunal application fee reduced or waived.

7. The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

8. The Tribunal acknowledges the request to withdraw this application for review. As the review application was not valid, it is not possible to withdraw it.

   DECISION

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

   Brendan Darcy
   Member