Phan (Migration)

[2018] AATA 3005

Phan (Migration) [2018] AATA 3005 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Laun Phan

CASE NUMBER:  1807310

DIBP REFERENCE(S):  BCC2018/986954

MEMBER:Nicola Findson

DATE:4 July 2018

PLACE OF DECISION:  Perth

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

Statement made on 04 July 2018 at 10:56am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – 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 Immigration, dated 17 March 2018, 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 March 2018. 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 28 May 2018. 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. The applicant lodged her application for review online on 18 March 2018.  She applied for the review using the incorrect form, which indicated no fee was required.  An officer of the Tribunal wrote to the applicant on 21 March 2018 and advised the application for review required an application fee to be provided within the required time, and that the applicant could apply for a reduction of the prescribed fee.    On 3 April 2018, an officer of the Tribunal attempted to contact the applicant by mobile phone.  When the applicant did not answer her phone, a message was left on her voicemail requesting that she contact the Tribunal about her application for review.  The applicant did not respond to the Tribunal’s message.

5. On 13 June 2018, the Tribunal sent a letter to the applicant’s email address, inviting comments in relation to the validity of her application by 27 June 2018, as the application fee had not been paid before the expiry of the time limit for lodging the application.

6. The Tribunal did not receive any response to its letter dated 13 June 2018 from the applicant.  The Tribunal has not received payment of the application fee for the application for review.

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.

   DECISION

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

   Nicola Findson
   Member