Pichaiyut (Migration)

[2021] AATA 3432

Pichaiyut (Migration) [2021] AATA 3432 (9 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krittapot Pichaiyut

CASE NUMBER:  2107392

MEMBER:Nicole Burns

DATE:9 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2021 at 2:21pm

CATCHWORDS

MIGRATION – Bridging C (Class WC) visa – application was not made on the approved form –prescribed fee has not been paid – 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 25 May 2021, to refuse to grant a Bridging C (Class WC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 7 June 2021. 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 15 June 2021. 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. Two jurisdiction matters arise in this case.  First, the application fee has not been paid and second the application was not made on the approved form: that is Form M1 – Application Form Migration.  The applicant was meant to apply on a M1 form with associated review fee payment by 15 June 2021.  A Tribunal officer made several attempts[1] to contact the applicant to discuss and clarify these matters prior to 15 June 2021, but there was no response. 

   [1] Specifically telephone calls on 8 June 2021 and 15 June 2021 which went straight to voicemail, and an email on 8 June 2021.

5. On 21 June 2021 the Tribunal wrote to the applicant inviting his comments on its preliminary view that his review application was invalid because it was made on the incorrect form and no application fee had been paid.  No response was forthcoming.

6. 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

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

   Nicole Burns
   Member