Rajalingam (Migration)

[2023] AATA 72

Rajalingam (Migration) [2023] AATA 72 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mathura Rajalingam

VISA APPLICANTS:  Mr Kathirgamu Balasuntharam Rajalingam
Mrs Indradevi Rajalingam

CASE NUMBER:  2209785

HOME AFFAIRS REFERENCE(S):          BCC2022/544159

MEMBER:Alison Murphy

DATE:12 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 January 2023 at 9:33am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed application fee not paid – no response to tribunal’s invitation to comment – no valid application – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)
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 Home Affairs, dated 12 May 2022, to refuse to grant Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 5 July 2022. 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 reg 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 reg 4.10, and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 21 July 2022. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. On 7 July 2022 a Tribunal officer wrote to the applicant, advising her among other things that it is a requirement that the application fee is paid before the prescribed review period has ended and attaching details of how that fee could be paid. The Tribunal’s correspondence also noted that there are strict time limits for making a valid review application that cannot be extended by the Tribunal and if a valid application was not made the Tribunal may not be able to review the decision. The applicant did not respond to the Tribunal’s correspondence.

5. On 22 July 2022 a Tribunal officer wrote to the applicant, advising her that their review application may not be a valid application as she did not pay the application fee before the expiry of the time limit for lodging the application. The Tribunal’s correspondence invited her comments as to whether a valid application had been made. The applicant did not respond to the Tribunal’s correspondence.

6. Having examined the Tribunal file, I am satisfied 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.

   Alison Murphy
   Member