Reyneke (Migration)

Reyneke (Migration) [2023] AATA 3177 (19 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kelton Reyneke
VISA APPLICANT:  Mrs Chayata Sarasuk Broddle
CASE NUMBER:  2308483
HOME AFFAIRS REFERENCE:               BCC2023/3276949
MEMBER:Kate Chapple
DATE:19 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 19 September 2023 at 12:17pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – prescribed fee – non-payment of fee – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 338, 347
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs dated 14 June 2023 to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 15 June 2023. 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.
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 23 August 2023. 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.
The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced.
The review applicant has not responded to the Tribunal’s letter dated 24 August 2023 inviting him to comment on the validity of his application for review.
In these circumstances, the application for review is not a valid application.
DECISION
The Tribunal does not have jurisdiction in this matter.
Kate Chapple
Member

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Review Tribunal. The applicant, Ms Reyneke, sought to challenge a decision related to her Visitor (Class FA) visa, Subclass 600. The core of the dispute revolved around the prescribed fee for the visa application.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear Ms Reyneke's application for review, given the circumstances surrounding the payment of the prescribed fee. The Tribunal was required to determine if the non-payment of the fee rendered the application invalid and, consequently, deprived the Tribunal of its jurisdiction.

The Tribunal, constituted by Member Kate Chapple, found that the application for review was not valid due to the non-payment of the prescribed fee. Consequently, the Tribunal concluded that it lacked jurisdiction to proceed with the review. The decision was that the application for review was not a valid application and the Tribunal did not have jurisdiction in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established