Sayeed (Migration)

[2021] AATA 4289

Sayeed (Migration) [2021] AATA 4289 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jasiha Sayeed

CASE NUMBER:  2112677

DIBP REFERENCE(S):  BCC2020176814

MEMBER:Mr S Norman

DATE:20 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 October 2021 at 10:20am  

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – application fee had not been paid – no determination has been made that the fee should be reduced – 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 2 September 2021, to refuse to grant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 19 September 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 23 September 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. By letter dated 5 October 2021 (dispatched by email), the Tribunal advised the applicant it was of the view that her merits review application was not valid as she did not pay the application fee before the expiry of the time limit for lodging the application (being 23 September 2021). The applicant was requested to comment in writing by 19 October 2021.

5. By email dated 6 October 2021, the applicant said she ‘filled out the payment page and emailed the required details for her bank card’ (after the expiry date for merits review). By email of 13 October 2021, the applicant also said inter alia that on 24 September 2021, a Tribunal officer had failed to assist her to apply for a fee reduction; that she was misinformed; that she attempted to pay the relevant fee; that she had trouble with the Tribunal website; but she believed she had paid the fee and she is now confused.

6. However, the information before the Tribunal included that the applicant’s last day to apply for merits review was 23 September 2021; and that a (invalid) request for fee reduction was lodged 29 September 2021.

7. That being said, the prescribed fee was not paid within the prescribed period, and no valid determination has been made 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.

   Mr S Norman
   Member