Shahbake (Migration)

[2023] AATA 580

Shahbake (Migration) [2023] AATA 580 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohsen Shahbake

VISA APPLICANT:  Mrs Zinabkhatoon Vahedi

CASE NUMBER:  2215572

HOME AFFAIRS REFERENCE(S):          BCC2022/3207181

MEMBER:Brendan Darcy

DATE:6 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 February 2023 at 8:55am

CATCHWORDS

MIGRATION – Visitor (Class FA) 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 Home Affairs, dated 22 September 2022, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 22 October 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 . 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 23 December 2023, the Tribunal invited the review applicant to comment on validity of the application for review, and to do so by 9 January 2023.

5. The Tribunal received an email from the applicant on 23 December 2023. The applicant indicated he wished to receive a refund.

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.

   Brendan Darcy
   Member