Singh (Migration)

Singh (Migration) [2024] AATA 325 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sarojini Devi Singh
CASE NUMBER:  2305768
HOME AFFAIRS REFERENCE(S):          BCC2023/1429336
MEMBER:Sean Baker
DATE:22 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 22 February 2024 at 10:07pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – application fee not paid – standing to apply – specified persons entitled to apply – no response to tribunal’s correspondence – no jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b), (2)(c)
Migration Regulations 1994 (Cth), rr 4.10
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 23 March 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 25 April 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. 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 person who is entitled to apply to us in relation to this decision is parent / spouse / de facto partner / child / brother / sister of the visa applicant(s) who is an Australian citizen or permanent resident and whose particulars were included in the visa application: s.347(2)(c).
In this case the fee has not been paid and nor has the standing issue been rectified. The Tribunal has corresponded with the applicant on two occasions noting these defects. The applicant has not responded.
Given the non response, the Tribunal has decided to proceed to assess the jurisdiction of the application.
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
The Tribunal does not have jurisdiction in this matter.
Sean Baker
Member

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a Visitor (Class FA) visa. The applicant, Mr. Singh, had lodged an application for review with the Tribunal.

The central legal issue before the Tribunal was whether it had jurisdiction to consider Mr. Singh's application for review. This question turned on whether Mr. Singh's application was a "valid application" for review, which in turn depended on whether the prescribed application fee had been paid.

The Tribunal reasoned that the Migration Regulations require the payment of a prescribed fee for an application for review to be valid, unless a reduction or waiver of that fee has been determined. In this instance, the prescribed fee had not been paid, and no request for a fee reduction or waiver had been made or determined. Consequently, the Tribunal concluded that Mr. Singh's application for review was not a valid application, and therefore the Tribunal lacked jurisdiction to proceed with the matter.

The Tribunal determined that it did not have jurisdiction in this matter.

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Sean BakerMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established