Smith (Migration) [2023] AATA 1936 (23 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Rita Smith
VISA APPLICANT: Mr Emmanuel Ian Osome
CASE NUMBER: 2303446
MEMBER:Joseph Lindsay
DATE:23 May 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 23 May 2023 at 11:28am
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, Schedule 2
Migration Regulations 1994, rr 4.10, 4.13
CASES
Braganza v MIMA (2001) 109 FCR 364
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 9 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 (but not in the approved form) was lodged with the Tribunal on 10 March 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 . 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. 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.
Joseph Lindsay
Member
- AGLC
- Smith (Migration) [2023] AATA 1936
- Case
- [2023] AATA 1936
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal was required to determine whether it had jurisdiction to hear the application for review. This question of jurisdiction hinged on whether the application for review was validly made, which in turn depended on the payment of the visa application fee.
The Tribunal, constituted by Member Joseph Lindsay, reasoned that the prescribed fee for the visa application had not been paid. Furthermore, no determination had been made, nor had a request been made for a determination, that the fee should be reduced. In the absence of these conditions being met, the Tribunal concluded that the application for review was not a valid application. Consequently, the Tribunal held that it lacked jurisdiction to proceed with the matter.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
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