Snice (Migration)

Snice (Migration) [2023] AATA 4454 (20 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Wame Snice
CASE NUMBER:  2312064
HOME AFFAIRS REFERENCE(S):          BCC2023/1753446
MEMBER:Justin Meyer
DATE:20 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 20 October 2023 at 4.11pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – prescribed fee – non-payment of fee – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 21 July 2023, to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 11 August 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 applicant made this submission:
On August 11, 2023, I applied for a review for Student VISA refusal. During the application process I did not pay the application fee. I only became aware of the application fee upon receiving an email from the Administrative Appeals Tribunal on August 28, 2023. I went back to the application and noticed that I ticked a box stating I needed protection. That is the only unfortunate mistake on the application. I am of the opinion that the application is still valid even without the application fee. All necessary documentation has been uploaded, it is therefore my plea that the application be considered valid.
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.
Justin Meyer
Member

The Administrative Appeals Tribunal (AAT) considered the matter of Snice (Migration). The applicant sought review of a decision concerning a Student (Temporary) (Class TU) visa, subclass 500. The central dispute revolved around the payment of the prescribed fee for the visa application.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review, given that the prescribed fee had not been paid. The Tribunal was required to determine if the non-payment of the fee rendered the application invalid and consequently divested the Tribunal of its authority to conduct a review.

The Tribunal reasoned that the payment of the prescribed fee is a fundamental prerequisite for a valid application for review. In the absence of payment, and without any determination or request for a reduction of the fee, the application was deemed invalid. Consequently, the Tribunal concluded that it lacked jurisdiction to proceed with the review of the visa decision. The Tribunal therefore made no orders in relation to the merits of the visa application itself, as the jurisdictional hurdle could not be overcome.

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