Sun (Migration)

[2022] AATA 431

Sun (Migration) [2022] AATA 431 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Long Sun

CASE NUMBER:  2114723

HOME AFFAIRS REFERENCE(S):          BCC2021/279788 PNJ

MEMBER:Sean Baker

DATE:2 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2022 at 5:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicable fee not paid – correct application form not used – 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 5 October 2021, to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 21 October 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 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 26 October 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 reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. In this case the applicant lodged the application without payment of the fee, nor did they pay the fee prior to the ending of the prescribed period nor seek a fee waiver and pay the remainder of the fee within the prescribed period.

5. The Tribunal sent the applicant a letter seeking their view on the potential lack of jurisdiction. The applicant did not respond. The applicant has not engaged with the Tribunal since the lodging of their application form.

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.

   Sean Baker
   Member