TAHMINA (Migration)

[2018] AATA 209

TAHMINA (Migration) [2018] AATA 209 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nishath Tahmina
Mr Mohammed Salar Khan
Mr Mohammed Faaz Khan

CASE NUMBER:  1732163

DIBP REFERENCE(S):  BCC2016/2606162

MEMBER:Katie Malyon

DATE:31 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2018 at 10:47 am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Applicant’s withdrew authorisation of their representative – Invalid application – Incomplete cheque received by the Tribunal – Application out of time

LEGISLATION
Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, rr 4.10, 4.13

CASES
Kirk v MIMA (1998) 87 FCR 99
Braganza v MIMA (2001) 109 FCR 364

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 Immigration, dated 28 November 2017, to refuse to grant Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 19 December 2017.  The issue in the present case is whether the Tribunal has jurisdiction to review the application.  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. The Tribunal formed a preliminary view that the application for review lodged by the applicants’ representative was not a valid application as the applicants did not pay the application fee before the expiry of the time limit for lodging the application being 19 December 2017. 

4. On 12 January 2018, Ms Nishath Tahmina (the first named applicant) informed the Tribunal that she had withdrawn the authorisation of her representative to act on behalf of the applicants.  On 15 January 2018, Ms Tahmina responded to the Tribunal’s invitation to comment on the validity of the application for review.  She states that her representative lodged the application within the time provided and that she paid him the application fee on time.  Ms Tahmina also states she is not sure why the payment is not clear (sic) on time.

5. The Tribunal has considered Ms Tahmina’s response: however, it does not have any discretion in this matter.

   Was the review application received by the Tribunal in time?

6. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) application for review of a delegate’s decision to refusal to grant a Class UC visa must be made within 21 days after an applicant is notified of the decision in accordance with the statutory requirements. 

7. Material before the Tribunal indicates that the applicants were notified in writing of the decision to refuse their Class UC visa application.  The notice was dispatched by email sent on 28 November 2017 to their then representative.  The Tribunal is satisfied that the applicants were notified by the delegate of the decision in accordance with the statutory requirements. 

8. In accordance with s.494C of the Act, the Tribunal finds that the applicants are taken to have been notified of the decision on 28 November 2017. Therefore, the prescribed period within which the review application could be made ended 21 days later on 19 December 2017. As noted above, although the application for review was received by the Tribunal on 19 December 2016 it was accompanied by an incomplete cheque.

   Has the correct application fee being paid?

9. Section 347(1)(c) of the Act requires that an application for review must be accompanied by the prescribed fee, unless a determination has been made under r.4.13(4) of the Regulations that the fee should be reduced on the basis of financial hardship. The fee must be paid within the prescribed period: Kirk v MIMA[1] or, if a determination has been made under r.4.13(4) of the Regulations, within a reasonable period after that determination: Braganza v MIMA.[2]

   [1] (1998) 87 FCR 99

   [2] (2001) 109 FCR 364

10. The applicants’ application for review made on 19 December 2017 was accompanied by a cheque for $1,731 dated 19 December 2017.  However, the cheque was incomplete because there was no written sum of money stated on the cheque and, as a result, the cheque was not accepted by the Tribunal’s bank.  This came to the attention of the Tribunal on 20 December 2017.  The Tribunal telephoned the applicants’ representative on 20 December 2017 and the representative indicated that the member of staff who had written and handed over the cheque to the Tribunal would return to the Tribunal and complete required information.  However, no one presented on 20 December 2017 whereupon the Tribunal again called the representative’s office on 21 December 2017.  The Tribunal received payment of the fee on 21 December 2017. 

11. In the circumstances, the prescribed fee has not been paid within the prescribed period that ended on 19 December 2017 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 the matter.  The Tribunal has no discretion to waive the legislative requirements.  

    DECISION

12. The Tribunal does not have jurisdiction in this matter.

    Katie Malyon

    
    Member