Tanaphanuwit (Migration)

[2018] AATA 619

Tanaphanuwit (Migration) [2018] AATA 619 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pudpitchaya Tanaphanuwit

CASE NUMBER:  1802271

DIBP REFERENCE(S):  BCC2018/79499

MEMBER:Ian Berry

DATE:15 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 15 March 2018 at 3:41pm

CATCHWORDS

Migration – Visitor (Class FA) – Subclass 600 –Fees outstanding – Applicant’s parents could not afford the lodgement fee – Invalid application

LEGISLATION

Migration Act 1958, ss 65, 347
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 24 January 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 30 January 2018. 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 r.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 r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 14 February 2018. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. On 2 February 2018, the Administrative Appeals Tribunal (“AAT”) wrote to the applicant’s father acknowledging the receipt of the application for review.  On 5 February 2018, the AAT wrote to the applicant’s father advising that to the application fee was still outstanding.  Advice was given that the payment must be made by 14 February 2018.  Advice was also given by the AAT that a reduction of the fee can be achieved by applying for a reduction but it must be an application received by the AAT on or before 14 Fabry 2018 otherwise the application will be considered invalid.

5. The applicant’s father, by email dated 5 February 2018 advised that they would like for the application for review to be cancelled.  Advise was received that the applicant’s parents could not afford the lodgement fee.

6. The AAT again wrote to the applicant’s father confirming that if the fee is not paid by 14 February 2018 the application will be considered to be invalid.

7. By letter dated 15 February 2018, the a AAT advised the applicant’s father that it considered the applicant’s application to be invalid.  An invitation was given for the applicant’s parents to make any comment relevant to the invalidity of the application.  The invitation was open until 1 March 2018.

8. Correspondence between the AAT and the applicant’s parents has been neither sent nor received since correspondence sent on 15 February 2018.  

9. 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

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

    Ian Berry
    Member