Thanawong (Migration)

[2020] AATA 1172

Thanawong (Migration) [2020] AATA 1172 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thitikorn Thanawong

CASE NUMBER:  1929522

DIBP REFERENCE(S):  BCC2019/3708931

MEMBER:Mark Bishop

DATE:24 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2020 at 10:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – prescribed application fee – non-payment of fee – no request for fee reduction – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), rr 4.10, 4.13

CASES
BMY18 v Minister Home Affairs [2019] FCAFC 189
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 Immigration, dated 26 September 2019, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 17 October 2019. 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 17 October 2019. 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 16 December 2019 the Tribunal wrote to the applicant as follows:

   ·I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

   ·I am of the view that your application is not a valid application as the Tribunal application fee of $1787.00 has not been paid. It should be noted that following a recent court judgement in the case BMY18 v Minister Home Affairs [2019] FCAFC 189, it appears that you may still be able to make payment of the Tribunal fee.

   ·If you wish to pay or make any comments on whether a valid application has been made, you are invited to do so, in writing, by 30 December 2019.

5. The applicant did not respond to this request to make a comment in writing. The applicant has not paid the prescribed fee.

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.

   Mark Bishop
   Member