Thapa (Migration)

Thapa (Migration) [2024] AATA 3989 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandesh Thapa
CASE NUMBER:  2426121
HOME AFFAIRS REFERENCE(S):          BCC2024/2966992
MEMBER:Penelope Hunter
DATE:1 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 October 2024 at 10:58am
CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – prescribed fee has not been paid – a valid request for fee reduction has not been made – 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

The applicant lodged an application for review of a decision of a delegate of the Minister for Home Affairs, dated 17 July 2024, to cancel the applicant’s Temporary Activity (Class GG) visa under the Migration Act 1958 (the Act).
The review application form was lodged with the Tribunal on 1 August 2024. 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 1 August 2024. 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.
Before the prescribed period expired, the applicant made a request to the Tribunal to reduce the prescribed application fee. However, the request form was incomplete and not accompanied by partial payment of the prescribed fee as directed in the application form.
On 8 August 2024, the Tribunal wrote to the applicant acknowledging the fee reduction request and advising that the application for of 50% was supposed to accompany the application for it to be valid. The applicant was further advised that the prescribed period to provide payment had expired and he was invited to provide comment in writing by 2 September 2024 as to whether a valid application had bee made. The applicant did not respond.
The prescribed fee has not been paid at the time of lodgement of the application and a valid request for fee reduction has not been made. 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.
Penelope Hunter
Member

The Administrative Appeals Tribunal (AAT) considered an application for review by Mr Thapa concerning a Temporary Activity (Class GG) visa. The core of the dispute revolved around the payment of the prescribed application fee and whether a valid request for a fee reduction had been made.

The Tribunal was required to determine whether it had jurisdiction to hear Mr Thapa's application for review. This depended on whether the application for review itself was valid, which in turn was contingent upon the applicant having complied with the requirements regarding the payment of the prescribed fee or having made a valid request for a fee reduction at the time of lodging the application.

The Tribunal reasoned that as the prescribed fee had not been paid at the time of lodgement, and no valid request for a fee reduction had been made, the application for review was not a valid application. Consequently, the Tribunal concluded that it lacked jurisdiction to proceed with the matter. The Tribunal therefore made no orders in relation to the merits of the visa application itself.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established