TOETA (Migration)

[2022] AATA 4482

TOETA (Migration) [2022] AATA 4482 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Shane Navilla Toeta TOETA

CASE NUMBER:  2210550

HOME AFFAIRS REFERENCE(S):          BCC2022/2178396

MEMBER:Brendan Darcy

DATE:7 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2022 at 2:16pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicable fee not paid – 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 1 July 2022, to refuse to grant a Bridging E (Class WE) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 21 July 2022. 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 . 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. On 5 August 2022, the Tribunal emailed correspondence to the applicant. This correspondence invited the applicant to comment on the validity of the application for review and to forward written submissions to the Tribunal by 18 August 2022.

5. The Tribunal has received an emailed response on 16 August 2022. It included a digital copy of a handwritten statement by the applicant and dated 16 August 2022. It indicates that the applciant has been struggling mentally and physically from stress and has been in vulnerable situation. The applicant claimed to ‘living on the streets’ and not to have the resources available. The applicant further stated that the applciant had not paid a fee for an application for review as the applicant had read it was free. The applicant claimed to have the capacity to pay the fee in four to five weeks coming. The applicant’s letter further stated that he has engaged the National Redress Scheme for people who have experienced institutional child sexual abuse (the Scheme) and cannot be sent back to his country of nationality, the Cook Islands (Kuki ‘Airani).

6. On 16 August 2022, the Tribunal also received a letter from the applcaint’s case manager in the Commonwealth’s Department of Social Service which enclosed copy of the applicant’s application for the Scheme.

7. According to the Tribunal’s case notes, the applcaint contacted the Tribunal about the fee requirements on 15 August 2012 and was asked to email the concerns in writing. 

8. The Tribunal has sympathy for the applicant’s circumstances. It is appreciated that the applicant may have confused the visa application charge for a Bridging visa E which is nil with the application fee for merits review at the Tribunal.[1] It also appreciated that the applciant has been and continues to live with a high number of financial, emotional and phycological stressors.

   [1] >

   However, the last day for the applicant to pay the application fee for review was 22 July 2022. The review applciant did not submit a fee reduction form and failed to make a payment of the correct application fee within the prescribed period.

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.

10. The applicant should be aware that the Tribunal does not have any discretion arising from this invalid application for review.

11. It is nonetheless open to the applicant to reapply for a bridging visa of the same Subclass with the Department after carefully considering the refusal reasons outlined in the delegate’s decision record dated 1 July 2022. Should that application for visa be refused by the Department, the applicant will be better placed to consider seeking a fee reduction within the prescribed timeframe if he seeks to pursue merits review with the Tribunal.

    decision

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

    Brendan Darcy
    Member