Torabimoghadam (Migration)

[2017] AATA 2619

Torabimoghadam (Migration) [2017] AATA 2619 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Enayat Torabimoghadam

CASE NUMBER:  1719351

DIBP REFERENCE(S):  BCC2017/2892 BCC2017/2892881

MEMBER:Linda Symons

DATE:27 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2017 at 12:43pm

CATCHWORDS
Migration – Visitor (Class FA) visa – No standing – No right to apply for review – Incorrect legislation applied – Prescribed fee not paid

LEGISLATION
Migration Act 1958 ss 65, 338(7), 347, 347(1), 347(1)(b) , 347(2) , 347(2)(c)
Migration Regulations 1994 rr 4.10, 4.13(4)

CASES

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 21 August 2017, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 24 August 2017. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in s.347(2)(c) of the Act which states that the relative must be an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen and particulars of this relative must be included in the visa application.

4. In this case, the application for review was made by the visa applicant. He has no standing to make an application for review in relation to his own visa application. The review applicant needed to be a relative referred to in s.347(2)(c) of the Act. On 25 August 2017, an officer of the Tribunal wrote to the review applicant’s authorised recipient informing her that the application for review must be made by the person who has the right to apply for review. An amended application for review was not lodged with the Tribunal. On 31 October 2017, an officer of the Tribunal wrote to the review/visa applicant inviting him to comment on the validity of his application for review in writing by 14 November 2017. This letter was sent to his authorised recipient by email on 31 October 2017. The email was not returned undelivered. The Tribunal did not receive a response to this letter.

5. As the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by the relative referred to in in s.347(2)(c) of the Act. In the present case, the review application was made by the visa applicant. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction.

6. Further, 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 visa applicant is notified of the decision. In the present case, the prescribed period ended on 30 October 2017. 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.

7. In this case, the application for review was lodged on 25 August 2017. It was not accompanied by the prescribed fee nor was an application made for the reduction of the fee on the basis of financial hardship. On 25 August 2017, an officer of the Tribunal wrote to the review applicant’s authorised recipient informing her that the prescribed fee of $1,731.00 needed to be paid or alternatively a request for a fee reduction together with half the prescribed fee, being $865.50, needed to be submitted within the prescribed time. She was provided with the relevant form and reminded that strict time limits applied.

8. The prescribed fee was not paid by 30 October 2017 nor did the Tribunal receive a request for a fee reduction together with payment of half the prescribed fee by that date. On 31 October 2017, an officer of the Tribunal wrote to the review/visa applicant inviting him to comment on the validity of his application for review in writing by 14 November 2017. This letter was sent to his authorised recipient by email on 31 October 2017. The email was not returned undelivered. The Tribunal did not receive a response to this letter.

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.

    Linda Symons
    Member