Trotter (Migration)

[2024] AATA 663

Trotter (Migration) [2024] AATA 663 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Daniel Trotter

VISA APPLICANT:  Ms Kamonporn Wilai

CASE NUMBER:  2318438

HOME AFFAIRS REFERENCE(S):          BCC2023/5658469

MEMBER:Katie Malyon

DATE:9 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2024 at 4:51 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – application fee had not been paid – no determination has been made that the fee should be reduced – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, Schedule 2

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 made by a delegate of the Minister for Home Affairs on 12 October 2023 to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act) to the visa applicant, Thai national Ms Kamonporn Wilai.

2. A review application form was lodged with the Tribunal on 13 November 2023.  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 (the Regulations), this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) of the Act and reg 4.10 of the Regulations. It also had to be accompanied by the prescribed fee, unless a determination has been made under reg 4.13(4) of the Regulations 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 21 December 2023. 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 16 November 2023, the Tribunal wrote to the review applicant, Mr Daniel Trotter, informing him that, as the application was lodged through the General and Other Division portal instead of the Migration and Refugee Division portal, the required application fee of $3,374 has not been paid.  It noted that, should payment of the full fee cause, or be likely to cause, severe financial hardship, then he may consider requesting a 50% reduction of the application fee to $1,687.  The Tribunal attached copies of the M1 Application for review – Migration form and the M11 Information of request of fee reduction form to its email for completion by Mr Trotter and lodgement with the Tribunal.  It also took the opportunity to remind him that the time limit within which the application fee must be paid, as stated on the notification letter, was the last day of the prescribed period to lodge a valid application.

5. No response has been received in response to the Tribunal’s email of 16 November 2023.  

6. The Tribunal wrote to Mr Trotter again on 4 January 2024.  It sent him a natural justice letter inviting him to comment on the validity of his application for review as no fee had been paid before the expiry of the time limit for lodging the review application on 21 December 2023.  No response has been received in response to the Tribunal’s invitation to comment on the validity of the review application.

7. Following constitution of the matter to the Member on 2 February 2024 and having considered all of the information in the Tribunal’s file, it is evident that 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

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

   Katie Malyon

   
   Member