Tuhakaraina (Migration)

[2017] AATA 2821

Tuhakaraina (Migration) [2017] AATA 2821 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haimana Tuhakaraina

CASE NUMBER:  1728033

DIBP REFERENCE(S):  BCC2017/3551635 

MEMBER:Nicole Burns

DATE:19 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2017 at 9:58am

CATCHWORDS
Migration – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – No application fee paid

LEGISLATION
Migration Act 1958, s 347(1)
Migration Regulation 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. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 31 October 2017, to cancel the applicant’s Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 10 November 2017. 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 to 50 per cent of the prescribed fee 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 10 November 2017.

4. An application for review will not be valid for the purposes of s.347(1)(c) in circumstances where the applicant lodges a fee reduction request with the review application, but does not pay 50 per cent of the prescribed fee prior to the end of the prescribed period within which the review application must be made.  In the present case, an application for the Tribunal to reduce the prescribed fee was lodged with the review application on 10 November 2017. No fee payment accompanied the review application or fee reduction request.

5. By letter dated 15 November 2017, an officer from the Tribunal Registry wrote to the applicant inviting his comment by 8 December 2017 on the validity of the application for review, in light of the lack of payment of an application fee.  This letter was sent to Ravenhall Correctional Centre.  However on 29 November 2017 the applicant telephoned the Tribunal and indicated that he had not received the Tribunal’s letter and also that he had moved to the Maribyrnong immigration detention centre (MIDC).  The Tribunal then sent another letter inviting his comment on the validity of the review application to MIDC dated 29 November 2017 and inviting his comment by 13 December 2017.  On 12 December 2017 the applicant’s mother (and authorised recipient) telephoned the Tribunal and asked if she could now pay her son’s fee.  However 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.

6. No application fee has ever been received by the Tribunal from the applicant. Accordingly, following careful consideration, the Tribunal finds that as the applicant did not pay 50 per cent of the prescribed fee prior to the end of the prescribed period, 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.

   Nicole Burns
   Member