Umarov (Migration)

[2021] AATA 4571

Umarov (Migration) [2021] AATA 4571 (16 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nizomiddin Umarov

VISA APPLICANT:  Mr Abdurakhmon Mukhtorov

CASE NUMBER:  2111039

DIBP REFERENCE(S):  CLF2020/18430

MEMBER:Steven Griffiths

DATE:16 November 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 16 November 2021 at 2:23pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – 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 Immigration, dated 11 August 2021, to refuse to grant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 18 August 2021. 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 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 1 September 2021. 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.

4. Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer wrote to the applicant on 27 September 2021 advising more information was required, with a response to be received by 7 October 2021.

5. The Tribunal notes the applicant responses on 10 October 2021 stating he could not pay the full fee due to his circumstances and sought direction on how to receive a refund of fees paid, with the Tribunal confirming on 11^th October 2021 outlining the details of how to proceed so as to receive a refund of the fees paid to date.

6. The Tribunal notes the applicant was advised on 26 October 2021 that the application was not valid as the full fees had not been paid, while providing the applicant the opportunity to make comment by 9 November 2021, with the applicant confirming by email 26 October 2021 his circumstances.

7. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Steven Griffiths
   Member