Vongxay (Migration)

[2022] AATA 2799

Vongxay (Migration) [2022] AATA 2799 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pathoumvanh Vongxay

CASE NUMBER:  2203435

HOME AFFAIRS REFERENCE(S):          BCC2020/420715 PNJ

MEMBER:Penelope Hunter

DATE:19 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2022 at 1:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – 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 of a delegate of the Minister for Home Affairs, dated 7 March 2022, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 10 March 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. After the review application was lodged the Tribunal contacted the nominated recipient on 11 March 2022. It was identified that the application had been made to the incorrect division of the Tribunal, the General Division, when the Migration Division was appropriate for the review of a decision to refuse to grant a Visitor (Class FA) visa. The review applicant was further advised of the relevant filing fee, $3,000, was required to be paid. A copy of the relevant application form was provided together with advice that time limits would apply.

5. On 11 March 2022, the Tribunal received an email from the nominated recipient to the effect that they could not afford the filing fee and wishing to withdraw the application.

6. On 9 June 2022, wrote to the review applicant inviting submission as to whether a valid review application had been made, noting the full application fee had not been paid. The review applicant was invited to provide a response by 23 June 2022. No further communication has been received.

7. 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.

   Penelope Hunter
   Member