Yohannes (Migration)

[2020] AATA 5950

Yohannes (Migration) [2020] AATA 5950 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yonnes Yohannes

CASE NUMBER:  1928231

DIBP REFERENCE(S):  BCC2019/3345865

MEMBER:Linda Holub

DATE:27 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2020 at 8:25am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – insufficient payment of application fee – fee reduction – payment fifty cents short of required fee – no notification of insufficient payment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 347(1)(b)
Migration Regulations 1999 (Cth), 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.    The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 23 September 2019, 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 7 October 2019. 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 8 October 2019. 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.    The application was initially identified as potentially being out of time.  However, on further interrogation of the available information, it became apparent that although the Department’s notification email was sent to the Marngoneet Correctional Centre on 23 September 2019, the documents were not handed to the applicant until 10.40am on 26 September 2019.  Therefore, it was taken the applicant was validly notified on 16 September 2019 rather than 23 September 2019 and the application was assessed as being valid.

5.    The applicant lodged a fee reduction request, however at the time of application the applicant’s payment was fifty cents short of the half fee requirement

6.    The Tribunal wrote to the applicant on 15 January 2020 advising that it appeared that his application was not a valid application due to insufficient payment of the application fee.  He was invited to make any comments by 29 January 2020. 

7.    On the same day the Tribunal received an email from the applicant’s migration representative stating they have been waiting months for a response from the Tribunal with no contact having been made to notify the applicant that the fee paid by their lawyer was short by fifty cents and was therefore insufficient. 

1. In order to have lodged a valid application, the applicant must have paid half the application fee and lodged a fee reduction before the end of the prescribed period. Even though their application was lodged within time, it was not accompanied by the half fee.  The Tribunal accepts that the applicant may have waited months for a response from the Tribunal but this does not explain why the full amount of the half fee was not paid. 

2. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

DECISION

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

Linda Holub
Member