Yousuf (Migration)

[2018] AATA 2398

Yousuf (Migration) [2018] AATA 2398 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Usman Yousuf

VISA APPLICANT:  Ms Sana Yousuf

CASE NUMBER:  1812458

DIBP REFERENCE(S):  17/02/06584

MEMBER:Margie Bourke

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2018 at 12:24pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Applicable fee not paid – Correct application form not used

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 28 February 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 26 March 2018. 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. The tribunal has considered that the Department’s decision notification did not provide the tribunal’s correct address in Victoria, or its email address or telephone contact details. The review applicant send a collection of documents to the tribunal, including the Department decision record dated 28 February 2018, as an online application, and attached an email submission dated 27 March 2018.  In the submission the applicant stated that the application fee was a little too much, and he was not in a position to pay the application fee. The applicant referred to the correct application fee in the submission.

4. A tribunal officer responded to the applicant on 29 March 2018 by email, and advised that the applicant had not yet lodged the application for review on the correct application form, provided advice on the correct forms.  In the email the tribunal officer also provided advice on the right to apply for reduction of the application fee if payment would cause severe financial hardship, and the advice in relation to the form and method for making this application.   A tribunal officer contacted the applicant by telephone on 2 May 2018, and the applicant confirmed he had received the tribunal email dated 29 March 2018.  Later on 2 May 2018 the applicant advised he intended to lodge the correct review application form and the application for fee reduction form with the tribunal.

5. I am satisfied that the applicant lodged some information with the tribunal online to initiate his application for review of the Department decision.  I am satisfied that the applicant was subsequently provided with sufficient advice as to the correct form, and where to lodge the application form by a tribunal officer.  I am satisfied that any omission in the Department notification form was overcome by the tribunal advice, and by the applicant’s knowledge of the online address of the tribunal. Based on the information submitted to the tribunal online and by email form the applicant, I am satisfied the applicant was aware of the correct online and email address to lodge the application for review, and to make the payment for the application for review.

6. 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 9 May 2018. 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.

7. By letter dated 11 May 2018 sent to the applicant’s email address, the tribunal invited the applicant to comment on whether a valid application had been made as the application fee had not been paid.  The tribunal did not receive a response to its letter dated 11 May 2018.  The tribunal did not receive payment of the fee, or application for reduction of the prescribed fee from the applicant.

8. 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

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

   Margie Bourke
   Member