Zhang (Migration)

[2018] AATA 833

Zhang (Migration) [2018] AATA 833 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Haiyan Zhang

CASE NUMBER:  1805299

DIBP REFERENCE(S):  BCC2018/65691

MEMBER:Wendy Banfield

DATE:26 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2018 at 12:49pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Failed to pay the application fee – Applicant returned to home country

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 27 February 2018, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 28 February 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. 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 20 March 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.

4. On 6 March 2018 the applicant was contacted about her failure to pay the application fee and given the opportunity to comment. On the same day the applicant responded and said she had decided to go back to China and her comments on the validity of the application were no longer important. 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

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

   Wendy Banfield
   Member