Zhang (Migration)

[2020] AATA 1355

Zhang (Migration) [2020] AATA 1355 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zihui Zhang

CASE NUMBER:  1909263

DIBP REFERENCE(S):  BCC2018/4671744

MEMBER:Tim Connellan

DATE:11 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 February 2020 at 3:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicable fee not paid – partial fee payment – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347
Migration Regulations 1994, rr 4.10, 4.13

CASES

BMY18 v Minister for Home Affairs [2019] FCAFC 189
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 4 April 2019, 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 9 April 2019. The application was accompanied by the payment of $920. The prescribed fee was $1,764. No application for fee relief was received.

3. 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.

4. 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 26 April 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.

5. On 2 December 2019 the Tribunal wrote to the applicant via email inviting her to comment on the validity of the application. The letter also noted the recent court judgement in the case BMY18 v Minister for Home Affairs may have provided the opportunity to still make payment of the Tribunal fee however it it would require her to pay the outstanding balance of the fee by 16 December 2019.

6. No response 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.

   Tim Connellan
   Member