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0903535 [2009] MRTA  1316  (16 July 2009)

Last Updated: 23 July 2009

0903535  [2009] MRTA 1316  (16 July 2009)


DECISION RECORD

REVIEW APPLICANT: Mrs Rashmi Dandona

VISA APPLICANT: Mr Bharat Panjani

MRT CASE NUMBER: 0903535

DIAC REFERENCE(S): VR372/35

TRIBUNAL MEMBER: Di Hubble

DATE: 16 July 2009

PLACE OF DECISION: Melbourne

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


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant the visa applicant a Short Stay (Visitor) (Class TR) visa under s.65 of the Migration Act 1958 (the Act).
  2. The visa applicant applied to the Department of Immigration and Citizenship (the Department) for a Short Stay (Visitor) (Class TR) visa on 21 April 2009. The delegate decided to refuse to grant the visa on 5 May 2009 and notified the visa applicant of the decision and his review rights by letter dated 5 May 2009 that was despatched by email on 5 May 2009.
  3. The review applicant applied to the Tribunal on 29 May 2009 for review of the delegate’s decision. Included in the application was a request for a waiver of the review fee of $1400.
  4. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 29 May 2009 is an application properly made under s.347 of the Act for review of the delegate’s decision.
  5. On 9 June 2009 an authorised Tribunal officer refused the review applicant’s fee waiver request and wrote to the review applicant on 9 June 2009 informing her of that decision and inviting her to pay the applicable review fee within 14 days of receiving the Tribunal’s letter. This made the last date for payment of the fee 2 July 2009. The review applicant’s authorised recipient telephoned a Tribunal officer on 11 June 2009 about the fee waiver request and was informed of the contents of the Tribunal’s letter of 9 June 2009. The review applicant did not subsequently pay the review fee or respond to the Tribunal’s letter.

RELEVANT LAW

  1. The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Short Stay (Visitor) (Class TR) visa under s.65 of the Act is covered by s.338(7).
  2. Section 347 sets out the requirements for an application for review. Section 347(1)(a) requires an application to be made in the approved form and s.347(1)(b) requires an application to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and start when the visa applicant is notified of the decision.
  3. Section 347(1)(c) requires an application to be accompanied by the prescribed fee (if any). The prescribed application fee (where payable) is $1400: r.4.13(1) of the Regulations, and must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99.
  4. However, r.4.13(4) provides that the Registrar, or a Deputy Registrar, or another officer of the Tribunal authorised by the Registrar, may determine that the fee on an application for review should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant. Where the review applicant has asked the Tribunal to waive the prescribed application fee pursuant to r.4.13(4), and has made that request within the prescribed period, the application for review is valid if the prescribed application fee is either waived or paid within a reasonable time after the fee waiver request has been refused: Braganza v MIMA [2001] FCA 318; (2001) 109 FCR 364. As a matter of policy, the Tribunal generally regards 14 days as a reasonable period but considers requests for additional time if the review applicant does not consider 14 days to be reasonable in the particular circumstances.

FINDINGS AND REASONS

  1. The Tribunal has before it the Department’s file relating to the visa applicant.
  2. The Tribunal finds that the review applicant is seeking review of an MRT-reviewable decision covered by s.338(7) and that the prescribed fee for this application is $1400.
  3. The review applicant asked the Tribunal to waive the prescribed application fee on 29 May 2009, being before the prescribed period expired. An authorised Tribunal officer decided on 9 June 2009 to refuse the request for fee waiver because the officer was not satisfied that the payment of the fee would cause the review applicant, or is likely to cause her, severe financial hardship. The Tribunal wrote to the review applicant on 9 June 2009 advising her of this decision and requesting that the prescribed application fee be paid within 14 days of receiving the Tribunal’s letter. This made the last date for payment of the fee 2 July 2009. The applicant was informed that if the fee was not paid, the Tribunal may decide that the review application was invalid.
  4. The review applicant’s authorised recipient telephoned the Tribunal on 11 June 2009 in relation to the fee waiver application. A Tribunal Officer informed him that on 9 June 2009 the Tribunal sent a letter to the review applicant informing her that her fee waiver request had been refused and that she would need to pay the review fee by 2 July 2009. The review applicant did not contact the Tribunal subsequently, and no payment has been received.
  5. The Tribunal finds that the applicant has been given a reasonable period to pay the prescribed application fee since being notified of the decision to refuse to waive it. As the prescribed application fee has not been paid, or waived under r.4.13(4), the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

DECISION

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

Di Hubble
Member


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