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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
- 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).
- 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.
- 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.
- 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.
- 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
- 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).
- 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.
- 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.
- 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
- The
Tribunal has before it the Department’s file relating to the visa
applicant.
- 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.
- 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.
- 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.
- 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
- The
Tribunal does not have jurisdiction in this matter.
Di Hubble
Member
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URL: http://www.austlii.edu.au/au/cases/cth/MRTA/2009/ 1316 .html