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0909027 [2010] MRTA  792  (22 March 2010)

Last Updated: 13 April 2010

0909027  [2010] MRTA 792  (22 March 2010)


DECISION RECORD

APPLICANTS: Mr Jigneshkumar Bharatbhai Patel
Ruchi Jigneshkumar Patel

MRT CASE NUMBER: 0909027

DIAC REFERENCE(S): CLF2009/54069

TRIBUNAL MEMBER: Don Smyth

DATE: 22 March 2010

PLACE OF DECISION: Brisbane

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 to cancel the primary applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).
  2. The Department of Immigration and Citizenship (the Department) granted the primary applicant (Mr Jigneshkumar Bharatbhai Patel) a Subclass 572 Vocational Education and Training Sector visa on 12 December 2007. The Department granted the secondary applicant (Ruchi Jigneshkumar Patel) a Subclass 572 Vocational Education and Training Sector visa as a member of the primary applicant's family unit on 12 December 2007.
  3. The primary applicant was notified on 28 April 2009 that a delegate of the Minister was considering cancelling his Subclass 572 Vocational Education and Training Sector visa and the decision to cancel the visa was made on 5 November 2009. The primary applicant was notified of the decision and his review rights by letter dated 5 November 2009 and delivered by hand on 5 November 2009.
  4. The Department’s records indicate that the secondary applicant’s visa was automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the primary applicant’s visa. The Tribunal is not able to review the cancellation of the visas of family members of the primary applicant. There is no provision for merits review of a consequential visa cancellation under s.140(1): see Rani v MIMA [1997] FCA 1493; (1997) 80 FCR 379.
  5. The applicants applied to the Tribunal on 13 November 2009. The applicants indicated that they had attached to the application a copy of the decision that they wanted reviewed. The decision to cancel the primary applicant’s Subclass 572 visa was attached.
  6. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 13 November 2009 is an application properly made under s.347 of the Act for review of the delegate’s decision.

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.
  2. These include decisions to refuse or to cancel visas of various kinds but they do not include cancellation of a visa that operates automatically by operation of s.140(1) or s.140(3).
  3. A decision to cancel a Subclass 572 Vocational Education and Training Sector visa under s.116 of the Act is covered by s.338(3) if the non-citizen whose visa is cancelled is in Australia at the time of cancellation. Subsection 347(2) sets out who has the right to apply for review of an MRT-reviewable decision. In the case of a decision covered by s.338(3), an application for review may only be made by the non-citizen who is the subject of the decision.
  4. Section 347 sets out the requirements for an application for review. Paragraph 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 applicant is notified of the decision.
  5. Paragraph 347(1)(c) requires an application to be accompanied by the prescribed fee (if any). The prescribed application fee (where payable) is $1 400: r.4.13(1) of the Regulations, and must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99.
  6. 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 applicant. Where the 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 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 primary applicant.
  2. The Tribunal finds that the primary applicant is seeking review of the decision to cancel his Subclass 572 visa attached to the application for review. As no other decision is referred to in the application for review, the Tribunal further finds that the secondary applicant is also seeking review of the decision attached to the review application.
  3. The Tribunal finds that the primary applicant is seeking review of an MRT-reviewable decision covered by s.338(3) and that the prescribed fee for this application is $1 400.
  4. The primary applicant asked the Tribunal to waive the prescribed application fee on 16 November 2009, being before the prescribed period expired.
  5. On 26 November 2009, an authorised Tribunal officer wrote to the primary applicant, requesting further information in support of his fee waiver application. The primary applicant was given until 21 December 2009 to respond. On 16 December 2009 the primary applicant provided a submission in response to that letter.
  6. On 18 December 2009, an authorised Tribunal officer decided to refuse the request for fee waiver because the officer was not satisfied that the payment of the fee would cause the primary applicant, or is likely to cause him, severe financial hardship. The Tribunal wrote to the primary applicant on 18 December 2009 advising him 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 14 January 2010. The primary applicant was informed that, if the fee was not paid, the Tribunal may decide that the review application was invalid.
  7. The primary applicant did not contact the Tribunal subsequently, and no payment has been received.
  8. The Tribunal finds that the primary applicant was 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.
  9. In relation to the secondary applicant, the Tribunal wrote to her on 23 February 2010 inviting submissions on the issue of jurisdiction. The Tribunal did not receive a response to that letter. The evidence before the Tribunal indicates, and the Tribunal finds, that the delegate’s decision in question relates only to the cancellation of the visa for the primary applicant, Mr Jigneshkumar Patel, and not to the secondary applicant. The Tribunal finds that the secondary applicant is not the non-citizen who is the subject of the relevant decision. As such, she is not permitted by s.347(2) to apply for review of the decision. The Tribunal finds that the application for review in relation to the secondary applicant is not an application properly made under s.347 for review of an MRT-reviewable decision as required by s.348. Therefore, the Tribunal does not have jurisdiction in this aspect of the matter.
  10. The Tribunal has found that the application by the secondary applicant relates to the decision attached to the review application, namely the decision to cancel the primary applicant’s Subclass 572 visa. However, even if the secondary applicant were seeking review of the cancellation of her own Subclass 572 visa, the Tribunal’s conclusion in relation to jurisdiction would be the same. Consequential cancellation of any visa under s.140(1) is not an MRT-reviewable decision. The cancellation of the secondary applicant's visa occurred by operation of the law and did not involve any reviewable decision. The Tribunal finds that an application in relation to the consequential cancellation of the secondary applicant’s Subclass 572 visa would not be an application for review of an MRT-reviewable decision. In circumstances where the Tribunal does not have an application properly made under s.347 for review of an MRT-reviewable decision, as required by s.348, it does not have jurisdiction in this aspect of the matter.

DECISION

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

Don Smyth
Member


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