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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
- 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).
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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).
- 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.
- 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.
- 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.
- 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
- The
Tribunal has before it the Department’s file relating to the primary
applicant.
- 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.
- 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.
- The
primary applicant asked the Tribunal to waive the prescribed application fee on
16 November 2009, being before the prescribed
period expired.
- 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.
- 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.
- The
primary applicant did not contact the Tribunal subsequently, and no payment has
been received.
- 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.
- 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.
- 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
- The
Tribunal does not have jurisdiction in this matter.
Don Smyth
Member
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792
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