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1011305 [2011] MRTA  1433  (22 June 2011)

Last Updated: 30 June 2011

1011305  [2011] MRTA 1433  (22 June 2011)

DECISION RECORD

APPLICANT: Mr Shun Min Wang

MRT CASE NUMBER: 1011305

DIAC REFERENCE(S): CLF2010/158904

TRIBUNAL MEMBER: Richard Derewlany

DATE: 22 June 2011

PLACE OF DECISION: Sydney

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 refuse to grant the applicant a Cultural/Social (Temporary) (Class TE) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied to the Department of Immigration and Citizenship for a Cultural/Social (Temporary) (Class TE) visa on 29 July 2010. The delegate decided to refuse to grant the visa on 26 November 2010 and notified the applicant of the decision and review rights by letter dated 26 November 2010.
3. The applicant applied to the Tribunal on 13 December 2010 for review of the delegate’s decision.
4. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 13 December 2010 is an application properly made under s.347 of the Act for review of the delegate’s decision.

RELEVANT LAW

5. The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision, unless it is a decision in relation to which the Minister has issued a conclusive certificate: 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 Cultural/Social (Temporary) (Class TE) visa under s.65 of the Act is covered by s.338(2).
6. 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 applicant is notified of the decision.
7. Section 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.
8. 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

9. The Tribunal has before it the Department’s file relating to the applicant.
10. The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(2) and that the prescribed fee for this application is $1 400.
11. The applicant asked the Tribunal to waive the prescribed application fee on 13 December 2010, being before the prescribed period expired. An authorised Tribunal officer decided on 10 May 2011 to refuse the request for fee waiver because the officer was not satisfied that the payment of the fee would cause the applicant, or is likely to cause him, severe financial hardship. The Tribunal wrote to the applicant on 10 May 2011 advising him of this decision, and requesting that the prescribed application fee be paid within 14 days of receiving the Tribunal’s letter. As the letter was sent by fax, the applicant is taken to have received it at the end of the day on which it was transmitted. This made the last date for payment of the fee 24 May 2011. The applicant was informed that if the fee was not paid, the Tribunal may decide that the review application was invalid.
12. The applicant or his authorised recipient did not contact the Tribunal subsequently, and no payment has been received.
13. 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

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

Richard Derewlany
Member