Simmonds (Migration) [2018] AATA 861 (21 March 2018)

Last Updated: 12 April 2018

Simmonds (Migration) [2018] AATA 861 (21 March 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Peta John Taimana Simmonds

CASE NUMBER: 1803496

DIBP REFERENCE(S): BCC2017/3954455

MEMBER: K. Chapman

DATE: 21 March 2018

PLACE OF DECISION: Brisbane

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

Statement made on 21 March 2018 at 1:21pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Prescribed fee not paid in required timeframe

LEGISLATION
Migration Act 1958, s 347(1)
Migration Regulations 1994, rr 2.55, 4.10, 4.13

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 15 January 2018 to cancel the applicant’s Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (‘the Act’). The review application was lodged with the Tribunal on 9 February 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (‘the Regulations’) an application for review of this decision had to be made within 7 working days after the applicant was notified of the decision in accordance with the statutory requirements. Additionally, pursuant to s.347(1) of the Act and r.4.13 of the Regulations, the review application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee, unless a determination has been made under r.4.13(4) that such fee should be reduced by 50% on the basis of financial hardship.
3. The material before the Tribunal indicates that the applicant was notified of the visa cancellation decision by letter dated 15 January 2018 despatched by prepaid post to him at the Brisbane Correctional Centre, where he was being held in custody at the time. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 January 2018: r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 5 February 2018. No application for review, payment of the prescribed fee, or request for a fee reduction, was received by the Tribunal within the prescribed period.
4. The application for review indicates that Ms Ashleigh Morris, the partner of the applicant, is his representative. Ms Morris first made contact with the Tribunal Registry on 9 February 2018, making several telephone calls and submitting various documentation (including emails, social media records, statements and a medical certificate) since that date. In summary, the aforementioned information derived from the telephone calls and documentation contend, on behalf of the applicant, that he had difficulty in lodging the review application through Ms Morris due to his incarceration and their unfamiliarity with the review process. Such information has been duly considered by the Tribunal.
5. In order to afford the applicant natural justice, by correspondence dated 5 March 2018, the Tribunal Registry wrote to him, through Ms Morris, inviting his comment by 19 March 2018 on the validity of the application for review. Following receipt of this correspondence, Ms Morris made further telephone contact with the Tribunal Registry seeking to clarify how to respond. On 18 March 2018, Ms Morris submitted documentary material including a letter from her, letter from Legal Aid and a ‘Request for Fee Reduction’ form. Ms Morris made subsequent telephone contact with the Tribunal Registry and submitted another letter from her (an expanded version of her earlier letter). In summary, the aforementioned information maintains the contention that the applicant had difficulty lodging the application for review due to his incarceration, and indicates that he is seeking to pay the reduced fee amount of $865.50 to the Tribunal Registry (including Ms Morris taking steps on the day of this decision to make such payment). All of the aforementioned information has been duly considered by the Tribunal.
6. The Tribunal has carefully considered the available evidence in relation to this matter. The material before the Tribunal indicates that the applicant was properly notified of the visa cancellation decision in accordance with the statutory requirements. The applicant did not lodge an application for review, or a request for fee reduction, or pay any fee to the Tribunal, within the prescribed period (which ended on 5 February 2018). The first contact with the Tribunal by Ms Morris, on behalf of the applicant, occurred on 9 February 2018 after the end of the prescribed period.
7. As the application for review was not received by the Tribunal until 9 February 2018 it follows that it was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter. Additionally, no fee payment was received by the Tribunal within the prescribed period and this is a further reason why it has no jurisdiction in this matter. The Tribunal finds accordingly.

DECISION

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

K. Chapman
Member