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austlii:cth/MRTA/2006/242
defendant. The Tribunal does not have jurisdiction in this matter. The application for review is ineligible because the review applicant's request for a fee waiver was refused and the prescribed application...
The Migration Review Tribunal decided it could not hear a visa appeal because the person applying for review (the sponsor) had not paid the required application fee. The sponsor had asked for the fee to be waived due to financial hardship, but the Tribunal refused this request because it was not satisfied that paying the fee would cause severe financial hardship. The Tribunal gave the sponsor until 21 February 2006 to pay the fee, but the fee was never paid. Because the fee is a legal requirement for the Tribunal to have power to hear the case, the Tribunal concluded it had no jurisdiction to review the visa refusal. The Tribunal also noted there may have been a problem with how the original visa refusal was notified, but this did not change the outcome.
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N06/00055 [2006] MRTA 242 (4 April 2006)
CATCHWORDS: Application ineligible for review - application fee not paid - application for fee waiver refused - section 347(1)(c) - regulation 4.13
DECISION: The Tribunal does not have jurisdiction in this matter.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Partner (Provisional) (Class UF) visa to Ms Chawkat Choucair (the visa applicant), a national of Lebanon, born on 19 June 1987, who applied for a Partner (Provisional) (Class UF) visa on 6 July 2005. The delegate's decision to refuse to grant the visas was made in Beirut on 24 November 2005.
Mr Ali Choucair (the review applicant), the sponsor of the visa applicant, lodged an application for review to the Tribunal on 4 January 2006.
The Tribunal must decide whether the review applicant's (sponsor) application is eligible for review.
Section 347 of the Migration Act 1958 (the Act) sets out the requirements for making an eligible application for review, including the requirements to pay the application fee and make the application within the time allowed. Subregulation 4.13(4) of the Migration Regulations 1994 (the Regulations) allows an authorised Tribunal officer to waive the prescribed application fee if the officer is satisfied that payment of the fee has caused the review applicant, or is likely to cause the review applicant, severe financial hardship.
The review applicant requested the Tribunal to waive the prescribed application fee when he lodged his application for review on 4 January 2006. An authorised Tribunal officer decided on 7 February 2006 to refuse the request for fee waiver because the officer was not satisfied that the payment of the fee has caused the review applicant, or is likely to cause him, severe financial hardship. The Tribunal wrote to the review applicant on 7 February 2006 advising him of this decision and asking that he pay the prescribed application fee within a reasonable time, which the Tribunal advised was 21 February 2006. The Tribunal invited the review applicant to contact the Tribunal if he considered this period not to be reasonable in his particular circumstances. The prescribed application fee was not paid by 21 February 2006 and has not been paid at the time of this decision.
The Tribunal notes that the visa applicant nominated an authorised recipient in her visa application form at Part M. Section 494D of the Act therefore obliged the Minister's delegate to give to the authorised recipient instead of the visa applicant notice of the decision refusing to grant her a visa pursuant to s.66. The notification of the decision refusing the visa applicant's visa application appears to have been sent to the visa applicant only. As such there appears to have been a breach of s.494D and a failure to notify the applicant of the decision in accordance with the Act. Notwithstanding this, the Tribunal has considered the eligibility of the application for review which is presently before it. As the application for review was not accompanied by the prescribed fee required by s.347(1)(c), payment of the prescribed fee has not been waived, and no payment of the prescribed fee has been made within a reasonable period after the review applicant was notified of the decision not to waive the fee, the Tribunal considers that it does not have before it a valid application for review of the delegate's decision.
The review applicant has not paid the prescribed application fee since the Tribunal notified the review applicant of the decision to refuse the request for fee waiver.
The application for review is ineligible because the review applicant's request for a fee waiver was refused and the prescribed application fee was not paid to the Tribunal within the time allowed.
The Tribunal does not have jurisdiction in this matter. The application for review is ineligible because the review applicant's request for a fee waiver was refused and the prescribed application fee was not paid to the Tribunal within the time allowed.