1503588 (Migration)

[2015] AATA 3056

1503588 (Migration) [2015] AATA 3056 (7 July 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mrs Stella Marume

VISA APPLICANTS:  Miss Chipo Precious Mavondo

MRT CASE NUMBER:  1503588

DIBP REFERENCE(S):  NOT RECORDED

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 July 2015 at 10:23am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 6 March 2015, to refuse to grant Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act). This decision is MRT-reviewable under s.338(7) of the Act.

2. The visa applicant applied for the visa on 13 February 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The review application was lodged with the Tribunal on 12 March 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

4. Section 347(2) of the Act specifies who has the right to apply for review of an MRT-reviewable decision. In the case of an MRT reviewable decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c).

5. As noted above, and on the basis of documents on the Departmental file, this visa application was made on a Form 1419 in the Tourist stream. In the form the visa applicant lists her sisters, brother and brother-in-law in Australia and indicates that her purpose for coming to Australia is to visit her sister. In the application she refers to the review applicant variously as her sister and her ‘sponsor’. In the review application the review applicant indicated her capacity to apply for review was as the ‘sponsor or nominator’. As noted above, this application was made in the Tourist stream, and as such, there is no sponsor or nominator. However, given the review applicant’s stated status as the visa applicant’s sister, it was initially determined that the Tribunal had jurisdiction to review the matter under s.338(7) and s.347(2)(c).

6. Consequently the review applicant was invited to a hearing on 10 June 2015. At the commencement of the hearing the Tribunal inquired as to the composition and location of her family. The review applicant advised the Tribunal that her parents had six children however none of those she named was the visa applicant. On further inquiry by the Tribunal, she claimed that she had always regarded the visa applicant as her sister and had supported her financially however she acknowledged that she is the child of her father’s brother. She confirmed that, biologically, the visa applicant is her cousin. Following a short adjournment, the Tribunal advised the review applicant that in these circumstances it considered that she did not have standing to bring the review application and asked if she wished to say anything further. The review applicant said she did not wish to  make any further submission.

7. As the decision that is the subject of the review application is an MRT-reviewable decision covered by s.338(7), the application for review could only be made by the relative referred to in that subsection, that is, by a parent, spouse, de facto partner, child, brother or sister that the visa applicant intended to visit and who was included in her visa application. In the present case, notwithstanding the claims made in the visa application, the review applicant is not as a matter of fact the sister of the visa applicant. On the basis of the information and material before the Tribunal, it finds that the application for review has been made by the visa applicant’s cousin. Therefore it is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Mary-Ann Cooper
   Member