1506303 (Migration)

[2015] AATA 3033

1506303 (Migration) [2015] AATA 3033 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sufyan Said

VISA APPLICANT:  Mr Mohammed M F Ahmed

CASE NUMBER:  1506303

DIBP REFERENCE(S):  IRIS36630482001

MEMBER:Rachel Homan

DATE:2 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2015 at 1:06pm

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 21 April 2015, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

3. A decision to refuse to grant a Visitor (Class FA) visa is reviewable under s.338(7) of the Act in circumstances where the visa application was made while the visa applicant was outside Australia (s.338(7)(a) and cl.600.412 of Schedule 2 to the Regulations), if it is a criterion for the grant of the visa that the visa applicant intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant (s.338(7)(b)); and particulars of the relative concerned are included in the application (s.338(7)(c)).

4. The visa applicant in the present case made an application for a Visitor (Class FA) visa in the Tourist stream whilst outside Australia. Subclause 600.221(a) of Schedule 2 to the Regulations states that it is a criterion for a visa in the Tourist stream that the visa applicant intends to visit Australia, or remain in Australia to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant.

5. At Question 27 of the Form 1419 visa application form, the applicant provided particulars of two uncles and two aunts in Australia when asked to identify any relatives in Australia. At Question 29 of the same form, when asked why he wished to visit Australia, the visa applicant stated that he wished to accompany his elderly grandparents to visit his uncle (the review applicant).

6. The review application was lodged with the Tribunal on 8 May 2015 and on 5 June 2015, the Tribunal wrote to the review applicant advising that an officer had formed the preliminary view that the Tribunal lacked jurisdiction to review the decision in question as the review applicant was not a parent, spouse, de facto partner, child or sibling of the visa applicant.

7. The review applicant responded to the Tribunal’s letter by email on 22 June 2015. In his correspondence, the review applicant asked that the decision to refuse to grant the visa be reviewed. The review applicant stated that his nephew, the visa applicant, needed to travel to Australia as chaperone for his parents. The review applicant’s parents had been granted visas to visit Australia but did not speak English and were not familiar with travel. They did not feel confident travelling without the visa applicant as they felt they would be easily confused or get lost.

8. The Tribunal has considered the submissions made by the review applicant, but has decided that the delegate’s decision is not reviewable. The Tribunal finds that the visa applicant did not include particulars of an Australian citizen or permanent resident parent, spouse, de facto partner, child, brother or sister in the visa application. In these circumstances, the requirements of s.338(7)(c) are not met. As the decision is not reviewable on any other ground, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Rachel Homan
   Member