1513570 (Migration)

[2016] AATA 3144

1513570 (Migration) [2016] AATA 3144 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hasham Arif

VISA APPLICANTS:  Mr Mahmood Arif
Mrs Bushra Arif
Mr Assam Arif

CASE NUMBER:  1513570

DIBP REFERENCE(S):  BCC2015/1920606

MEMBER:Alison Mercer

DATE:28 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 January 2016 at 6:08pm

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 5 August 2015, to refuse to grant Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 6 October 2015. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b).  In the case of the Class FA subclass 600 Visitor visa category (whether Sponsored Family stream or Tourist stream), s.347(2)(c) provides that only a specified Australian relative may lodge an application for review on behalf of the visa applicants; namely, an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child or sibling of the non-citizen visa applicant.

4. In this case, the material on the Department and Tribunal file indicates that the visa applicants applied for Class FA (Visitor) subclass 600 (Sponsored Family stream) visas on 4 July 2015 to visit the review applicant, who is the son of the first and second named applicants and the brother of the third named applicant.  The Department’s records indicate that the review applicant currently holds a subclass 485 (Skilled Graduate) temporary visa, and is thus neither an Australian permanent resident nor an Australian citizen.

5. With the review application, the review application provided a statement in which he indicated that the family made a mistake due to lack of information on their part, in that they applied for a Sponsored Family visitor visa, rather than just Tourist visas to visit Australia to attend the review applicant’s graduation and have a family reunion.  The review applicant noted that the family still wished to visit Australia to see him, and he asked that their visa applications be reassessed as Tourist visas and not Sponsored Family visas.

6. On 9 October 2015, the Tribunal wrote to the review applicant to advise that a preliminary view had been formed that the only person authorised to apply for review to the Tribunal was the sponsor who was an Australian citizen or Australian permanent resident. As the review applicant was not either of these, it therefore appeared that the review application had not been validly lodged.  The review applicant’s previous submission was acknowledged and he was invited to make any further submissions by 23 October 2015, at which point the matter would be referred to a Tribunal Member who would determine whether it had been validly lodged or not.  The review applicant was advised that he would be notified of the outcome.

7. The Tribunal did not receive any further submissions from the review applicant and has therefore determined the issue of validity on the material before it.

8. For the reasons set out in paragraphs 3 and 4 above, the Tribunal concludes that it does not have jurisdiction to review the visitor visa refusals made by the visa applicants, as the requirements of ss.338(7) and 347(2)(c) – which are mandatory – are not met in relation to the Class FA (Visitor) subclass 600 (Sponsored Family stream) visa applications, as the review applicant is not an Australian citizen or permanent resident.  The Tribunal notes that even if it were legally able to treat the visa applications as having been made in the Class FA (Visitor) subclass 600 (Tourist stream), s.338(7) still specifies that only a specified relative who is an Australian citizen or permanent resident has standing to apply for review.

9. As the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by the sponsor or relative referred to in that subsection. In the present case, the review application was made by a review applicant who is a specified relative in relation to the visa applicants, but who is not an Australian citizen or permanent resident, as is required. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

    Alison Mercer
    Member