1514905 (Migration)

[2016] AATA 4616

1514905 (Migration) [2016] AATA 4616 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Thuy Do

VISA APPLICANT:  Mrs Thi Thu Van Pham

CASE NUMBER:  1514905

DIBP REFERENCE(S):  02047360

MEMBER:Nicola Findson

DATE:31 October 2016

PLACE OF DECISION:  Perth

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

Statement made on 31 October 2016 at 3:12pm

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 29 September 2015, to refuse to grant a Visitor (Class FA) visa 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 3 November 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 relative referred to in the subsection concerned: s.347(2)(c).

4. In this case, the material on the Department and Tribunal file indicates that the visa applicant applied for Class FA (Visitor) subclass 600 (Tourist) visa on 13 August 2015, to visit the review applicant and his wife (who is the applicant’s daughter, and who currently is neither an Australian permanent resident nor an Australian citizen). The Department’s records indicate that the review applicant is an Australian permanent resident.   

5. On 31 October 2016, the Tribunal held a hearing and spoke with the review applicant in relation to the issue of jurisdiction of the Tribunal to consider the review application.  The applicant was informed by the Tribunal that a preliminary view had been formed that he was not a person authorised to apply for review to the Tribunal in respect of the refusal decision. And, as such, it therefore appeared that the review application had not been validly lodged.  The review applicant responded that he just wanted the applicant to come to Australia to visit his wife and their newborn child.

6. 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 refusal made by the visa applicant, as the requirements of ss338(7) and 347(2)(c) – which are mandatory – are not met in relation to the visitor visa application, as the review applicant is not a specified relative.

7. 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 relative referred to in that subsection. In the present case, the review application was made by the applicant’s son-in-law, who is not a specified relative in relation to the visa applicant. 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

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

   Nicola Findson
   Member