1601876 (Migration)

[2016] AATA 3588

1601876 (Migration) [2016] AATA 3588 (19 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Vanessa Yetunde Gbajabiamila

VISA APPLICANT:  Mrs Evelyn Omolara Wilson

CASE NUMBER:  1601876

DIBP REFERENCE(S):  BCC2015/3573127

MEMBER:Amanda Goodier

DATE:19 March 2016

PLACE OF DECISION:  Perth

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

Statement made on 19 March 2016 at 12:46pm

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 19 January 2016, 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(5) of the Act.

2. The review application was lodged with the Tribunal on 17 February 2016. 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. The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are MRT-reviewable. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions but not a decision to refuse to grant a Visitor (Class FA) Subclass 600 visa, other than as indicated below.

4. Decisions to refuse to grant a visitor visa are only MRT-reviewable if:

   · the visa applicant is in Australia at the time of lodging the review application (s338(2) of the Act)

   ·the visa applicant, as required by a criteria for the grant of the visa, was sponsored by an Australian citizen, permanent resident or company that operates in the migration zone (s338(5) of the Act) or

   ·the visa applicant was intending to visit an Australian citizen or permanent resident who is a parent, partner, child, brother or sister, and their details were provided in their application (s338(7) of the Act).

5. 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(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b).

6. The evidence before the Tribunal indicates that the visa applicant was outside Australia at the time of lodging the review application.

7. The evidence before the Tribunal indicates that in this case the visa applicant was sponsored for the visa by her son-in-law, Quam Olumide Gbajabiamila, who according to departmental records is the holder of a Temporary Work (Skilled) subclass 457 visa and is not an Australian citizen or permanent resident. 

8. The person seeking review of the decision to refuse the application is the visa applicant’s daughter and the spouse of the sponsor.  Departmental records also indicate that the review applicant is the holder of a Temporary Work (Skilled) subclass 457 visa and is not an Australian citizen or permanent resident.

9. The visa applicant indicated in her application form for the visa that she was intending to visit Australia for a family visit and stay with her daughter and son-in-law.

10. On 24 February 2016 a natural justice letter was sent to the review applicant advising that the person entitled to seek review of the decision with the Tribunal is the sponsor or nominator of the visa applicant who is also an Australian citizen or permanent resident. The review applicant was advised that she was not such a person and comments were sought on whether a valid application for review had been made.

11. The review applicant responded that it was stated in the notification by the department that the decision can be reviewed and the sponsor can apply for merits review of the decision to the Tribunal. The review applicant also indicated that the decision maker clearly stated that the sponsorship requirements were not the reason for the refusal.

12. The Tribunal acknowledges the comments made by the review applicant.  However, the legislation clearly sets out who may seek review of decisions to refuse visitor visas with the Tribunal.

13. The Tribunal finds that the person who sponsored the visa applicant is Quam Olumide Gbajabiamila, the visa applicant’s son-in-law.  As the decision that is the subject of the review application is a decision covered by s.338(5), the application for review could only be made by the sponsor referred to in that subsection. In the present case, the review application was not made by the sponsor referred to in the subsection and was made by the spouse of the sponsor.

14. The Tribunal also finds that the visa applicant was not sponsored by an Australian citizen, permanent resident or company that operates in the migration zone and did not provide any details of an Australian citizen or permanent resident who is a parent, partner, child, brother or sister of the visa applicant in their application. The evidence before the Tribunal is that neither the review applicant or her spouse who was the sponsor, are Australian citizens or permanent residents as required by s.338(5) and s.338(7)(b).

15. As such the application for review is not an application properly made under s.347 and it follows the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Amanda Goodier
    Member