1618351 (Migration)

[2016] AATA 4759

1618351 (Migration) [2016] AATA 4759 (28 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chan Tho Thack

VISA APPLICANTS:  Ms Sa Ren Neang
Mr Kim Sone Chau
Mr La Dan Kol
Miss Kim Lan Neang

CASE NUMBER:  1618351

DIBP REFERENCE(S):  2015071903 OSF2015/071903

MEMBER:Miriam Holmes

DATE:28 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2016 at 7:28am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 3 November 2016 for review of a decision of a delegate of the Minister for Immigration, dated 29 September 2016, to refuse to grant New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas under s.65 of the Migration Act 1958 (the Act).

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. 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. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions but not a decision to refuse to grant New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas where the visa applicants applied for the visas from outside the migration zone.

4. Section 347(1) of the Act provides that a person may apply to the Tribunal for review of a Part 5 –reviewable decision.  Section 347 of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.

5. The first issue for the Tribunal to consider is whether the decision to refuse to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) (subclass 461 visa) is a Part 5- reviewable decision. The term “Part 5-reviewable decision” is defined in s338 of the Act.

6. On 29 December 2015 the visa applicants made an application for New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas. This application was made while the visa applicants were offshore, outside the migration zone.

7. On 17 November 2016 the Tribunal wrote to the review applicant and invited him to comment on the validity of the review application. The Tribunal noted that the visa applicants, including Ms Neang, were not in Australia at the time the visa application was lodged on 29 December 2015 and therefore the review application is not a valid application.

8. The representative for the review applicant responded on 21 November 2016  and noted that “we understand that this is not a reviewable case and the AAT does not have jurisdiction to hear this matter. It is unfortunate that our client has been given incorrect information from DIBP as per decision attached.”

9. The Tribunal has considered the submission, visa application, review application and the Act and for the following reasons the Tribunal is not satisfied that the decision to refuse to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP)(subclass 461) visa is a Part 5-reviewable decision. 

10. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the visa application and the application for review is made:s.338(2)(b) and s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. The Tribunal finds that the visa applicants were not in the migration zone (ie in Australia) at the time the visa application was made. Therefore there is no Part 5- reviewable decision under s338(2). In addition, the visa applicants were not in the migration zone (ie in Australia) at the time the review application was made. There is no right of appeal by a visa applicant if he or she is outside Australia when the review application is made (see s347(3)). In any event, the person who applied for review was not the visa applicant but Mr Thack and he does not have standing to apply for review of a decision under s338(2); see s347(2)(a) and (3).

11. In the case of a decision described in s.338(5), this is not applicable as there is no requirement as a criterion for the grant of the subclass 461 visa that the visa applicant is sponsored, see Part 461 of Schedule 2 of the Regulations. Therefore there is no Part 5-reviewable decision as defined in s.338(5). Therefore the review applicant cannot seek to apply for review on this basis.

12. In relation to the other paragraphs of s.338, none of these are applicable to the decision the subject of the review application.

13. The Tribunal notes, that there is only a Part 5-reviewable decision in relation to a subclass 461 visa under s338, where a visa applicant makes the visa application in Australia. In addition, the only person who can seek review is the visa applicant if they makes the review application when they are in Australia (ie in the migration zone)(s.347). These requirements were not met in this case.

14. The Tribunal accepts that the visa applicants were given incorrect advice by the Department when the Department advised them that they had appeal rights in the decision notification letters.

15. Therefore, as there is no Part 5-reviewable decision at the time the review application was lodged, it follows that the application was not properly made under s.347 for review of a Part 5-reviewable decision for the purposes of s.348. Consequently, the Tribunal does not have jurisdiction in this matter.

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

    Miriam Holmes
    Senior Member