Abdulkadir (Migration)

[2018] AATA 2821

Abdulkadir (Migration) [2018] AATA 2821 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ayub Siraj Abdulkadir

VISA APPLICANT:  Ms Ferdosa Ibrahim Abdulkadir

CASE NUMBER:  1807290

DIBP REFERENCE:  BCC2018/290136

MEMBER:Rosa Gagliardi

DATE:18 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2018 at 4:30pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Incorrect applicant – Member of the family unit

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347

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 30 January 2018, 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 18 March 2018. 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. On 22 May 2018 the Tribunal wrote to the review applicant in the interests of natural justice to advise that the person who is entitled to apply to the Tribunal in relation to the Departmental decision in this case, is a parent/spouse/de facto partner/child/brother/sister of the visa applicant (s) who is an Australian citizen or permanent resident and whose particulars were included in the visa application.  The Tribunal advised that the review applicant was not such a person and consequently it appeared that the application was not a valid one.  The review applicant was provided an opportunity to comment on the validity of the application.

5. Essentially, the review applicant is seeking to review a decision by the Department of Home Affairs to refuse his mother-in-law’s application to visit Australia to assist his wife who is under stress and needs her mother.  In a letter in response to the Tribunal’s invitation to comment, the review applicant stated that he considers that he was representing his wife and that the circumstances of his case were compelling.  It appears, however, that the review applicant took “relative” to mean relative in the ordinary sense and the statutory interpretation was not applied to that term.  As such, an officer of the Tribunal has spoken to the review applicant to explain that “relative” is a technical term that only encompasses the meanings as set out above and he did not meet the requisite definition to sponsor his mother-in-law.  From the notations on file it appears that the review applicant is now aware of the situation and intends to lodge a valid application.

6. 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. 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

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

   Rosa Gagliardi
   Member