Al Hallak (Migration)

[2023] AATA 586

Al Hallak (Migration) [2023] AATA 586 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bassem Al Hallak

CASE NUMBER:  2216266

HOME AFFAIRS REFERENCE(S):          BCC2018/2520592

MEMBER:Alison Murphy

DATE:13 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2023 at 1:35pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – application fee had not been paid – no determination has been made that the fee should be reduced – application for review could only be made by the non-citizen who is the subject of the decision – no standing – invalid application –no jurisdiction

LEGISLATION

Migration Act 1958, ss 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 Home Affairs, dated 17 October 2022, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(5) of the Act.

2. The review application was lodged with the Tribunal on 7 November 2022 naming the visa applicant, Mr Bassem Al Hallak, as the review applicant. 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. On 7 November 2022, a Tribunal officer wrote to the applicant advising that it appeared the application for review had been lodged on the wrong form; that the prescribed fee had not been paid and that the wrong person may have lodged the application for review. That correspondence attached the correct form for a review application in the Migration and Refugee Division. The following day the applicant lodged a further application for review form on the wrong form, again naming the visa applicant as the review applicant. The prescribed fee was not paid.

4. On 20 January 2023, the Tribunal wrote to the applicant advising that it appeared the review application was not valid because the person entitled to apply for the review was the sponsor and he was not the sponsor. The review applicant was invited to comment on whether a valid review application had been made. The Tribunal did not receive any response to that correspondence.

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. 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, Mr Yasser Hassan El Hallack, referred to in that subsection. In the present case, the review application was made by the visa applicant, Mr Bassem Al Hallak. As well, the prescribed fee has not been paid. 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.

   Alison Murphy
   Member