Alagarsamy (Migration)

[2023] AATA 708

Alagarsamy (Migration) [2023] AATA 708 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabu Alagarsamy

CASE NUMBER:  2217243

HOME AFFAIRS REFERENCE(S):          BCC2022/4771690

MEMBER:Scott Clarey

DATE:7 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 7 March 2023 at 2:22pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – the relative concerned (the Australian citizen or permanent resident the visa applicant intends to visit) is not specified – no right of merits review for this decision – invalid application –no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347, 412, Schedule 2

Migration Regulations 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 24 November 2022 for review of to refuse to grant Visitor (Class FA) Subclass 600 visas under s 65 of the Migration Act 1958 (Cth) (the Act). For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

3. In this instance, decision to refuse an application for Visitor (Class FA) visas is not a Part 5-reviewable decision under s 338(7) because it requires that in order for an application to be properly made, details of the relative concerned (i.e. the Australian citizen or permanent resident the visa applicant intends to visit, who is a brother, sister, parent, spouse, de facto partner or child of the visa applicant) are included in the visa application. In the application under review, the relative concerned (the Australian citizen or permanent resident the visa applicant intends to visit) is not specified. As the details of the relative concerned included in the visa application do not conform with the requirements specified in s 338(7), I am of the view that the decision does not meet the requirements of s 338 of the Act to be a Part 5-reviewable decision.

4. On 15 December 2022 the Tribunal wrote to the applicant to inform them that there were potential jurisdictional issues with their application and invited them to comment on the validity of their application in writing by 9 January 2023. The Tribunal did not receive a written response to its letter from the applicant. I note also that information sent by the Department to the applicant with the delegate’s decision record stated that there ‘is no right of merits review for this decision’.

5. I find that the that the application, for reasons specified above, was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Scott Clarey
   Member