Ampomah (Migration)

[2018] AATA 4443

Ampomah (Migration) [2018] AATA 4443 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Master Shane A Ampomah

VISA APPLICANT:  Ms Gertrude OWUSU SARPONG

CASE NUMBER:  1731677

DIBP REFERENCE(S):  BCC2017/3301046

MEMBER:Nathan Goetz

DATE:13 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2018 at 10:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – incorrect applicant – standing of the review applicant – particulars of the relative included in the 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 Immigration to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This type of decision is reviewable under s.338(7) of the Act.

2. On 11 September 2017, the visa applicant Gertrude OWUSU SARPONG applied to come to Australia on a Visitor (Tourist Stream) visa. She wrote that she wanted to attend her husband Agyei Ampomah’s funeral which was to be held on 27 September 2017. She is a citizen of Ghana. The delegate refused to grant her the visa on 5 October 2017.

3. On 14 December 2017, the review applicant Shane Ampomah, who was born in 2016, lodged a review application with the Tribunal.

4. On 26 October 2018, the Tribunal wrote to the review applicant via his registered migration agent and invited him to comment on the validity of the review application. The Tribunal did this because it appeared to the Tribunal that Shane Ampomah did not have standing to apply for a review of this decision. The letter explained the basis for the Tribunal’s view and invited the review applicant to respond in writing to the concerns by 12 November 2018. No response was has been received by the Tribunal.

5. 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.

6. S.338(7) of the Act provides that a decision to refuse to grant a non-citizen a visa is a ‘Part 5-reviewable decision if (a) the visa could not be granted while the non-citizen is in the migration zone; and (b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and (c) particulars of the relative concerned are included in the application.

7. S.347(2)(c) of the Act provides who may apply to the Tribunal for a review of this decision. This section requires that an application for review can only be made by ‘the relative referred to in the subsection concerned’.

8. In this case, the review applicant Shane Ampomah, who is almost three years of age, has applied for a review of a decision made in respect of his claimed step-mother Gertrude OWUSU SARPONG. According to the information (which the Tribunal accepts as true), Shane Ampomah is an Australian citizen at birth. At the time of his birth, his father Agyei Ampomah was an Australian citizen and his mother Philomina Afriyie held a Bridging E visa.

9. There is some confusion as to the exact nature of the relationship between the review applicant and the visa applicant. No documentation has been provided to show that Gertrude Owusu Sarpong was married to the review applicant’s father Agyei Ampomah, or that the visa applicant remains the step-mother of the review applicant following the death of the review applicant’s father.

10. In the visitor visa application that was lodged with the department, the visa applicant noted that she would be travelling to Australia with her step-daughter Lydia AMPOMA. Lydia AMPOMA also made an application for a visitor visa which was subsequently refused. She sought review of this decision in case 1731674. There is nothing before the Tribunal to show that Lydia AMPOMA is in the legal custody of the visa applicant. The Tribunal notes that the applicants’ claim that Agyei Ampomah died and that the purpose of the visa applicant travelling to Australia was to attend his funeral held on 27 September 2017. The visa applicant stated that she would visit a friend in Australia, Martha Oladesu and that Martha Oladesu would be responsible for her financial support for the visa applicant’s travel to Australia, but later wrote in the application form that Martha Aladesu was her sister. Shane Ampomah is not mentioned in the visitor visa application at all.

11. Assuming that the visa applicant and the review applicant are in a mother-son relationship for the purpose of the application, a review application could only be made by the relative whose particulars had been included in the visitor visa application. As noted above, the review applicant’s particulars were not. 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

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

    Nathan Goetz
    Member