Begari (Migration)

[2024] AATA 2256

Begari (Migration) [2024] AATA 2256 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dema Begari

VISA APPLICANT:  Mrs Dorothy Lapinda Wani

CASE NUMBER:  2406428

HOME AFFAIRS REFERENCE(S):          BCC2024/1908278

MEMBER:Jane Marquard

DATE:6 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 May 2024 at 9:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – review applicant has no standing to lodge the application – is not a specified relative – no standing – invalid application –no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347, 411, 412, Schedule 2

Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made by the review applicant to the Tribunal on 27 March 2024 for review of a decision by the Department of Home Affairs (Department) on the same day to refuse the visa applicant a Visitor (Class FA) (Subclass 600) visa.

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 (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.

4. The applicant applied for a Visitor (Class FA) (Subclass 600) visa in the ‘Tourist’ stream. A decision to refuse a visitor visa under the ‘Tourist’ stream lodged offshore is reviewable if particulars of a specified relative (an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant), were included in the application (s 338(7)(c) of the Act). The review applicant is the nephew of the visa applicant.

5. A decision to refuse a visitor visa under the ‘Tourist’ stream is not reviewable in the circumstances of this case because particulars of an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant, were not included in the application.  

6. Furthermore, for Part 5 reviewable decisions, only the specified relative may lodge the application for review (s 347(2)(c) of the Act). In this case, the review applicant has no standing to lodge the application, as he is not a specified relative as set out above.

7. The Tribunal wrote to the applicants on 3 April 2024 to notify them that it appeared that the Tribunal had no jurisdiction in this matter, for the reasons set out above and as the requisite fee had not been paid. The review applicant was asked to respond or provide comments by 17 April 2024, but as of the date of this decision, no response has been received.

8. The Tribunal is satisfied that the Department’s decision is not reviewable for the reasons set out above.

9. It follows that the application for review was not properly made, and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

    Jane Marquard
    Member