Boonjanthuek (Migration)

[2023] AATA 705

Boonjanthuek (Migration) [2023] AATA 705 (1 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jannipha Boonjanthuek
Miss Kaewmanee Boonjanthuek
Master Boramet Boonjanthuek

CASE NUMBER:  2215611

HOME AFFAIRS REFERENCE(S):          BCC2022/2158051

MEMBER:Tamara Hamilton-Noy

DATE:1 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2023 at 8:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa –application for review is not an application properly made under s 347 –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 18 August 2022, to refuse to grant Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7) of the Act.

2. The review application was lodged with the Tribunal on 24 October 2022. 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 25 January 2023, the Tribunal wrote to the applicants stating that it appeared the application was not a valid application as the applicants were not a parent, spouse, de facto partner, child, brother or sister of the visa applicant.  The applicants were invited to respond to this information by 15 February 2023.  On 3 February 2023, the applicants wrote to the Tribunal querying how their application before the Tribunal could be withdrawn. 

5. 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. In the present case, the review application was made by the de facto partner of the stepfather of the visa applicant, and by the children of the de facto partner of the stepfather of the visa applicant. 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

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

   Tamara Hamilton-Noy
   Member