Bricknall (Migration)

[2019] AATA 2084

Bricknall (Migration) [2019] AATA 2084 (31 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Romain James Bricknall

VISA APPLICANTS:  Ms Yevheniia Crampton
Master Timur Bilichenko
Miss Anastaciia Bilichenko

CASE NUMBER:  1729799

DIBP REFERENCE(S):  BCC2017/3818287

MEMBER:Tigiilagi Eteuati

DATE:31 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2019 at 2:58pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – standing to apply for review – relative of visa applicant – boyfriend – not de facto partner – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 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, dated 8 November 2017, to refuse to grant Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 27 November 2017. 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. The primary visa applicant in this case (visa applicant) is the girlfriend of the review applicant. The other two applicants are the visa applicant’s children.

5. The Tribunal held a hearing on 6 September 2018 to determine whether the review applicant was a relative of the visa applicant. Section 338(7) of the Act when read with section 347(2)(c) allows for review by a parent, spouse, de facto partner, child, brother or sister of the visa applicant.

6. Both the review applicant and the visa applicant indicated that they had met in Australia on a previous visit by the visa applicant. They had formed a romantic relationship before the visa applicant departed Australia. They both indicated that they still considered themselves to be in a relationship but were not married or in a de facto relationship. They both indicated that they wish to spend time with each other in Australia to see how the relationship developed.

7. 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 Tribunal finds that the review applicant is not the parent, spouse, de facto partner, child, brother or sister of the visa applicant. In particular, the review applicant is not the visa applicant’s de facto partner for the purpose of section 5CB of the Act. 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

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

   Tigiilagi Eteuati
   Member