Budhbhatti (Migration)

[2023] AATA 4201

Budhbhatti (Migration) [2023] AATA 4201 (6 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Keya Ashok Budhbhatti

VISA APPLICANT:  Miss Khyati Ashokbhai Budhbatti

CASE NUMBER:  2317268

HOME AFFAIRS REFERENCE(S):          CLF2020/74285 PNJ

MEMBER:Roslyn Smidt

DATE:6 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 6 December 2023 at  3:00 PM

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – incorrect applicant – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5(1), 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 5 October 2023, to refuse to grant a Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 26 October 2023. 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(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s 347(2)(a) and (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

4. On 27 October 2023 the applicant was advised that it appeared that the Tribunal did not have jurisdiction in her case because the application had been lodged by a third person. That person responded. It was not suggested that the application had been lodged by the appropriate person, but set out reasons why she had been unable to sign the application.

5. As the decision that is the subject of the review application is a decision covered by s 338(2), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was not made by a family member. 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.

   Roslyn Smidt
   Member