Chaudhry (Migration)

[2018] AATA 4033

Chaudhry (Migration) [2018] AATA 4033 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kashif Sultan Chaudhry

VISA APPLICANT:  Miss NAYALISH FATIMA

CASE NUMBER:  1823570

DIBP REFERENCE(S):  BCC2018/2045679

MEMBER:Linda Holub

DATE:15 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2018 at 9:28am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – incorrect applicant – members of the family unit – 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, dated 25 June 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(6) of the Act.

2. The review application was lodged with the Tribunal on 15 August 2018. 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(6), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c).

4. The Tribunal wrote to the review applicant on 19 September 2018 explaining that a person who is entitled to apply for review to the Department’s decision is a parent / spouse / de facto partner / child / brother / sister of the visa applicant who is an Australian citizen or permanent resident and whose particulars were included on the visa application.  The letter explained that he was not such a person as he is the uncle of the visa applicant.  He was invited to respond in respond by 3 October 2018.

5. In response on 24 September 2018 the review applicant wrote to the Tribunal but did not respond to this issue.  In the letter, the review applicant addressed a separate and unrelated matter

6. As the decision that is the subject of the review application is a decision covered by s.338(6), 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 visa applicant’s uncle. 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

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

   Linda Holub
   Member