Chibueze (Migration)

[2022] AATA 4176

Chibueze (Migration) [2022] AATA 4176 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Elijah Iheanyi Chibueze
Mr David Enyioma Chibueze

CASE NUMBER:  2213010

HOME AFFAIRS REFERENCE(S):          BCC20222817568

MEMBER:Jessica Henderson

DATE:3 November 2022

PLACE OF DECISION:  Perth

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

Statement made on 03 November 2022 at 6:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visas – subclass 600 – no standing – invalid application –non-reviewable decision – 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 to the Tribunal on 4 September 2022 for review of a decision of the Delegate to refuse to grant Visitor (Class FA) visas to the visa applicants. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. 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).

3. 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. They include certain decisions to refuse or cancel visas and a range of sponsorship and nomination decisions.

4. According to their visa application, the visa applicants were outside Australia at the time that the visa applications were made.  The stream of visa that they applied for was the tourist stream, and their reason for visiting Australia was said to be ‘Family visit’.  The family member that was identified was said to be the primary review applicant’s fiancée, who identifies as the mother of the second review applicant but is neither his biological nor adoptive parent pursuant to Australian law.

5. Section 411 of the Act does not apply to the visa application.

6. Section 338 of the Act contains the definition of a Part 5-reviewable decision.  Sub-section 338(1) limits the application of the section in certain non-applicable circumstances.  Sub-sections 338(2), (3), and (3A) apply only where the application has been made within the migration zone, which does not apply.  Subsection 338(4) applies to bridging visas where a non-citizen is in detention, which does not apply.

7. Subsections 338(5)-(7) apply where a visa application cannot be granted while a non-citizen is in the migration zone.  As the visa applicants made their applications whilst outside the migration zone, the visa applications could only be granted whilst they were outside the migration zone.

8. Subsection 338(5) applies where a criterion of the grant of the visa is that the non-citizen is sponsored or nominated by an Australian citizen, a company operating in the migration zone, a partnership operating in the migration zone, the holder of a permanent visa, or a New Zealand citizen who holds a special category visa.  That does not apply to the visa applications under review.

9. Subsection 338(6) applies where a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident.  That does not apply to the visa application under review.

10. Subsection 338(7) applies where a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen and particulars of the relative concerned are included in the application.  The Tribunal has considered whether that sub-section has application in respect of either of the visa applications under review and concludes that it does not.  There is no evidence to suggest that the primary review applicant’s ‘fiancee’ would meet the criteria to be identified as a de facto spouse pursuant to Australian law, or meet the criteria to be recognised under Australian law as the mother of the second review applicant.  In any event, if this section applied the person with standing to bring the review application would have been the primary applicant’s fiancée and not the review applicants.

11. Subsection (7A) applies only where the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.  For reasons already canvassed, that does not apply to the visa application under review.

12. Subsection 8 applies where the applicant, as a requirement of the visa criteria, was sponsored or nominated by an Australian citizen/permanent visa holder, or a New Zealand citizen holding a special category visa.  That does not apply to the visa application under review.

13. Subsection 9 provides that a decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.  It has no application to this matter.

14. The circumstances of the application for a visa subclass 600 do not apply to any of the sub-categories of reviewable decision provided for in either Parts 5 or 7.  The decision is therefore not reviewable.

15. On 12 September 2022 the Tribunal wrote to the review applicants setting out the preliminary view that the applications are not valid applications as the decision is not a decision that can be reviewed by the Tribunal.  The letter set out further that the review applicants would not have standing to bring an application pursuant to subsection 338(7).  The review applicants were invited to comment by 26 September 2022.  On 13 September 2022 the review applicants filed a withdrawal, which was not accepted by the Tribunal because of the Tribunal’s view that the applications are not valid.

16. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review is not properly made and the Tribunal does not have jurisdiction in this matter.

    decision

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

    Jessica Henderson
    Member