Dang (Migration)

[2023] AATA 940

Dang (Migration) [2023] AATA 940 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ngoc Hung Dang
Mr Tran Anh Khoa Dang

CASE NUMBER:  2300145

HOME AFFAIRS REFERENCE(S):          BCC2019/6899709

MEMBER:Nathan Goetz

DATE:31 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2023 at 1:50pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – standing to apply for review – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a grant Partner (Provisional) (Class UF) visas

2. On 28 December 2019 Mr Ngoc Hung Dang (Mr Ngoc) applied for the partner visa. In his partner visa application form, he identifies that he is currently outside of Australia and located in Vietnam, where he is a citizen of that country. Included in the application for migration to Australia was his child, Mr Tran Anh Khoa Dang (Mr Tran).

3. The sponsor is identified as Ms Thi Ngoc Dung Doan (Ms Doan) who is an Australian citizen by grant.

4. On 29 November 2022 the delegate refused to grant the visa. In the letter dated 29 November 2022 notifying the applicants that they had been refused the visa, the applicants were advised of their review rights. In the letter, the applicants were advised:

   ·     The sponsor was entitled to apply for merits review of the decision to the Tribunal

   ·     Any application for merits review of the decision must be given to the Tribunal within 70 calendar days after the day they was taken to have received the notification letter

   ·     As the letter was sent to the applicants by email, they were taken to have received it at the end of the day it was transmitted.

5. On 5 January 2023 Mr Ngoc and Mr Tran applied to the Tribunal for review of the decision. In the review application form, the sponsor is not detailed.

6. On 6 January 2023 the Tribunal wrote to the applicants and raised the validity of the review for their comment. This was because the applicants had no rights to seek review of the decision. As made clear in the Tribunal letter, it was the sponsor who had the right to seek review of the decision. The applicants were invited to remedy the defect by having the sponsor apply for review of the decision. The sponsor did not do so.

7. On 7 February 2023 the Tribunal wrote to the applicants again and raised with them that the review application appeared to be invalid. The applicants were invited to comment on the validity of the review application.

8. On 8 February 2023 Mr Ngoc responded to the letter. In that letter, Mr Ngoc wrote that he applied for review under his name because he was the main applicant for the visa, and because his sponsor rarely checks and uses her email. He apologised for this and wished to continue with the present review application because it was now too late for the sponsor to lodge a valid review application.

   FINDINGS AND REASONS

9. 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(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s 347(2)(b).

10. The Tribunal wrote to the applicants to encourage them to remedy the deficiency in the review application within the remaining timeframe to lodge the review by having the sponsor remedy. It is regrettable they did not do so.

11. As the decision that is the subject of the review application is a decision covered by s 338(5), the application for review could only be made by the sponsor referred to in that subsection.

12. In the present case, the review application was made by the visa applicants. 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

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

    Nathan Goetz
    Member