Dey (Migration)

[2022] AATA 1187

Dey (Migration) [2022] AATA 1187 (23 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oishik Dey

CASE NUMBER:  2117516

HOME AFFAIRS REFERENCE(S):          BCC2021/1431071 BCC20211431071

MEMBER:Brendan Darcy

DATE:23 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 23 February 2022 at 8:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – outside migration zone at time of review application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), 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 Home Affairs, dated 11 August 2021, to refuse to grant a Visitor (Class FA) 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 25 November 2021. 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 10 January 2022, the Tribunal emailed a letter to the applicant to invite comment on the application for review, and to provide comment in writing by 24 January 2022.

5. The Tribunal did not receive any comment or response, either from the applicant or from anyone on behalf of the applicant, right up to the time of making this decision.

6. 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 made by a citizen of Bangladesh outside of Australia’s migration zone. The visa application was for a visitor visa in the ‘tourism’ stream. It was not a ‘family sponsored’ visa for the purpose to visa a relative.

7. 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.

   Brendan Darcy
   Member