El-Ghul (Migration)

[2018] AATA 3023

El-Ghul (Migration) [2018] AATA 3023 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad El-Ghul

VISA APPLICANT:  Dr Saba Bebawi

CASE NUMBER:  1808603

DIBP REFERENCE(S):  BCC2018/794410

MEMBER:L.Symons

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2018 at 11:04am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – incorrect applicant – 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 6 March 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(5) of the Act.

2. The review application was lodged with the Tribunal on 28 March 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(5) of the Act, an application for review may only be made by the sponsor or nominator referred to in s.347(2)(c) of the Act which states that the relative must be an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen and particulars of this relative must be included in the visa application.

4. In this case, the application for review was made by the visa applicant. He has no standing to make an application for review in relation to his own visa application. The review applicant needed to be a relative referred to in s.347(2)(c) of the Act. On 9 April 2018, an officer of the Tribunal spoke to the visa applicant’s sister, who resides in Australia, and informed her that the application for review had been incorrectly completed and that it must be made by the person who has the right to apply for review. She indicated that an amended application for review would be sent to the Tribunal by email. An amended application for review was not sent to the Tribunal.

5. On 22 May 2018, an officer of the Tribunal wrote to the visa applicant inviting him to comment on the validity of his application for review in writing by 5 June 2018. On 4 June 2018, the Tribunal received a response from the visa applicant. In his response, he made submissions in relation to the merits of his application for a Visitor visa. He did not address the issue of jurisdiction. He did not file an amended application for review.

6. As the decision that is the subject of the review application is a decision covered by s.338(5) of the Act, 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. As such, the application for review is not an application properly made under s.347 of the Act 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 Symons
   Member