Giannitsopoulos (Migration)

[2022] AATA 1722

Giannitsopoulos (Migration) [2022] AATA 1722 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Resmije Giannitsopoulos

VISA APPLICANT:  Miss Bora Doci

CASE NUMBER:  2200684

HOME AFFAIRS REFERENCE(S):          OSF2016/029139

MEMBER:Linda Holub

DATE:27 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2022 at 5:01pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – right to apply for review – sponsor or nominator – review application was made by the sponsor’s wife – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 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 17 November 2021, to refuse to grant a Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(5) of the Act.

2.    The review application was lodged with the Tribunal on 18 January 2022. 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), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s 347(2)(b).

4.    The Tribunal wrote to the applicant on 1 April 2022 explaining that the person who is entitled to apply for review to this decision is the sponsor who is an Australian citizen or permanent resident. The letter also explained that she is not such a person, and therefore it appears that application is not a valid application. She was provided until 29 April 2022 to make any comments.

5.    In the case, the Tribunal notes that in respect of the visa application her husband was the ‘sponsor’ of the application and Mrs Resmije Giannitsopoulos was included in that application as the ‘resident’.

6.    The Tribunal received a response from Mrs Resmije Giannitsopoulos stating that she received a letter stating that she is not an Australian citizen or permanent resident and therefore, she is not eligible to apply for an appeal. She wrote that it appears her name was misspelt and that could be the reason for the refusal and provided the correct spelling of her name. She stated that she is an Australian citizen and enclosed a copy of her passport.

7.    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. In the present case, the review application was made by the sponsor’s wife and person nominated as the ‘resident’ in the visa application. 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.

Linda Holub
Member