GILL (Migration)

[2018] AATA 2065

GILL (Migration) [2018] AATA 2065 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sarjeet Singh GILL

VISA APPLICANTS:  Miss Saranjeet Kaur GILL
Mrs Satwinder Kaur GILL

CASE NUMBER:  1806739

DIBP REFERENCE(S):  CLF2016/48933 CLF2018/13557

MEMBER:Helena Claringbold

DATE:7 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2018 at 10:36am

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Incorrect applicant – Member of the family unit

LEGISLATION

Migration Act 1958, ss 5(1), 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 13 March 2018, to refuse to grant Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 13 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(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 16 March 2018, the Tribunal wrote to the sponsor and told him that the person entitled to apply to the Tribunal for review in this matter is Miss Sarajanjeet Kaur Gill.  The Tribunal sent to the sponsor a M1 form and requested that it be completed, listing the sponsor as the representative and Miss Gill as the Primary Review Applicant. The sponsor was reminded of time limits with respect to applying to the Tribunal for review.

5. On 18 April 2018, the Tribunal wrote to the sponsor and advised him that the person entitled to apply to the Tribunal for review in this matter is Miss Gill. He was informed that he is not the person entitled to apply to the Tribunal for review and that it appeared that the application for review is not valid. He was advised that the Tribunal had made previous unsuccessful attempts to contact him and it appeared that the application for review was out of time. The sponsor was invited to comment on the validity of the review application with comment to be with the Tribunal by 2 May 2018. At the time of this decision no further information has been received.

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 the sponsor. 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

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

   Helena Claringbold
   Member