Hegde (Migration)

[2023] AATA 1374

Hegde (Migration) [2023] AATA 1374 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharat Hegde

CASE NUMBER:  2214508

HOME AFFAIRS REFERENCE(S):          BCC20223742934

MEMBER:Linda Holub

DATE:2 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 2 February 2023 at 2:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – standing to apply for review – relative of the visa applicant – 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 30 September 2022, 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(7) of the Act.

2.    The review application was lodged with the Tribunal on 1 October 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.

1. 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(7), an application for review may only be made by the relative referred to in the subsection concerned: s 347(2)(c).

4.    The Tribunal wrote to the applicant on 10 November 2022 indicating that it appeared that a valid application for review had not been made by him. The letter explained that it appears that the review application is not a Part 5-reviewable decision under s 338(5) because the visa applicant was not sponsored or nominated by the relevant person specified in s 338(5)(b) (e.g. an Australian citizen). Furthermore, the letter explained that it appears it is not a Part 5-reviewable decision under s 338(7) because that provision requires that particulars of the relative concerned (i.e. the Australian citizen or permanent resident the visa applicant intends to visit, who is a brother, sister, parent, spouse, de facto partner or child of the visa applicant) are included in the visa application. This doesn’t appear to be the case in his application.

5.    The applicant was provided until 24 November 2022 to make any comments he wished to make in regard to whether a valid application has been lodged. The applicant responded by email on 23 November 2022 seeking additional time until 10 December 2022 to prepare his comments with supporting documentation. He wrote that he has no prior experience in this process and therefore needs additional time. That request was granted by the Tribunal, and he was provided until 10 December 2022 to respond. On 23 November 2022 he acknowledged this and since that time the applicant has not provided any further submissions to the Tribunal.

6.    As the decision that is the subject of the review application is a decision covered by s 338(7), 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 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 Holub
Member