Khalil (Migration)

[2023] AATA 585

Khalil (Migration) [2023] AATA 585 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Montkreiz Naguib Girgis Khalil

CASE NUMBER:  2215683

HOME AFFAIRS REFERENCE(S):          PNJ

MEMBER:Brendan Darcy

DATE:6 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 February 2023 at 12:08pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – application fee had not been paid – no determination has been made that the fee should be reduced –no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 338, 347

Migration Regulations 1994, r 4.13

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 25 October 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 25 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.

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

4. On 26 October 202, the Tribunal sought for more information about the review applicant’s relationship to the visa applicant. The parties did not respond.

5. On 31 October 2022, the Tribunal invited the applciant to comment on the validity of the application for review, and to do so by 14 November 2022. The Tribunal did not receive a response, either from the review applicant or on his behalf, 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(7), the application for review could only be made by the sponsor or the relative referred to in that subsection. In the present case, the review application was made by the claimed child of the review applicant. Children of visa applicants are to be considered as relatives under s 338(7).   Although the parties have not provided documentary evidence such as a certified birth certificate or that he is an Australian citizen or permanent resident, the Tribunal accepts the review applicant meets this criterion.

7. The Tribunal also notes the applicant did not pay the required fee within the prescribed time. This was raised in the invitation to comment. This renders the application as lacking jurisdiction with the Tribunal, pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994.

8. As 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

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

   Brendan Darcy
   Member