Liu (Migration)

[2023] AATA 1907

Liu (Migration) [2023] AATA 1907 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hao Liu

VISA APPLICANT:  Mr Jingtao Sun

CASE NUMBER:  2301825

HOME AFFAIRS REFERENCE(S):          BCC2022/5594061 PNJ

MEMBER:Rachel Da Costa

DATE:19 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2023 at 8:49am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – sponsorship and application for review by specified relative – sponsor/review applicant step-daughter of visa applicant – specified relatives limited and specific – ‘child’ does not include ‘step-child’ for this purpose – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 338(2), (5)(b), (7)(b), 347(2)(c)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 600.221(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 13 February 2023 for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant a Visitor (class FA) visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision to refuse to grant a Visitor (class FA) visa is reviewable under Part 5 of the Act if it meets one of the subsections in s 338.

3. On 5 April 2023, the Tribunal wrote to the review applicant as follows:

   …

   I am of the view that your application is not a valid application because it seeks review
   of a decision that is not reviewable by the Tribunal. A valid application may only be
   made for review of a Part 5-reviewable decision, and I am of the view that the decision
   does not meet any of the circumstances in s.338 of the Migration Act 1958 (Cth) to be
   a Part 5-reviewable decision.

   A decision to refuse to grant a Subclass 600 Visitor visa in the Tourist stream may be
   a Part-5 reviewable decision under 338(2), 338(5) or 338(7) of the Migration Act,
   depending on the circumstances of the matter.

   ·It is also not a Part 5-reviewable decision under 338(2) because that requires

   that the visa application was made while the visa applicant was in the migration
   zone (s 338(2)(b)).

   ·It is not a Part 5-reviewable decision under 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).

   ·It is not a Part 5-reviewable decision under 338(7) because that requires that

   details of the relative (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.

   However, this is a matter that must be determined by a Member.

   …

4. The letter invited the review applicant to respond in writing on the question of validity by 21 April 2023.

5. On 6 April 2023, the review applicant responded by email and stated that, “[r]egarding the visa application, it should be a Part-5 reviewable decision as I, Hao Liu, invited my father in law, Jingtao Sun, to visit me in Australia.” The review applicant attached a number of documents to her email including the marriage certificate between her mother and the visa applicant. The English translation of the marriage certificate shows that the visa applicant is not the review applicant’s father-in-law, but is in fact her mother’s husband and that he and the review applicant’s mother married on 28 November 2020. The Tribunal notes that in his Visitor visa application form, the visa applicant refers to his relationship to the review applicant as “Daughter/Son-in-law” and states that the purpose of the visit is a family visit to visit his “daughter in law”.

6. On 13 June 2023, a Tribunal officer contacted the review applicant by telephone (with the assistance of an interpreter in the Mandarin and English languages) to verify the nature of the relationship between the visa applicant and the review applicant. The review applicant confirmed that the visa applicant is married to her mother and they had been married for three years. She stated that the review applicant is her “step-father” but he has never been her legal guardian. The Tribunal accepts this and finds that the visa applicant is married to the review applicant’s mother and so in that sense, he could be regarded as the review applicant’s step-father. He is not the review applicant’s father-in-law in the sense that that term is ordinarily understood.

7. The Tribunal finds that the decision to refuse the Visitor visa is not reviewable under ss 338(2) or 338(5) as it does not meet the requirements of those subsections.

8. 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).

9. Sub-section 338(7) states that a decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:

   (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

   (b)  a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and

   (c)  particulars of the relative concerned are included in the application.

10. Clause 600.221 of the Migration Regulations 1994 (Cth), which is one of the criteria that must be satisfied for a subclass 600 visa in the Tourist stream, which is the type of visa the visa applicant has applied for, provides:

    The applicant intends to visit Australia, or remain in Australia:

    (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    (b)  for any other purpose that is not related to business or medical treatment.

11. The effect of these provisions is that the application for review may only be made by an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant.

12. In this case, the review applicant is the adult daughter of the visa applicant’s wife of three years. The Tribunal has considered her response to the Tribunal’s letter but does not find to be of assistance. The Tribunal has considered whether the review applicant can be regarded as the “child” of the visa applicant, as she would not fit within any of the other stated categories of person who may make an application for review. This would involve finding that the relationship of “child” includes “step-child” for the purposes of s 338(7). While “child of a person” is defined in s 5CA, this definition does not assist in determining whether “child” includes “step-child” for the purposes of s 338(7). The Tribunal notes that Regulation 1.03 defines “step-child” in relation to a parent as meaning, in essence, a person who is not the child of the parent but who is the child of the parent’s current or former spouse or de facto partner. Regulation 1.03 also defines “relative” and “close relative”. Those definitions are not applicable in this case but they clearly distinguish between certain relationships that are characterised as being of a “step” nature and other relationships. In the Tribunal’s view, the relatives listed in sub-section 338(7)(b) are limited and specific and in all the circumstances, the Tribunal finds that “child” does not include “step-child” for the purposes of s 338(7). Therefore, the Tribunal does not accept that the review applicant in this case, as the “step-child” of the visa applicant, is the “child” of the visa applicant for the purposes of s 347(2)(c) when read with s 338(7)(b). The Tribunal notes that even if the visa applicant were the review applicant’s father-in-law (as referred to above), a daughter-in-law is also not a relative who may make an application for review in a case such as this.

13. The review applicant is not a relative referred to in the relevant provisions. 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

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

    Rachel Da Costa
    Member