MUNGAI (Migration)

[2018] AATA 1361

MUNGAI (Migration) [2018] AATA 1361 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs TABITHA NJERI NDERITU MUNGAI

VISA APPLICANT:  Miss DORCAS WAMBUI MUNGAI

CASE NUMBER:  1724336

DIBP REFERENCE(S):  BCC2017/3254652

MEMBER:Tania Flood

DATE:3 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2018 at 11:33am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Not entitled to apply for review – Review applicant’s relationship with visa applicant

LEGISLATION
Migration Act 1958, s 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 27 September 2017, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 7 October 2017. 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. Upon receipt of the Department’s file on 5 March 2018 it became apparent to the Tribunal that the review applicant is the visa applicant’s sister-in-law.  On 26 March 2018 the Tribunal wrote to Mrs Mungai advising that the person who is entitled to apply for a review in relation to the decision of 27 September 2017 is a parent/spouse/de facto partner/child/brother/sister of the visa applicant who is an Australian citizen or permanent resident and whose particulars were included in the visa application.  Mrs Mungai was invited to make any comments on whether a valid application has been made to the Tribunal in writing by 9 April 2018. 

5. On 27 March 2018 Mrs Mungai replied that she applied for the review because she is the person who sent the invitation letter to Miss Mungai on behalf of her family.  She said she made the invitation to her sister-in-law with the full consent of her husband.  She said that if her inclusion as the review applicant had been raised earlier they would not have appealed the matter and instead would have reapplied for the visa.

6. Notwithstanding that the Tribunal has some sympathy with Mrs Mungai’s response, 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 Mrs Mungai who is the visa applicant’s sister-in-law. 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.

   Tania Flood
   Member