Nair (Migration)

[2019] AATA 3528

Nair (Migration) [2019] AATA 3528 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sudhir Nair

VISA APPLICANT:  Mrs Aruna Shastra Devi Nair

CASE NUMBER:  1903253

DIBP REFERENCE(S):  clf2007/19325

MEMBER:Wendy Banfield

DATE:11 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2019 at 9:53am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – incorrect applicant – no jurisdiction

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 22 January 2019, to refuse to grant a Aged Parent (Residence) (Class BP) visa 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 12 February 2019. 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 14 February 2019 the applicant was invited to comment on the validity of the application for review. On 27 February 2019 the applicant replied to the invitation and advised the visa applicant is his mother who has lived with him for 12 years, depends on him and requires permanent residency. The applicant acknowledged he had made a mistake in making the application for review and that the visa applicant herself should have applied.

5. 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 son of 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

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

   Wendy Banfield
   Member