Nakai Sandhu (Migration)

[2024] AATA 2255

Nakai Sandhu (Migration) [2024] AATA 2255 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmandeep Singh Nakai Sandhu

CASE NUMBER:  2405425

HOME AFFAIRS REFERENCE(S):          BCC2024/1630627

MEMBER:Jane Marquard

DATE:6 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 May 2024 at 9:13am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – decision of the Department is not a Part 5 decision – application for review was not valid – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347,411, 412, Schedule 2

Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

1. An application was made to the Administrative Appeals Tribunal (the Tribunal) on 19 March 2024 for review of a decision of the Department of Home Affairs (the Department) on 18 March 2024 to refuse an application for a Visitor (Class FA) Visitor (Tourist) (Subclass 600) 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. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions. Visitor refusal decisions are reviewable if they are a Part 5 decision under s 338 of the Act.

3. On 25 March 2024 the Tribunal wrote to the applicant to notify him that it appeared that the decision of the Department was not reviewable by the Tribunal as it was not kind of decision set out in section 338 of the Act. The applicant was invited to respond or comment by 8 April 2024. The applicant responded on 25 March 2024. He asked that he be provided with a rejection letter for the case.

4. Decisions of the Department to refuse a visa are reviewable under s 338(2), (4), (5), (6), (7) or (7A) of the Act. The Tribunal is satisfied that the decision of the Department dated 18 March 2024 is not reviewable by the Tribunal as it does not meet any of the circumstances set out in s 338(2), (4), (5), (6), (7) or (7A) of the Act, for the following reasons:

   ·It is not a Part 5 reviewable decision under s 338(2) of the Act because the visa application was not made while the visa applicant was in the migration zone. Departmental records indicate that the applicant was not in Australia on 11 March 2024 when the application was made.

   ·It is not a Part 5 reviewable decision under s 338(4) of the Act because it is not a decision to refuse a bridging visa.

   ·It is not a Part 5 reviewable decision under s 338(5) of the Act because the visa applicant was not sponsored or nominated by a relevant person specified in that section, such as an Australian citizen.

   ·It was not a Part 5 reviewable decision under s 338(6) of the Act as the visa applicant has not been an Australian permanent resident.

   ·It is not a Part 5 reviewable decision under s 338(7) of the Act as particulars were not provided in the visa application that the applicant intended to visit an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child or brother or sister of the visa applicant.

   ·It is not a Part 5 reviewable decision under s 338(7A) of the Act as it not a decision to refuse to grant the applicant a permanent visa.

5. The Tribunal is satisfied therefore that the decision of the Department is not a Part 5 decision. As the Department’s decision is not reviewable under Parts 5 or 7 of the Act (which relates to protection visas), it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Jane Marquard
   Member