Nakarajouypol (Migration)

[2023] AATA 2048

Nakarajouypol (Migration) [2023] AATA 2048 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Siriya Nakarajouypol
Miss Sirikorn Nakarajouypol

CASE NUMBER:  2306210

HOME AFFAIRS REFERENCE(S):          BCC20232213086 BCC20232213100

MEMBER:Jessica Henderson

DATE:9 June 2023

PLACE OF DECISION:  Perth

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

Statement made on 09 June 2023 at 4:28pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – outside migration zone at time of visa application – no reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 5 May 2023 for review of decisions to refuse to grant Visitor (Class FA) visas. 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.

3. According to their visa application, the visa applicants were outside Australia at the time that the visa application was made.  The stream of visa that they applied for was the tourist stream, and their reason for visiting Australia was said to be “travel with family and visit our relatives in Brisbane to get some good memories before the next university semester opens”.

4. Section 411 of the Act does not apply to the visa application.

5. Section 338 of the Act contains the definition of a Part 5-reviewable decision.  Sub-section 338(1) limits the application of the section in certain non-applicable circumstances.  Sub-sections 338(2), (3), and (3A) apply only where the application has been made within the migration zone, which does not apply.  Subsection 338(4) applies to bridging visas where a non-citizen is in detention, which does not apply.

6. Subsections 338(5)-(7) apply where a visa application cannot be granted while a non-citizen is in the migration zone.  As the visa applicant made her application whilst outside the migration zone, the visa application could only be granted whilst she was outside the migration zone.

7. Subsection 338(5) applies where a criterion of the grant of the visa is that the non-citizen is sponsored or nominated by an Australian citizen, a company operating in the migration zone, a partnership operating in the migration zone, the holder of a permanent visa, or a New Zealand citizen who holds a special category visa.  That does not apply to the visa application under review.

8. Subsection 338(6) applies where a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident.  That does not apply to the visa application under review.

9. Subsection 338(7) applies where 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 particulars of the relative concerned are included in the application.  No such particulars have been included in this application.

10. Subsection (7A) applies only where the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.  For reasons already canvassed, that does not apply to the visa application under review.

11. Subsection 8 applies where the applicant, as a requirement of the visa criteria, was sponsored or nominated by an Australian citizen/permanent visa holder, or a New Zealand citizen holding a special category visa.  That does not apply to the visa application under review.

12. Subsection 9 provides that a decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.  It has no application to this matter.

13. The circumstances of the application for a visa subclass 600 do not apply to any of the sub-categories of reviewable decision provided for in either Parts 5 or 7.  The decision is therefore not reviewable.

14. On 17 May 2023 the Tribunal wrote to the applicants setting out the preliminary view that the application is not a valid application because it seeks to review decisions that are not reviewable by the Tribunal.  In particular, the Tribunal noted that a decision to refuse to grant a Subclass 600 Visitor visa in the Tourist stream may be reviewable under ss 338(2), 338(5) or 338(7) of the Act, but that none of those applied on the facts currently before the Tribunal.  The letter invited the applicants’ comment by 31 May 2023.  No reply was received.

15. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Jessica Henderson
    Member