Nash (Migration)

[2024] AATA 3568

Nash (Migration) [2024] AATA 3568 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael Richard Nash
Mrs Jennifer Anne Nash

CASE NUMBER:  2430811

HOME AFFAIRS REFERENCE(S):          BCC2024/3472586

MEMBER:Frances Simmons

DATE:17 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2024 at 5:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – review application made by visa applicants, not specified citizen or permanent resident relative – applications for review in tourist stream cannot be combined – further visa applications made and visas granted – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(7), 347(2)(c)
Migration Regulations 1994 (Cth), r 4.12

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 Home Affairs, dated 29 August 2024, to refuse to grant Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7) of the Act.

2. The review application was lodged with the Tribunal on 29 August 2024. 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. On 4 September 2024, the Tribunal wrote to the applicants to notify them it appeared that the application for review was not valid because the person who was entitled to make an application for review was a specified relative, namely a parent / spouse / de facto partner / child / brother / sister of the visa applicant(s) who was an Australian citizen or permanent resident and whose particulars were included in the visa application.

5. The first named applicant responded on 4 September 2024. This response indicated that the applicants lodged new applications for Visitor (Class FA) visas offshore. The material before the Tribunal indicates that these visas have been granted.  

6. 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 has been made by two visa applicants.

7. Furthermore, regulation 4.12 of the Migration Regulations 1994 (Cth) (the Regulations determines when applications can be combined in a Tribunal review, and specifies only sponsored visitor visa applications can be combined in a review. As these are Visitor visa applications made under the Tourist stream, the refusal decisions cannot be combined.

8. In the present case, the review application was not made by a relative referred to s 347(2)(c) of the Act. 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

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

   Frances Simmons
   Member