Nguyen (Migration)

[2018] AATA 277

Nguyen (Migration) [2018] AATA 277 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi My Hanh Nguyen

VISA APPLICANT:  Ms Thi Diem Chau Tran

CASE NUMBER:  1713794

DIBP REFERENCE(S):  BCC2017/2030598

MEMBER:Adrienne Millbank

DATE:12 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 12 February 2018 at 8:45am

CATCHWORDS

Migration – Visitor (Class FA) – Subclass 600 – Review applicant – Cousin – No eligible sponsor – Not a ‘close relative’

LEGISLATION
Migration Act 1958, ss 65, 338, 347

Migration Regulations 1994, rr 1.02, 1.03, 1.12 Schedule 2 cl 600.232

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 26 June 2017, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The Delegate refused to grant the visa because the applicant did not meet s.600.232 of the Act. The sponsor is the cousin of the applicant, not a relative as defined in Regulation 1.03 and Regulation 1.12 (see below). Because the applicant is not a ‘relative’, ‘close relative’, or ‘member of the family unit’ of the sponsor as defined in these Regulations, the Delegate found that the applicant had not demonstrated that she has an eligible sponsor, and therefore did not meet the requirements of subclause 600.232.

3. The review application was lodged with the Tribunal on 28 June 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.

4. 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).

5. Subsection 338(7)(b) of the Act states that a decision to refuse to grant a non-citizen a visa is reviewable if 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. Subsection 338(7)(c) requires that the particulars of the relative that the applicant intends to visit are included in the visa application.  The visa applicant did not include in her application the particulars of an Australian citizen/permanent resident parent, spouse, de facto partner, child, brother or sister of the visa applicant.

6. Subsection 338(5)(b) of the Act requires the non-citizen to be sponsored by an Australian citizen or permanent resident in accordance with the visa criteria. As noted above, the criteria for the grant of the visa require the applicant to be sponsored by a relative or close relative.  ‘Close relative’ as defined in r.1.12 means a spouse or de facto partner of the person; or a child, parent, brother or sister of the person; or a step-child, step-brother or step-sister of the person. ‘Relative’ as defined in r. 1.03 means a ‘close relative’; or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle; step-niece, or step-nephew.

7. The review applicant attended a Tribunal hearing on 6 February 2018. The Tribunal also received evidence from the review applicant’s husband, as a sworn witness. The review applicant was assisted by a Vietnamese interpreter. At the hearing the Tribunal explained the jurisdictional issue to the review applicant and invited her to make any comment or submission regarding this issue. The Tribunal advised the review applicant that she could seek an adjournment to consider her response. The review applicant did not seek an adjournment.

8. The review applicant confirmed that the visa applicant is her actual cousin, the daughter of her aunt. She claimed that she knew of a number of cases where a person’s cousin or friend in Vietnam had been sponsored to visit Australia. She advised that previous applications by her cousin had been refused on the grounds that the Delegate was not satisfied that she intended to stay temporarily. The review applicant’s husband stated that the parties were prepared to provide a security bond. He further stated that in the covering letter attached to the record of decision, the Department had advised that the decision to refuse the visa could be reviewed.

9. The Tribunal acknowledges that the Departmental letter contained advice that the decision could be reviewed. However, as the decision that is the subject of the review application is a decision covered by s.338(7), the Tribunal finds that 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 a cousin of the 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.

10. Even if the Tribunal found it had jurisdiction, it would find that the visa applicant would not meet cl.600.232(2).

    DECISION

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

    Adrienne Millbank
    Member