Nguyen (Migration)

[2024] AATA 2804

Nguyen (Migration) [2024] AATA 2804 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Oanh Thi Nguyen

VISA APPLICANT:  Mr Van Long Nguyen

REPRESENTATIVE:  Mr Quan Sy Do (MARN: 1577384)

CASE NUMBER:  2401356

HOME AFFAIRS REFERENCE(S):          BCC2023/6168303

MEMBER:Linda Holub

DATE:24 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2024 at 10:48am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no reviewable decision – No jurisdiction

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    An application was made to the Tribunal on 29 January 2024 for review of a Visitor visa (subclass FA600) 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 but the evidence before the Tribunal is that there was no right of review.

3.    The Tribunal first wrote to applicant on 24 May 2024 advising that it appeared a valid application had not been made. The letter stated that the decision is not a decision that can be reviewed by the Tribunal. The applicant was provided until 7 June 2024 to respond. They did so, in a detailed submission on 7 June 2024.

4.    The Tribunal sent a second natural justice letter on 7 June 2024 advising that it appeared a valid application had not been made. The letter stated that the decision is not one that can be reviewed by the Tribunal and went on to explain that the application appears not to be valid because the decision made by the Department of Home Affairs states there is no right of merits review for this decision. The letter refers to the fact that it would appear the particulars of the relevant Australian relative are not included in the visa application. The applicant was provided until 11 July 2024 to respond.

5.    The applicant’s 28 June 2024 response states that they continue to rely on submissions made on 6 June 2024. It also states that should the Tribunal reject that contention; the applicant concedes that particulars pertaining to her are not included in the visa application pursuant to s 338 (7) (c) of the Act.

6.    The 6 June 2024 submission states that the applicant accepts that her personal particulars were largely not included in the visa application and therefore may not meet the requirement set out in subsection 338 (7) (c) of the Act and went to explain that it resulted from a regrettable clerical/administration error. The submission went on to explain further.

7.    As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

DECISION

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

Linda Holub
Member