Qian (Migration)

[2019] AATA 2932

Qian (Migration) [2019] AATA 2932 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Li Qian

VISA APPLICANT:  Ms Siyu Xian

CASE NUMBER:  1906810

DIBP REFERENCE(S):  PNJ

MEMBER:Linda Symons

DATE:4 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2019 at 3:04pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – standing to apply for review – relative of visa applicant – mother – step-father – Australian citizen or Australian permanent resident – holder of Bridging visa – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347

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 13 March 2019, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 22 March 2019. 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 subsection s.347(2)(c) of the Act which states that the relative must be an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen and particulars of this relative must be included in the visa application. 

4. In this case, the application for review was made by the visa applicant’s mother who is not an Australian citizen or an Australian permanent resident. She is currently in Australia on a Bridging visa awaiting the outcome of an application for a combined UK 820/ BS 801 Partner visa. As she is not an Australian citizen or an Australian permanent resident, she does not meet the criteria for a ‘relative’ in s.338(7) of the Act.

5. The Tribunal wrote to the review applicant on 1 April 2019 and invited her to comment on the validity of her application for review in writing by 15 May 2019. This letter was sent to her migration agent by email on 1 April 2019. The Tribunal received a response from her migration agent on 15 April 2019 stating that the review applicant lodged the application for review ‘based on her understanding that her husband, Mr Roy Joe RASO, is an Australian citizen and he is the visa applicant’s step-father’. Step parents do not satisfy the criteria for a ‘relative’ in s.338(7) of the Act and Mr Raso does not have standing to make an application for review in this case.

6. As the decision that is the subject of the review application is a decision covered by s.338(7) of the Act, the application for review could only be made by a relative referred to in that subsection. In the present case, the review application was made by the visa applicant’s mother who is not an Australian citizen or an Australian permanent resident. As such, the application for review is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Linda Symons
   Member