Rika (Migration)

[2024] AATA 473

Rika (Migration) [2024] AATA 473 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anggelina Rika

CASE NUMBER:  2318355

HOME AFFAIRS REFERENCE(S):          BCC20236218912

MEMBER:Alison Mercer

DATE:22 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2024 at 2:59pm

CATCHWORDS

MIGRATION – Visitor visa – decision is not reviewable under Parts 5 or 7 of the Act – review application was lodged by the visa applicant herself, not the Australian relative – invalid applications – is no longer a reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 5, 65, 338, 347, 411, Schedule 2

Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 12 November 2023 for review of a decision to refuse the applicant a Class FA subclass Visitor visa in the Tourist stream. 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. Where an application for a subclass 600 visa is made outside Australia (as in this case), a decision to refuse it is reviewable under s.338(7) of Part 5 of the Act, but only where:

   ·the applicant is applying under the Tourist stream or the Sponsored Family stream; and

   ·the stated purpose of applying is to visit a relative of a kind specified in s.338(7)(b) and particulars of that relative were included in the visa application.

4. On 28 November 2023, the Tribunal wrote to the applicant to advise her that a preliminary view had been taken that her review application was not valid. The Tribunal advised the applicant that a decision to refuse a subclass 600 Visitor visa in the Tourist stream was not reviewable under Part 7 of the Act, and was only reviewable under Part 5 of the Act in certain circumstances, such as where the visa application was required to be made, and was made in Australia (s.338(2)), where the application was required to be made outside Australia and the applicant was required to be, and was, sponsored or nominated by an Australian citizen or permanent resident (s.338(5)); or where the application was required to be made outside Australia, and it was a visa requirement for the applicant to intend to visit an Australian citizen or permanent resident who was a parent, spouse, de facto partner, child or sibling of the applicant, and whose particulars had been included in the visa application.

5. The Tribunal advised the applicant that it did not appear that her visa application fell within any of the above categories, and therefore it appeared that it was not a decision that was reviewable by the Tribunal. She was invited to provide comments or a response to this view by 12 December 2023, and advised that any response received would be taken into account before a Tribunal Member made a final determination about whether her review application was valid or not.

6. The Tribunal did not receive any response from the applicant by 12 December 2023, and has received no further communication from her to date.

7. The Tribunal has reviewed the Department’s file and the material received from the applicant and others with the review application. It is satisfied that:

   ·the applicant made an application for a subclass 600 Visitor visa in the Tourist stream outside Australia on 29 October 2023, indicating that she intended to travel to Australia for tourism/to visit friends or family, and would be travelling with her mother, aunt, and cousin;

   ·she listed her contact in Australia as her sister, Winny, and listed Winny’s contact details and address;

   ·the Department refusal decision of 10 November 2023 states that the visa was refused because the delegate was not satisfied that the applicant intended to stay in Australia temporarily only, as required by cl.600.211 of Schedule 2 to the Regulations. The delegate found that the applicant had not demonstrated sufficiently strong employment, economic, family or other commitments in Indonesia that would be sufficient incentive for her to return there. The refusal letter also states that there are no review rights for this decision for the applicant; and

   ·with her review application, the applicant provided a statement indicating that she intended to travel to Australia with her mother to visit her sister, but her mother was granted a visa but the applicant was not. The applicant indicated that her mother could not travel alone and therefore the applicant wanted to be granted a visitor visa to accompany her. She also states that she will stay with and be financially supported by her sister, and has finances of her own.

8. The Tribunal finds that s.338(2) does not apply, as the applicant’s subclass 600 visa was made outside the migration zone (Australia). It further finds that it is not a mandatory requirement for a subclass 600 Visitor visa in the Tourist stream that an applicant is sponsored or nominated by an Australian citizen, permanent resident or eligible New Zealand citizen, and thus s.338(5) does not apply. Finally, the Tribunal is satisfied that although the applicant listed Winny, who is an Australian citizen and the applicant’s sister, in her visitor visa application, and indicated that she wished to visit her, which falls within s.338(7), s.347(2)(c) requires the review application to be lodged by the Australian relative (that is, by Winny). As noted above, the review application was lodged by the visa applicant herself, not Winny. The Tribunal is further satisfied that the period for lodging a valid review application expired 70 days after the applicant was notified by email on 12 November 2023 (that is, 19 January 2024).

9. Accordingly, the Tribunal finds that the decision to refuse the applicant a subclass 600 Visitor visa in the Tourism stream does not fall within any of the relevant subsections of s.338 of Part 5 of the Act. Nor, as already noted, does it fall within Part 7 of the Act, which relates to the review of decisions to review protection visas.

10. 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

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

    Alison Mercer
    Member