Sadh (Migration)

[2024] AATA 4051

Sadh (Migration) [2024] AATA 4051 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prasang Sadh

CASE NUMBER:  2422304

HOME AFFAIRS REFERENCE(S):          BCC2024/807693

MEMBER:Christine Cody

DATE:8 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 8 October 2024 at 6:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – visa applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 41, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal for review of a decision of a delegate of the Minister for Home Affairs, dated 31 May 2024, to refuse to grant a Visitor (Class FA) (tourist stream) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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. The visa applicant had lodged the visitor visa application offshore, stating that he sought to undertake tourism in Australia and “visit family/friends”. However, he then responded “no” to the question “Will the applicant visit any relatives, friends or contacts in Australia?” .

4. The delegate’s decision to refuse the visa application was notified on 31 May 2024, with a statement by the delegate that there is no right of merits review of the decision.

5. The visa applicant lodged a review application with the Tribunal on 10 July 2024. He indicated that he had not known what information to provide to the delegate, so he was now providing additional information (about his financial circumstances and incentives to return after a visit) in the hope that the visa could be granted.

6. The Tribunal has jurisdiction to review a decision under 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 not a decision to refuse to grant a Visitor (Class FA) (tourist stream) visa if:

   ·     The visa applicant was not the migration zone (s 338(2)(b)): he indicated that he was in India;

   ·     The visa applicant was not sponsored or nominated by a relevant person specified in s 338(5)(b): there was no sponsorship or nomination;

   ·     The visa applicant did not intend to visit an Australian citizen, or an Australian permanent resident (parent, spouse, de facto partner, child, brother or sister), with the particulars of the relative concerned included in the visa application (s.338(7)(b)): and there were no particulars provided of any relative that the applicant intended to visit.   

7. There was no indication that the decision was reviewable under any provision of the Act or regulations. 

8. A letter had been sent to the visa applicant/review applicant by the Tribunal registry on 31 July 2024 explaining that it appeared that the decision does not meet any of the circumstances in s.338 of the Act enabling it to be a Part 5-reviewable decision. He was requested to provide his comments in writing by 14 August 2024. No response was provided.

9. The Tribunal is not satisfied that the delegate’s decision is reviewable.

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.

    Christine Cody
    Member