Shankar (Migration)

[2022] AATA 1910

Shankar (Migration) [2022] AATA 1910 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Anil Kumar Shankar

CASE NUMBER:  2119725

HOME AFFAIRS REFERENCE(S):          BCC2020/2412458 PNJ

MEMBER:Wendy Banfield

DATE:26 April 2022

PLACE OF DECISION:  Canberra

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

Statement made on 26 April 2022 at 3:59pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – application for review could only be made by the non-citizen who is the subject of the decision – no standing – invalid application –no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 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 Home Affairs, dated 17 December 2021, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 22 December 2021. 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(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s 347(2)(a) and (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

4. On 28 March 2022 the Tribunal wrote to the applicant inviting comment on the validity of the application for review. The Tribunal advised that the person who is entitled to apply for a review in relation to the decision is a parent / spouse / de facto partner / child / brother / sister of the visa applicant and he is not such a person. The applicant was invited to respond by 11 April 2022 however, no response was received.

5. As the decision that is the subject of the review application is a decision covered by s 338(2), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was made by 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.

   DECISION

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

   Wendy Banfield
   Member