Tukala (Migration)

[2020] AATA 4490

Tukala (Migration) [2020] AATA 4490 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jean Pierre Tukala Tukala

VISA APPLICANT:  Mr Joshua Buma Tukala Tukala

CASE NUMBER:  2007368

MEMBER:Meena Sripathy

DATE:3 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 September 2020 at 10:25am

CATCHWORDS
MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – prescribed fee – non-payment of fee – fee reduction application – standing to apply for review – sponsor of the visa holding parent – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994 (Cth), r 4.13; Schedule 2, cl 445.211

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 12 February 2020, to refuse to grant a Extended Eligibility (Temporary) (Class TK) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(5) of the Act.

2. The review application was lodged with the Tribunal on 21 April 2020. 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(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b). Section 347(1)(c) also requires that the application be accompanied by the prescribed fee (if any) unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship.

4. The Tribunal wrote to the applicant on 27 April 2020 and again on 18 August 2020 to invite comments or response to issues affecting the validity of the review application.  In the first letter the issue was that the fee was not paid within the prescribed period.  The second letter raised the issue that the correct person entitled to apply for review of this decision is the sponsor of the visa holding parent who is the sponsor in the visa application and that the applicant is not that person.

5. The applicant responded to each of the Tribunal’s invitations. On 11 May 2020 an explanation that the applicant had lodged a fee reduction request with his application on 20 April 2020 and attempted to pay the 50% of the fee on 22 April 2020 but encountered issues with the Tribunal’s network on that date.  A completed fee reduction request and authorisation for payment of 50% of the applicant’s fee was included with this response. On 24 August 2020 the applicant responded to the standing issue, submitting that he was the visa applicant’s sponsor for the Extended Eligibility (Temporary) (Class TK) visa application and therefore he is the person entitled to apply for review of the decision and the review application should be considered as valid.

6. The Tribunal has carefully considered the applicant’s responses to the invitations to comment letters and issues relating to validity of the review application and the evidence and information before it. 

7. On the basis of information in the delegate’s decision record and confirmed in Departmental ISCE records, the visa applicant was sponsored for the  Extended Eligibility (Temporary) (Class TK) visa application made on 3 July 2017 by Ms Veronique Vela who was the sponsor of the visa holding parent of the visa applicant.  Jean Pierre Tukala Tukala is indicated in the visa application as the visa holding parent of the visa applicant. 

8. The Tribunal notes that the above information is contrary to the applicant’s assertion that he was the sponsor of the visa application.  However cl.445.211(b) specifically requires the visa applicant to be sponsored by the nominator or sponsor of the visa holding parent which would appear to be consistent with the information held by the Department that Ms Vela was the sponsor.

9. As the decision that is the subject of the review application is a decision covered by s.338(5), the application for review could only be made by the sponsor referred to in that subsection. This review application was made by Jean Pierre Tukala Tukala who was the visa holding parent of the visa 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.

10. Given this finding, it is unnecessary to consider any further the issue of whether the fee requirement was met for the purposes of the jurisdiction issue.

    DECISION

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

    Meena Sripathy
    Member