Valenzuela Gonzalez (Migration)

[2023] AATA 4111

Valenzuela Gonzalez (Migration) [2023] AATA 4111 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ana Elizabeth Valenzuela Gonzalez

CASE NUMBER:  2316025

HOME AFFAIRS REFERENCE(S):          BCC20235122530

MEMBER:Nora Lamont

DATE:27 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2023 at 3:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – not in migration zone when application made, not sponsored by relevant relative and relatives intended to be visited not included in application – no substantive response to invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 347, 338(2)(b), (5)(b),
Migration Regulations 1994 (Cth), r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 October 2023 for review of a Subclass 600 Tourist visa. 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. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that the applicant for review is the visa applicant, she is offshore and her listed relatives she wishes to visit are not a brother, sister, spouse, defacto partner or child nor are they permanent residents or citizens.

3. Therefore, it is not a Part 5-reviewable decision under 338(2) because that requires that the visa application was made while the visa applicant was in the migration zone (s 338(2)(b)). It is not a Part 5-reviewable decision under 338(5) because the visa applicant was not sponsored or nominated by the relevant person specified in s338(5)(b) (e.g., an Australian citizen). It is not a Part 5-reviewable decision under 338(7) because that requires that details of the relative (i.e., the Australian citizen or permanent resident the visa applicant intends to visit, who is a brother, sister, parent, spouse, defacto partner or child of the visa applicant) are included in the visa application.

4. The applicant responded to the invitation to comment and asked what the next steps would be and how long the process would take.

5. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Nora Lamont
   Member