Wang (Migration)

[2024] AATA 722

Wang (Migration) [2024] AATA 722 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiaojiao Wang

CASE NUMBER:  2321074

HOME AFFAIRS REFERENCE(S):          BCC20237124133

MEMBER:Mary Sheargold

DATE:9 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2024 at 1:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – application for review was not valid – did not meet the criteria for a Part-5 reviewable decision – applicant has nominated her intention to visit a close friend – has not nominated a sponsor – no right of merits review for this decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347, 412, 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 22 December 2023 for review a decision to refuse to grant the applicant a Subclass 600 visitor 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 and the circumstances in which they are reviewable.

3. A decision to refuse to grant a visitor visa is reviewable under section 338(7)(b) of the Act if the application for the Subclass 600 visa was made in the Tourist stream and is for the purpose of visiting an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the applicant.  In this case, the applicant has nominated her intention to visit a close friend.  Therefore, it appears the applicant does not meet the requirement in s. 338(7)(b).

4. On 10 January 2024, the Tribunal wrote to the applicant inviting her to comment on the validity of her application for review, noting that it appeared she did not meet the criteria for a Part-5 reviewable decision under s. 338(7) of the Act.  She was invited to make written comments in response by 24 January 2024.

5. On 23 January 2024, the applicant wrote to the Tribunal stating that she and her de facto partner intended to travel to Australia to visit their “super close friend,” Mr Tsung Peter Shan Ho, and that on her interpretation of s. 338(7)(b), any Australian citizen or Australian permanent resident should suffice.  Unfortunately, the applicant appears to have misconstrued the construction of the commas that are placed on either side of the words ‘or an Australian permanent resident’ in s. 338(7)(b) so as to indicate Australian permanent residents who are parents, spouses, etc. of the applicant are the types of person the applicant intends to visit.  It is plain that s 338(7)(b) severely curtails the scope of family members intended to be visited in order to effect review rights for an applicant refused a Visitor visa. 

6. The Tribunal notes the applicant has applied for her Subclass 600 Visitor visa in the Tourist stream while outside the migration zone.  She has not nominated a sponsor, nor has she nominated her intent to visit a person of the kind set out in s. 338(7)(b) of the Act.  Therefore, it follows that in his particular circumstances, the delegate’s decision is not reviewable.

7. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Mary Sheargold
   Member