Wiriyapak (Migration)

[2017] AATA 1769

Wiriyapak (Migration) [2017] AATA 1769 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Pichai Wiriyapak

VISA APPLICANT:  Miss Punyanuch Sutapuchakul

CASE NUMBER:  1720497

DIBP REFERENCE(S):  CLF2013/199910

MEMBER:Helena Claringbold

DATE:10 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2017 at 9:48am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – No jurisdiction – Incorrect applicant

LEGISLATION

Migration Act 1958, ss 5(1), 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 Immigration, dated 30 August 2017, to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 4 September 2017. 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 6 September 2017, the Tribunal wrote to the review applicant’s migration agent. He was informed that the application for review had been made by Mr Pichai Wiriyapak, the sponsor.  He was also informed that the person who is entitled to apply for review in this matter is the visa applicant, Miss Sutapuchakul and that she is an eligible person whose particulars were included in the visa application.  He was invited to provide to the Tribunal a new application form with Miss Sutapuchakul as the review applicant.

5. On 7 September 2017, the review applicant’s migration agent advised the Tribunal that he accepted that the review application is likely invalid. On 7 September 2017, the review applicant’s migration agent wrote to the Tribunal and stated “We accept that we cannot make a valid application to the AAT in this case”. On 21 September 2017, the Tribunal wrote to the review applicant via her migration agent.  An invitation for comment on the validity of the review application was provided with comment to be with the Tribunal by   5 October 2017. 

6. On 23 September 2017, the review applicant’s migration agent wrote to the Tribunal and stated that “We accept that the AAT must decline jurisdiction and request that the application charge be refunded”. On 26 September 2017, the review applicant’s migration agent provided the Tribunal with a copy of a document addressed to the Permanent Partner Processing Centre, Victoria.  The information in the document supports the parties’ partner relationship.

7. 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 visa decision. In the present case, the review application was made by Mr Wiriyapak, the sponsor. 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

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

   Helena Claringbold
   Member