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Hatfield (Migration) [2019] AATA  2304  (15 April 2019)

Last Updated: 31 July 2019

Hatfield (Migration)  [2019] AATA 2304  (15 April 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Dr Angela Jean Hatfield

VISA APPLICANT: Mr Mustapha El Mourtazak

CASE NUMBER: 1905629

DIBP REFERENCE(S): BCC2019/1026813

MEMBER: Luke Hardy

DATE: 15 April 2019

PLACE OF DECISION: Sydney

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

Statement made on 15 April 2019 at 3:21pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 Visitor (Business) – Sponsored Family Stream – no standing to apply for review – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 29, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2, r 4.02

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 10 March 2019 for review of a 6 March 2019 decision by a delegate of the Minister to refuse the visa applicant a Subclass 600 Visitor visa. The decision was refused for failing to meet clause 600.211: “comply with conditions”. 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 (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. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 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.
3. In this case, an application was made by Mr Mustapha El Mourtazak for a Subclass 600 Visitor (Business) visa. Whereas a covering letter from the Minister’s delegate said that the decision was reviewable, that observation, provided outside of the primary decision, is incorrect. The right to seek review of the refusal of a visitor visa application is, in fact, limited, primarily to cases where the applicant is seeking a visa under the Sponsored Family Stream. This visa application, being an application in the Business stream, is non-reviewable.
4. The applicant’s contact in Australia, identified above as the review applicant, has written an explanatory statement, logged by the Tribunal on 10 March 2019.
5. An officer of the Tribunal wrote to the review applicant on 19 March 2019, advising as follows:

... I am of the view that your application is not a valid application as a decision to refuse a Subclass 600 visa in the Business stream is not a decision that can be reviewed by us. However, this is a matter which must be determined by a Member.
In the event that a Member determines that your decision is reviewable, I am of the opinion that your application is still not valid as you do not have standing to apply for review. The person who is entitled to apply to us in relation to a Subclass 600 decision is the sponsor or nominator OR a parent / spouse / de facto partner / child / brother / sister of the visa applicant who is an Australian citizen or permanent resident and whose particulars were included in the visa application. You are not such a person, and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member ...

6. The Tribunal gave the review applicant until 2 April 2019 to comment but has received no reply.
7. On the evidence before me I find that the decision made on 6 March 2019 is not reviewable by the Tribunal. 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

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

Luke Hardy
Member