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1001207 [2010] MRTA  1676  (26 July 2010)

Last Updated: 5 August 2010

1001207  [2010] MRTA 1676  (26 July 2010)

DECISION RECORD

APPLICANTS: Mr Lakdasa Senarath Perera
Mrs Carmen Jacintha Perera
Mrs Kumudu Amalie Fernando
Mr Warnakulasooriya Sebastian Lalin Mahesh Fernando
Miss Warnakulasooriya Alma Denethi Amasha Fernando
Master Warnakulasooriya Joel Suren Dhinal Fernando
Master Warnakulasooriya Jerem Rian Dhiun Fernando

MRT CASE NUMBER: 1001207

DIAC REFERENCES: 88416, 88417, 88418, 88419

TRIBUNAL MEMBER: Wendy Boddison

DATE: 26 July 2010

PLACE OF DECISION: Melbourne

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Tourist (Class TR) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants applied to the Department of Immigration and Citizenship for Tourist (Class TR) visas on 18 November 2009 The delegate decided to refuse to grant the visas on 1 December 2009 and notified the applicants of the decisions and their review rights by letter dated 1 December 2009 and posted on 1 December 2009.
3. The applicants applied to the Tribunal on 22 February 2010 for review of the delegate’s decisions.
4. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 22 February 2010 is an application properly made under s.347 of the Act for review of the delegate’s decisions.
5. The Tribunal formed the preliminary view that it did not have jurisdiction in relation to the decisions for the second to seventh above named applicants as they were non reviewable decisions under s.338(7)(b) of the Act. In addition, the Tribunal formed the preliminary view that although the decision in relation to the first named applicant was reviewable, he had no standing to apply for review under s.347(2)(c) of the Act.

RELEVANT LAW

6. The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Tourist (Class TR) visa under s.65 of the Act is covered by s.338(7).
7. Section 347 sets out the requirements for an application for review. Section 347(1)(a) requires an application to be made in the approved form and s.347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and start when the applicant is notified of the decision in accordance with the legislation in force at the relevant time.
8. Section 347(2) sets out who has the right to apply for review of an MRT-reviewable decision. In the case of a decision covered by s.338(7), an application for review may only be made by an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant and whose particulars are included in the visa application: s.347(2)(c).

FINDINGS AND REASONS

9. The Tribunal has before it the Department’s files and the Tribunal file relating to the applicants.
10. The applicants applied for class TR visas. This class contains one subclass; subclass 676 (Tourist) visa.
11. It is a criterion for the grant of a Subclass 676 visa that an applicant meet the requirements of cl 676.212 which states:

The applicant seeks to visit Australia, or remain in Australia as a visitor:
(a) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or
(b) for a purpose other than a purpose related to business or medical treatment.

12. In Mrs Kumudu Amali Fernando’s visa application form she indicated that she intended to visit, Ms Sendipathy her aunt and Mr J Fernado her brother-in-law. Three of her children were included in her visa application namely; W Alma Denethi Amasha, W. Joel Suren Dhinal and W Jerem Rian Dhiun. Ms Sendipathy would have been the children’s great aunt and Mr J Fernado their uncle.
13. Mr W Sebastian Laleen Mahesh Fernando indicated in his visa application form that he intended to visit, Ms Sendipathy his wife’s aunt and Mr J Fernado his brother.
14. In Mr Laksadas Senarath Perera’s visa application form he indicated that he intended to visit, his sister Ms Sendipathy.
15. Mrs Carmen Jacintha Perera indicated in her visa application form that she intended to visit, Ms Sendipathy who was her sister-in-law.
16. Section 338(7) provides that a decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and
(c) particulars of the relative concerned are included in the application.

17. All the applicants’ visa applications meet the requirements of s338(7)(a) and (b). However only Mr W Sebastian Laleen Mahesh Fernando who intended to visit his sister and Mr Laksadas Senarath Perera who intended to visit his brother meet the requirements of 338(7)(c).
18. Thus only the decisions to refuse Mr Laksadas Senarath Perera and Mr W Sebastian Laleen Mahesh Fernando visas are MRT reviewable decisions under s338 of the Act.
19. The decisions to refuse Mrs Kumudu Amali Fernando and her children W Alma Denethi Amasha, W. Joel Suren Dhinal and W Jerem Rian Dhiun visas are not MRT-reviewable decisions . The decision to refuse Mrs Carmen Jacintha Perera a visa is also not an MRT-reviewable decision. This is because the relatives mentioned in their visa applications are not their parent, spouse, de facto partner, child, brother or sister. There is no valid application for review in relation to these visa applicants.
20. Section 347(2) set out who has the right to apply for review of an MRT-reviewable decision and provides that if the MRT-reviewable decision is covered by subsection 338(6) or (7) - the relative referred to in visa applications has the right to apply for review. In this case Ms Sendipathy has the right to seek review of the refusal of Mr Laksadas Senarath Perera’s visa application and Mr Mr J Fernado has the right to seek review of the refusal of Mr W Sebastian Laleen Mahesh Fernando’s visa.
21. Mr Fernando has not applied for review of the decision and therefore there is no valid application for review before the Tribunal in relation to Mr W Sebastian Laleen Mahesh Fernando.
22. The review application form lodged with the Tribunal listed the visa applicants as review applicants. Ms Sendipathy was listed as visa applicant and the form was signed by Mr Lakdasa Senarath Perera and not by Ms Sendipathy.
23. A Tribunal officer contacted Ms Sendipathy on 22 February 2010 and informed her that she had completed the form incorrectly and invited her to lodge a new review application form. She was advised of the jurisdictional problems in relation to six of the visa applicants. She stated that if the family could not travel together she did not want to go ahead with the application.
24. On 24 February 2010 the Tribunal wrote to all applicants inviting their comments in relation to the jurisdictional issues outlined above. They were advised that that had until 2 March 2010 to lodge an amended review application.
25. Ms Sendipathy responded on 2 March 2010 and stated that after going through all the information contained in the Tribunal’s letter dated 24 February 2010, she decided not to amend the review application form.
26. The Tribunal finds that as Ms Sendipathy did not apply for review of the decision to refuse Mr Laksadas Senarath Perera’s visa application there is no application properly made under s.347 for review of an MRT-reviewable decision as required by s.348.
27. As there is no valid application for review before the Tribunal, it does not have jurisdiction in this matter.

DECISION

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

Wendy Boddison

Member