1512116 (Migration) - [2016] AATA 3564

1512116 (Migration) [2016] AATA 3564 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Pratika Gautam
Mr Hemanta Poudel
CASE NUMBER:  1512116
DIBP REFERENCE(S):  BCC2015/812191
MEMBER:Lisa Lo Piccolo
DATE:24 March 2016
PLACE OF DECISION:  Melbourne
DECISION:In relation to the first named applicant, the Tribunal does not have jurisdiction in this matter.
In relation to the second named applicant, the Tribunal affirms the decision not to grant him a Temporary Graduate (Post Study Work) (Class VC) visa.

Statement made on 24 March 2016 at 4:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

An application was made to the Tribunal on 3 September 2015 for review of a decision to refuse to grant Temporary Graduate (Post Study Work) (Class VC) visa.

Pratika Gautam – First Named Applicant

For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
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, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.
On 27 October 2015 the Tribunal wrote to the first named applicant advising that it was of the view that the application is not a valid application, as there does not appear to be a decision to refuse the first named applicant the grant of a subclass 485 visa. The first named applicant was invited to make comments in writing by 10 November 2015 on whether a valid application has been made. The Tribunal did not receive a response from the first named applicant.
As no reviewable decision had been made with respect to the first named applicant at the time the review application was lodged, it follows that the application in so far as it relates to the first named applicant, was not properly made and the Tribunal does not have jurisdiction in relation to the first named applicant.

Hemanta Poudel – Second Named Applicant

The delegate refused the second named applicant’s visa because the second named applicant did not satisfy cl.485.311 of Schedule 2 to the Regulations because the delegate was not satisfied that he met the requirements for the grant of the visa.
The Tribunal has before it the departmental file[1] relating to the second named applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
[1] D1 - Departmental file BCC2015/812191, folio numbered 1-65.
By letter dated 4 March 2016[2]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3564
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the case of 1512116 (Migration) [2016] AATA 3564, the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision of the Department of Immigration and Border Protection (DIBP) to refuse the grant of a Temporary Graduate (Post Study Work) (Class VC) visa to Hemanta Poudel. The first applicant, Pratika Gautam, was found to have no jurisdiction as no reviewable decision had been made at the time the review application was lodged. The tribunal did not receive a response from the first applicant after advising that the application was not valid. Consequently, the tribunal affirmed that it did not have jurisdiction over the first applicant.

The legal issues in this case revolved around the jurisdiction of the tribunal to review the decision made by the DIBP and whether the second applicant, Hemanta Poudel, met the criteria for the grant of a subclass 485 visa. The tribunal had to determine if it was appropriate to exercise its discretion under section 362B of the Migration Act 1958 to reschedule the hearing or delay its decision to enable the second applicant's appearance.

The tribunal reasoned that it had no statutory obligation to seek to contact the applicant to enquire about the reason for non-attendance, and it was under no obligation to telephone the applicant to check their whereabouts if they failed to attend a scheduled hearing. The tribunal concluded that it was reasonable to make its decision without taking further action to enable the second applicant to appear before it, considering the circumstances of the case and the fact that the hearing invitation was sent approximately three weeks before the scheduled hearing.

The tribunal found that the second applicant did not meet the criteria for the grant of a subclass 485 visa because there was no evidence that the first applicant held or had ever held a subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Consequently, the tribunal affirmed the decision not to grant the second applicant a Temporary Graduate (Post Study Work) (Class VC) visa.

Orders