2102872 (Migration)

[2021] AATA 1796

2102872 (Migration) [2021] AATA 1796 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102872

MEMBER:Justine Clarke

DATE:5 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 05 May 2021 at 10:49am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – immigration clearance – in the community as an unlawful non-citizen – no reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 8 March 2021, the applicant applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration made on 17 February 2021 to refuse to grant the applicant a Bridging E visa.  

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. 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.

4. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the types of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, including the refusal of a Bridging E visa under s.338(2) or (4). However, to be reviewable under s.338(2), it is a requirement that the decision was not made when the non-citizen was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared (s.338(2)(c)). To be reviewable under s 338(4), the applicant must be in immigration detention because of that refusal. Section 338(9) provides that decisions listed in reg 4.02(4) are Part 5-reviewable decisions.

5. On 23 April 2021, the Tribunal wrote to the Department requesting information about whether the applicant had been immigration cleared.

6. On 4 May 2021, the Department responded to the Tribunal’s request for information, advising the following:

   [The applicant] … was not immigration cleared [either on entry, or subsequently upon the grant of a substantive visa], and is currently in the community as an unlawful non-citizen.[1]

   [1]        The applicant’s date of birth is omitted in these reasons.

7. As the applicant has not been immigration cleared, the requirement in s.338(2)(c) is not met. Accordingly, the decision is not a reviewable decision under s 338(2).

8. As the applicant is not in immigration detention, the requirement in s.338(4) is not met and the decision is not a reviewable decision under s 338(4).

9. None of the types of decisions listed in r.4.02(4) apply to the applicant’s situation.

10. On 23 March 2021, the Tribunal wrote to the applicant, by way of his representative, inviting him to comment on the validity of the review. The letter explained:

    You were refused immigration clearance and/or had not been subsequently immigration cleared at the time the decision to refuse the visa was made. As this decision is not reviewable under Part 5 of the Migration Act 1958, I am therefore of the view that your application is not a valid application as this [is] not a decision which can be reviewed by us.

    The letter required any comments to be provided in writing by 6 April 2021.

11. To date, the Tribunal has not received a response.

12. 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

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

    Justine Clarke
    Member