Cho & Ors v Minister for Immigration & Anor

[2007] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHO & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 213

MIGRATION – Application to review decision of Migration Review Tribunal in relation to application for substantive visa – whether Tribunal bound to consider circumstances in relation to class of bridging visa held by applicants – whether any reviewable decision of a delegate of the first respondent.

Migration Act 1958, ss.338, 348, 359A, 362, 476
Migration Litigation Reform Act 2005

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47

Applicants: EUN MYONG CHO & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG2788 of 2005

Judgment of: Barnes FM

Hearing dates: 11 October & 24 November 2006

Delivered at: Sydney

Delivered on: 7 March 2007

REPRESENTATION

Counsel for the Applicant: Mr J. Patel

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2788 of 2005

EUN MYONG CHO & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal made on 5 September 2005 affirming a decision of a delegate of the first respondent that the applicants were not entitled to the grant of Educational (Temporary) (Class TH) visas.

2. In addition the applicants seek review of a decision of a delegate of the first respondent granting each of the applicants a Bridging E visa on the basis that the applicants were each entitled to a Bridging A visa. 

3. The background to these proceedings is that the first applicant and her two children (the second and third applicants) entered Australia in July 2000 as the holders of Subclass 457 Business (Long Stay) visas valid until 27 June 2002.  On 27 March 2002 the applicants were granted further subclass 457 visas valid until 27 September 2003.  On 2 May 2002 the applicants applied for Educational (Temporary) (Class TH) visas.  The application for Class TH visas was refused on 12 April 2003 by a delegate of the first respondent.  On 14 January 2004 the applicants sought review by the Migration Review Tribunal (the Tribunal) of the delegate’s decision in relation to the educational visas. 

4. In her application to the Tribunal Mrs Cho, the first applicant (referred to hereafter for convenience as the applicant) claimed that she had notified the Department of Immigration of a change of address in December 2002 and had requested that correspondence be sent to the new address.  However, although the decision of a delegate of the first respondent to reject her Educational visa application was dated

   
   

   12 April 2003 she did not get a copy of the decision until 12 January 2004 (as it had been sent to the wrong address).  An accompanying letter from her solicitors explained that when the applicant had approached the Department in mid-December 2003 to apply for a bridging visa to visit Korea she was informed that her application for a 457 (sic) visa had been rejected.  Mrs Cho’s instructions were she had not received the letter of rejection from the Department despite having informed it of her new address. 

5. In subsequent correspondence between the Tribunal and the Department it was clarified that in December 2003 Mrs Cho had been told by the Department that her Subclass 442 visa application had already been dealt with and was then handed a copy of that decision.  She was told that she needed to apply for a bridging visa as her last visa had expired.  A Bridging E visa was granted to the applicant on

   
   

   22 December 2003.  There is, as discussed further below, no evidence before the Court of any formal application by Mrs Cho for a bridging visa in December 2003.  On 12 January 2004 the applicant applied for and was granted a further Bridging E visa on the basis that she was making arrangements to depart Australia.  On 19 January 2004 the visa applicants were granted further Bridging E visas, apparently on the basis of the applications for review by the Tribunal of the decision in relation to the Subclass 442 Educational visas. 

6. By letter of 1 April 2004 from the Department to the Tribunal it was advised that Mrs Cho had visited the Department’s Parramatta Business Centre on 19 December 2003 and had been advised by counter staff to apply for a Bridging E visa, that on the same day she contacted the Department by phone and was advised that the April 2003 decision in relation to the Subclass 442 visa had been sent to the address of her authorised recipient.  The Department requested the original file.  Mrs Cho visited the Department again on 22 December 2003, but the file had not been received.  She was referred to the compliance section.  The letter advised that when the file eventually arrived it was provided to the compliance section.  Mrs Cho visited the Parramatta Business Centre again on 12 January 2004.  She was referred to the compliance section.  The letter concluded that all Bridging E visas were granted by the compliance section.  This appears to be in response to the Tribunal’s notification to the Department that the Departmental file did not contain any application for a bridging visa in relation to the bridging visa granted on 22 December 2003. 

7. The Tribunal wrote to Mrs Cho on 28 July 2004 inviting her to comment on information under s.359A of the Migration Act 1958 (Cth) that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. The information in issue was that she did not have an approved nomination in respect of the occupational training visa and on this basis may not meet the requirements of clause 442.222 of Schedule 2 to the Migration Regulations. Her solicitors responded by letter of 1 September 2004 confirming that the applicant did not have a current sponsor, but advising that she was arranging a new sponsor, Shine World International Pty Ltd.

8. Mrs Cho was invited to and attended a Tribunal hearing in January 2005.  The Tribunal recorded in its reasons for decision that she sought and was granted an adjournment as Shine World International Pty Ltd was in the process of lodging an application for sponsorship.  On

   
   

   16 February 2005 the Department made a decision that the sponsor was not approved for occupational training. On 25 February 2005 the Tribunal again wrote to the applicant under s.359A in relation to the information that the nomination by Shine World International Pty Ltd had been refused. The applicant was invited to provide further information relating to the nomination of Shine World International Pty Ltd on the basis that the Tribunal would review the refusal of the nomination as part of the review of the visa decision. The information requested included information to show that the proposed sponsor was capable of giving the nominated person training.

9. The applicant responded on 5 April 2005 claiming that the training to be provided would be six months occupational training for market management through an in-house training programme and six months on-the-spot training for “the purpose of actual acquirement (sic) of operating carwash and air conditioning business”.

10. The Tribunal hearing continued on 11 August 2005.  The Tribunal recorded that the applicant gave evidence that she had no other information to put before the Tribunal to show she was entitled to the grant of a Subclass 442 visa but said that she wanted a substantive visa so she could travel to Korea and return to Australia and so that her children could remain in Australia where they had lived for five years.  She is recorded as claiming that her immigration problems had been caused by the Department not sending the decision of 12 April 2003 to the correct address.  She sought a further adjournment to find another sponsor. 

The Tribunal decision

1. The Tribunal found that, given the earlier adjournment and the time that had elapsed, it was not appropriate to grant the applicant another adjournment as sought.  In its reasons for decision it found first that there was no evidence to suggest that the applicant met key criteria for any of the subclasses of a Class TH visa other than Subclass 442 which was the only subclass in respect of which claims had been advanced. 

2. In relation to Subclass 442 the Tribunal had regard to the requirement (in clause 442.222 of Schedule 2 to the Migration Regulations) that “… a nomination in respect of the occupational training has been lodged and has been approved by the Minister”.

3. The Tribunal observed that there were no legislative requirements for assessing a Subclass 442 nomination (apart from nomination on the correct form under Regulation 1.13), and that the assessment was made under policy as laid out by the Department.  It noted that the Tribunal must have regard to but was not bound by Departmental policy.  It referred to policy requirements that occupational training meant a supervised workplace-based training programme intended to add to or enhance an applicant’s skill level.  It found, in the absence of information from Shine World, that it was not satisfied that Shine World provided the training programme which the visa applicant asserted existed.  It found that Shine World did not provide a training programme.  Hence its application to provide occupational training could not be approved.  Thus the Tribunal found that the applicant could not meet clause 442.222 and was therefore not entitled to the grant of a Subclass 442 visa. 

4. The Tribunal also found that the applicant’s children were not members of the family unit of a person who held a visa of one of the subclasses under Class TH and were therefore not entitled to the grant of any of those visas.  Accordingly the Tribunal affirmed the decision under review finding that the visa applicant and her children were not entitled to the grant of Educational (Temporary) (Class TH) visas.

Grounds of review relating to the Tribunal decision

1. The applicants sought review by application filed in this Court on

   
   

   30 September 2005.  It is convenient to deal first with the grounds in the application that relate to the decision of the Migration Review Tribunal.

2. The application claimed that the Tribunal committed an error of law in the application of clause 442.222 of Schedule 2 to the Migration Regulations in that it failed to take into account relevant considerations and that the Tribunal’s decision was null and void as it failed to make further enquiries with the nominator in relation to training and that this constituted an improper exercise of the relevant power. 

3. However this ground was not addressed in written submissions from Mrs Cho.  The hearing was adjourned as discussed below.  On

   
   

   24 November 2006 the hearing resumed.  Mr Patel appeared for the applicants.  Clarification was sought from Mr Patel as to the basis for the applicants’ case and what remedies were sought from the Court. 

4. Mr Patel first told the Court that his clients had no issues in relation to the application that was before the Tribunal, that the applicant conceded that the Tribunal decision in relation to the Subclass 442 visa was, on the face of it, correct. 

5. However the applicant was said to take issue with the “dire consequences” that had flowed from the fact that she was not correctly notified of the Department’s decision in relation to the Subclass 442 visa, so that she was not aware of the fact that she had become illegal and subsequently was under a misapprehension and misunderstanding believing she was entitled to pursue a remedy in relation to those circumstances with the Tribunal.  It was submitted that the applicant was under a misapprehension that she had no remedy in relation to her bridging visa circumstances and had not understood that she could have put in a new bridging visa application. 

6. After reiterating these concerns and suggesting that the applicant raised issues of natural justice because of her circumstances, Mr Patel confirmed that the applicant was relying on the grounds in the application filed on 30 September 2005.  He then submitted that the cancellation (sic) of her visa resulted in a new application to the Department (the application for a Bridging E visa in December 2003).  This was said to have had certain consequences.  (This appears to be a reference to the applicant’s inability to travel to and from Korea without a Bridging E visa and claimed restrictions on study by her children.)  It was submitted that the Department was or should have been aware of these facts but that it did not care to advise the applicant in relation to the implications, so she was misguided and she adopted the advice she was given, so that her only remedy was to put in another application to ensure that she was not illegal and that this had resulted in a miscarriage of justice because the Department was aware of the fact that she had informed them about her change of address and the fact that that address had gone astray was ignored and that as a result the applicant was misled into putting in another application. 

7. It was contended that the “same mistake” was repeated by the Tribunal, in the sense that it did not consider the question of whether the bridging visa application (presumably the bridging visa application of

   
   

   22 December 2003 or thereafter) was made under a misapprehension or whether the review was also sought under a misapprehension because the applicant had become illegal and had no other choice.  In clarification it was suggested that a Departmental delegate had made an error in accepting a Bridging B visa application in December 2003 and that if Mrs Cho had received the correct advice from the Department she would not be before the Court. 

8. Mr Patel stated that the applicant sought review of the decision of the Tribunal on the ground that the Tribunal did not have jurisdiction in relation to the application because it was “filed under a misapprehension” and contended that it should have been rejected on that basis and that the applicant should have been left to pursue her course of action in relation to the previous applications she may have made. 

Reasoning

1. In relation to the grounds in the application addressing the Tribunal decision the first respondent submitted, and I accept, that the Tribunal did not fail to consider evidence relevant to the satisfaction of clause 442.221 of Schedule 2 to the Migration Regulations and that the Tribunal was not under a duty to conduct further enquiries or investigations (see s.362 of the Migration Act; MIMIA v SGLB (2004) 207 ALR 12 at [42] and [43]; and Mohammed v MIMIA [2005] FCAFC 47 at [24]). It was for the applicants to put before the Tribunal sufficient evidence to satisfy the Tribunal that they met the criteria for an Educational visa. No jurisdictional error is established in relation to the Tribunal’s consideration of the application for an Educational visa and the nomination by Shine World International Pty Ltd.

2. It is apparent that the applicant’s concern with the Tribunal decision relates to her bridging visa status.  It is notable however, that the Tribunal determined that the application to the Tribunal of 14 January 2004 was lodged in time.  It accepted the evidence that the notification of the delegate’s decision was mailed to the address of Mrs Cho’s former authorised recipient but was returned to sender and that she had received a copy of the decision no later than 12 January 2004. 

3. Mr Patel contended that the Tribunal erred in not addressing the circumstances in which the applicant sought a bridging visa in December 2003. However the Tribunal decision that is the subject of these proceedings is, as confirmed by Mr Patel, the decision in relation to the Educational visa application. The Tribunal was not required to consider the circumstances in which the applicants each came to hold a Bridging E visa as part of that review. The decision under review by the Tribunal was the decision of a delegate of the first respondent not to grant Educational visas to the applicants (see s.348 of the Migration Act). There was no decision to refuse or cancel a bridging visa before the Tribunal (and in any event see s.338(4)).

4. Nor is it established that the Tribunal lacked jurisdiction in relation to the application to review the decision in relation to the Educational visa. Indeed, under s.348 of the Migration Act if an application is properly made under s.347 for review of an MRT-reviewable decision such as the decision of the delegate in relation to the Educational visa (see s.338), the Tribunal must review the decision.

5. No jurisdictional error is established in relation to the Tribunal decision.

Other grounds of review

1. Ground 3 in the application of 30 September 2005 is as follows: 

   The Delegate exceeded his or her power in relation to granting the Bridging visa “E” as the applicants are entitled to Bridging visa “A” if the notification of the decision posted to the correct address.  The Delegate’s decision of granting Bridging Visa “E” is ultra vires. 

2. When the respondent first filed written submissions in these proceedings no submissions had been filed by the applicant (who at that time was self-represented).  The respondent’s submission addressed the decision of the delegate in relation to the Educational visa. 

3. The review application was dismissed for non-appearance on 15 June 2006.  It was reinstated on 29 August 2006.  At that time it became apparent (as elaborated on in the applicant’s written submissions filed on 26 September 2006) that the applicant’s concern was not with the decision of the delegate in relation to the Subclass 442 visa, but rather with a decision or decisions in relation to Bridging visas.

4. In her written submissions the applicant took issue with the fact that the Department had sent notification of the decision in relation to the Subclass 442 visa to the wrong address.  She claimed that she had not discovered this until she had visited the Department in December 2003 in order to obtain a Bridging B visa to visit Korea.  At that time she claimed that she was informed that her bridging visa had been “cancelled” (sic) and that she was unlawful.  This was said to have affected her ability to get a further Bridging B visa to travel to Korea and to apply for student visas for her children. 

5. It was claimed that a delegate of the respondent granted the wrong class of bridging visa to the applicant, that this was done because she was unlawful, but that she was only unlawful because the notification of the Subclass 442 decision had been sent to the wrong address.  It was submitted that the Department should grant the applicant a Bridging A visa to rectify its grant of a Bridging E visa.  It was contended that if the correct notification had been sent to the applicant’s address in relation to the Subclass 442 visa she would have continued to hold a Bridging A visa. 

6. The first respondent provided the Court with a further written submission on 29 September 2006 in relation to the applicant’s visa history.  It recorded that the applicant was granted a Subclass 457 visa on 27 June 2000, a Bridging A visa on 21 March 2002, a further Subclass 457 visa on 27 March 2002 (which would cease on

   
   

   27 September 2003) but also a Bridging A visa on 2 May 2002 (the date of her application for a Subclass 442 visa).  On 23 December 2002 she was granted a Bridging B visa and departed Australia, returning on 30 January 2003 as the holder of the Subclass 457 which would cease on 27 September 2003.  It seems that, despite the fact that the applicant held a Subclass 457 visa at the time of her application for a Subclass 442 visa (2 May 2002), she was granted a Bridging A visa at that time, but that when she returned to Australia on 30 January 2003 she was recognised to be the holder of the substantive Subclass 457 visa granted on 27 March 2002.  That ceased on 27 September 2003. 

1. In submissions of 29 September 2006 it was also contended for the first respondent that any Bridging B visa that the applicant held after

   
   

   23 December 2002 would have expired on 12 October 2005 being 28 days after the applicant was deemed to have received notification of the Tribunal decision. 

2. At the start of the hearing on 11 October 2006 the applicant elaborated on her concerns about the Department having notified the decision in relation to the 442 visa to the wrong address, the consequential implications for her bridging visa status and the fact that she was now informed that she was not able to hold a Bridging A visa or Bridging B visa but only a Bridging E visa.  In relation to the Tribunal decision her concern was that the Tribunal did not take into account her circumstances as discussed above.  She reiterated that her concern was about the impact of her failure to receive the visa refusal letter from the Department at the time at which it was sent.  She contended that the Tribunal member should have restored her bridging visa status from Bridging E visa to Bridging A visa. 

3. The applicant was self-represented at this time.  It appeared to be claimed that she had sought but had been refused a Bridging A or B visa in December 2003.  To determine whether she had made an application for a Bridging A or B visa in December 2003 that had been refused, the solicitors for the first respondent were ordered to file copies of any December 2003 bridging visa application by the applicant. 

4. In order to clarify more generally whether there was any “decision” of a delegate of the first respondent or the Tribunal as to cancellation or refusal of a Bridging visa, the hearing was adjourned and orders were made for the filing of further material and submissions. 

5. The solicitors for the first respondent notified the Court that they had been unable to file and serve copies of the first applicant’s bridging visa application in relation to the bridging visa granted on

   
   

   22 December 2003, as searches had not resulted in the Department locating any document constituting a copy of a bridging visa application in relation to the bridging visa granted on 22 December 2003.  Further searches were undertaken. 

6. On 24 November 2006 the hearing resumed.  The first respondent filed and relied on an affidavit sworn by Joan Reid on 24 November 2006 in relation to searches undertaken in an attempt to locate a bridging visa application by the applicant of 22 December 2003.  Ms Reid stated in her affidavit that no such application had been located in either of the files and records of the Department in relation to the applicants.  While the officer who granted the applicant’s Bridging E visa had been identified, no response had been received to an enquiry and Ms Reid had been informed that the person who granted the Bridging E visa on 22 December 2003 was on leave. 

7. Nor was any evidence filed by the applicant as to any application by her for a bridging visa.  In particular there was no evidence of any application for a Bridging A or B visa after December 2003. 

8. As indicated, Mr Patel appeared for the applicant on 24 November 2006.  When asked to clarify precisely what decision of a delegate of the first respondent was in issue Mr Patel suggested that a decision cancelling the bridging visa was in issue.  Mr Patel was not, however, able to identify any decision by a delegate of the first respondent in relation to either the cancellation or refusal of a bridging visa.  He sought that the applicants be given leave to do whatever was necessary so that justice could be done “as if the clock could be turned back”.  No jurisdictional basis for the Court to address the issues raised by Mrs Cho was identified. 

9. The legal representative for the first respondent confirmed that his understanding was that there had been no cancellation of any bridging visa (rather that the bridging visas held by the applicant had ceased).  The Court was assisted by a consideration by the solicitor for the first respondent of what the material before the Court established in relation to the applicant’s bridging visa status and the applicable law. 

10. It was noted that while the applicant was granted a Bridging E visa on 22 December 2003, there was no record of a written application for such a visa located in the Departmental records.  It was observed that (while there was no evidence that this had occurred) under Migration Regulation 2.21B(2) the Minister may grant a non-citizen a Bridging A, C or E visa without an application if satisfied that the non-citizen met certain criteria and under Regulation 2.25.  A Bridging E visa may be granted without application to a non-citizen who is unable or unwilling to make a valid application for a Bridging E visa. 

11. In any event it is clear that by 12 January 2004 the applicant had been provided with a copy of the delegate’s decision in relation to the Subclass 442 visa application.  She sought and was granted a Bridging E visa on the basis that she was making arrangements to depart Australia.  A copy of this application is before the Court.  However she then sought review of the decision in relation to the Subclass 442 visa on 14 January 2004.  She was granted a further Bridging E visa on

    
    

    19 January 2004.  On 5 September 2005 the Tribunal affirmed the decision of the delegate in relation to the Subclass 442 visa.  The applicant sought review of the decision of the MRT on 30 September 2005 in these proceedings.  She was granted a further Bridging E visa on 12 October 2005. 

12. In further supplementary submissions the first respondent addressed the jurisdiction of the Tribunal to review decisions of the delegate in the manner apparently sought by the applicant. In this case s.476 as it stood prior to commencement of the Migration Litigation Reform Act 2005 on 1 December 2005 is applicable, as the applicant lodged her judicial review application on 30 September 2005. 

13. However it was submitted that it was not necessary to consider the scope of s.476 as there was no “primary decision” refusing a Bridging A or B visa as the applicant had not applied for a Bridging A visa or Bridging B visa after the Bridging B visa granted on 23 December 2002 expired.  As there was no primary decision refusing (or cancelling) a Bridging A visa or Bridging B visa it was contended that the Court did not have jurisdiction to consider the applicant’s alleged entitlement to such a visa. 

14. It was further contended that even if the applicant had been entitled to a Bridging A or B visa on 22 December 2003 as she alleged, such a visa would have expired on 12 October 2005.  It was also suggested that the applicant had made three separate applications for a Bridging E visa: on 22 December 2003, 12 January 2004 and 12 October 2005.  It was submitted that this was upon receipt of legal advice for at least the first and third applications. 

Reasoning

1. Mrs Cho’s application for a Subclass 442 visa was refused by a delegate of the first respondent on 12 April 2003.  It is not disputed that on 19 December 2003 she attended a Departmental office to enquire about the progress of the Subclass 442 visa application.  It appears from the applicant’s submissions that she may have assumed at that time that she continued to hold the Bridging A visa granted at the time of her Subclass 442 application (despite the fact that she held a Subclass 457 visa at that time), that she had been granted a further Bridging A visa on her return from overseas on 30 January 2003 or that a Bridging A visa would come into effect when the Subclass 457 visa ceased.  Clearly it is her view that as she was not notified of the delegate’s decision in relation to the Subclass 442 visa until December 2003 or January 2004 her Bridging A visa should have continued or she should have been granted a Bridging A visa instead of a Bridging E visa.  However, on 22 December 2003 she was granted a Bridging E visa according to Departmental records of visas held by the applicant.  There is no evidence before the Court of any visa application of that date.  She subsequently applied for and was granted a further Bridging E visa. 

2. As submitted for the first respondent the applicant’s status in December 2003 was taken by the Department to be that of an unlawful non-citizen.  On that basis the visa class to which she was entitled was a Bridging E visa, which was granted to her.  As was acknowledged for the respondent, it is possible that if none of the events complained of by the applicant in relation to sending the decision to the wrong address had occurred, she might well have been in a position where she had held and had been able to apply for a Bridging A or B visas in December 2003, although she was recognised to be the holder of a substantive Subclass 457 visa when she re-entered Australia on

   
   

   30 January 2003.  However there is no evidence that a visa was cancelled or that there was any application for a Bridging A visa in or after December 2003.  Hence it has not been established that the Department erred in cancelling a visa, failed to consider a valid visa application or refused to grant the applicant a class of Bridging visa to which she was entitled.  Rather the applicant was granted and then sought further Bridging E visas.

3. No submissions were made by Mr Patel to establish a basis on which the Court would have jurisdiction to review the Departmental decision to grant a Bridging E visa to Mrs Cho or to consider whether earlier Bridging A visa remained in effect.  There is no evidence of any decision refusing to grant the applicant a particular class of bridging visa.  Nor is there evidence of any decision to cancel a visa.  Hence it is not necessary to determine whether the Court would have jurisdiction to review a decision of a delegate of the first respondent to cancel or refuse to grant a bridging visa. 

4. Despite the fact that the applicant’s original submissions raised the possibility that she had applied for and been refused a Bridging A visa (in particular in December 2003) or had had a visa cancelled, no evidence to that effect was put before the Court.  Nor is there any evidence before the Court that the applicant has sought review by the Tribunal of any decision in relation to a bridging visa. 

5. In these circumstances, as contended for by the first respondent, no jurisdictional error has been established either in a decision of a delegate of the first respondent or of the Tribunal in relation to which the Court has jurisdiction.  In particular no error is established in the approach of the Tribunal in relation to review of the Subclass 442 visa decision.  The applicant’s bridging visa status was not a matter before the Tribunal for determination in those proceedings. 

6. As indicated above, the Tribunal met its obligation to review the delegate’s decision to refuse the Subclass 442 visa (see s.348 of the Migration Act) and, indeed, gave the applicant the benefit of the doubt concerning notification of the delegate’s decision. The Tribunal did not err in failing to consider the circumstances surrounding the bridging visa granted to the applicant in December 2003, as it did not have before it the refusal of a bridging visa but only the refusal of the Subclass 442 visa.

7. It is unfortunate that the original notification of the Subclass 442 decision was sent to the wrong address so that the applicant did not seek Tribunal review of that decision at a time when she undoubtedly held a visa.  There may well have been some confusion as to whether after her return from overseas in January 2003 the applicant held a substantive Subclass 457 visa which expired in September 2003 so that she became unlawful or whether the Bridging A visa granted in connection with her application for the Subclass 442 visa was in effect.  Her visa status in December 2003 may also be complicated by the fact that the Tribunal later recognised that she had not been notified of the delegate’s decision in April 2003 while the Department apparently proceeded on the basis that any prior Bridging A visa had ceased to be in effect.  However the applicant was granted and later sought a Bridging E visa. 

8. Even if this reflected Departmental advice the difficulty for the applicant is that it has not been established that there is a migration decision in relation to which this Court has jurisdiction under s.476 of the Migration Act 1958 (Cth).

9. None of the grounds in the application for review or any other basis for review has been established.  The Court cannot “set back the clock” as sought by counsel for the applicant.  No basis on which the Court can make the orders sought by the applicant has been established.  The application must be dismissed. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 March 2007