Downs (Migration)
[2017] AATA 671
•8 May 2017
Downs (Migration) [2017] AATA 671 (8 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Steven Howard Downs
CASE NUMBER: 1622606
DIBP REFERENCE(S):
MEMBER:Susan Trotter
DATE:8 May 2017
PLACE OF DECISION: Brisbane
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 08 May 2017 at 5:29pm
CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Not Part 5-reviewable decision – Visa cancelled while applicant in immigration clearance – Applicant departed Australia – Natural justice and procedural fairness
LEGISLATION
Migration Act 1958, ss 5(1), 172(2), 338, 347, 348
Migration Regulation 1994, r 4.02(4)
CASES
Cujba v Minister for Immigration and Multicultural [2001] FCA 146
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 28 December 2016, to cancel a Special Category (Temporary) (Class TY) (Subclass 444) visa under the Migration Act 1958 (the Act).
The review application was lodged with the Tribunal on 30 December 2016. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
In this case, the Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of a Part 5-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 Part 5-reviewable decisions.
Relevantly in this matter, section 338(3)(b) of the Act provides that a cancellation decision is a Part 5-reviewable decision, that is, this Tribunal has jurisdiction to review such a decision unless the visa was cancelled at a time when the applicant was in immigration clearance.
Section 172(2) of the Act defines the expression “in immigration clearance”. It means, among other things, where a person is with an officer of the Department of Immigration and has not been refused immigration clearance.
Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(3), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.
The Department’s movement records show that the applicant entered Australia on 27 December 2016 but was refused entry when his visa cancelled on 28 December 2016 and he subsequently departed Australia on 28 December 2016. He therefore was in immigration clearance at the time of cancellation of the visa and was not in the migration zone on 30 December 2016, the date of his application to the Tribunal.
The Tribunal formed the preliminary view that it did not have jurisdiction in this case.
The Tribunal wrote to the applicant on 22 March 2017, care of his authorised representative/migration agent, inviting submissions by 6 April 2017 on whether the Tribunal had jurisdiction in circumstances where the applicant was not in the migration zone at the time the application was lodged with the Tribunal on 30 December 2016.
On 6 April 2017, the Tribunal received submissions from the applicant’s representative in response to its letter of 22 March 2017 submitting, amongst other things, that the applicant was not afforded natural justice or procedural fairness in relation to cancellation of the Subclass 444 visa, which led to his immediate removal from Australia such that the application for review through the Tribunal should remain valid.
The Tribunal again wrote to the applicant on 11 April 2017, care of his authorised representative/migration agent, confirming receipt of the submissions dated 6 April 2017 and advising that the Tribunal had also formed a preliminary view that there was a further jurisdiction issue in that it appears that the cancellation decision is not a decision that is reviewable by the Tribunal as the applicant was in immigration clearance at the time of the cancellation.
On 28 April 2017, the Tribunal received further submissions from the applicant’s representative in response to its letter of 11 April 2017 submitting, amongst other things, that the applicant concedes that he was in immigration clearance however submits that he was unfairly kept in immigration clearance and was removed from Australia several hours later without access to procedural fairness and natural justice. Reference is made in the submissions to the case of Cujba v Minister for Immigration and Multicultural [2001] FCA 146 (Cujba) where it was found that the visa applicant in that case, Mr Cujba, in similar circumstances to Mr Downs’, was in immigration clearance in circumstances where he had immigration clearance but not achieved the status of being immigration cleared (pursuant to s.172 of the Act). It is submitted that Mr Downs was kept in immigration clearance without any explanation or access to legal representation and the delegate of the Department therefore encroached on Mr Downs’ legal rights, which was not a factor or feature in Cujba. It is submitted that the Tribunal not adopt the decision in Cujba, as Mr Downs was not afforded natural justice or procedural fairness, which was not a contested factor in Cujba and he was not provided due process prior to the cancellation of his visa.
As indicated in the Tribunal’s letters of 22 March 2017 and 11 April 2017, there are preliminary issues as to whether the Tribunal has jurisdiction. Circumstances regarding the cancellation of the visa, or whether Mr Downs was accorded natural justice and procedural fairness, are not relevant to consideration of these issues and the Tribunal has no discretion to take those circumstances into account when considering the jurisdiction issues.
It is conceded, and the Tribunal finds, that Mr Downs was in immigration clearance at the time of the decision to cancel the visa. It follows that the decision is not a Part 5-reviewable decision pursuant to s.338(3). There being no other relevant provision, the Tribunal has no jurisdiction in the matter.
Alternatively, even if the decision was a reviewable decision under s.338, the application for review cannot be made under s.347(3) because Mr Downs was not in the migration zone when the review application was made.
Given the Tribunal’s findings, the Tribunal does not have jurisdiction in this matter.
DECISION
The Tribunal does not have jurisdiction in this matter.
Susan Trotter
Member
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