Druett and Minister for Immigration and Citizenship

[2011] AATA 585

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 585

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2411

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARRY DRUETT

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member S E Frost

Date25 August 2011

PlaceSydney

Decision This Tribunal has no jurisdiction to review the decision of which the Applicant complains.

..................[sgd]........................

S E Frost
  Senior Member

REASONS FOR DECISION

Senior Member S E Frost  

1.      On 3 August 2011, I conducted a hearing to determine whether the Administrative Appeals Tribunal (“AAT”) has jurisdiction to examine Mr Druett’s complaints. 

2.      Mr Druett’s application to the AAT, in answer to the question “Who made the decision, if known: Department or other body:”, stated “Immigration”.  Accordingly the application was assumed to be an application for review of a decision of the Minister for Immigration and Citizenship, and the Minister was notified of the application. 

3.      Mr Druett attended the hearing on 3 August 2011 by telephone.  Ms Alexandra Collins, of Clayton Utz, representing the Minister, also appeared by telephone.

4.      Mr Druett has been to the AAT before.  Most recently, in 2010, Senior Member Isenberg found that the Tribunal lacked jurisdiction to consider the complaints that he was raising at that time: Re Druett and Minister for Immigration and Citizenship [2010] AATA 636 (the earlier Druett application). One of his complaints related to a visa application on behalf of a Ms Xu.

5.      His current application, lodged on 21 June 2011, claims that he has been “verily informed” that “a decision was made by Ben Nichols in Shanghai” on 20 May 2011, but he had not produced to the AAT a copy of any decision that Mr Nichols may have made.

6.      Ms Collins informed me that officers of the Department had searched their database back as far as October 2010 and had located no record of any decision having been made by Mr Nichols or by any other officer of the Department, in relation to Mr Druett, during that time.

7.      I was left with the impression that a decision of some kind may have been made by a delegate of the Minister but, without being able to identify any particular decision, it was not possible to be satisfied that this Tribunal had jurisdiction to examine any of Mr Druett’s concerns.

8.      Before adjourning the hearing, I granted Mr Druett, at his request, two days to provide written submissions in relation to his application.  I also granted the Minister time to respond to any such submissions.

9.      On 5 August 2011 Mr Druett provided a bundle of papers, rather than written submissions, to the Tribunal and to the Minister’s solicitors.  None of those papers shed any light on any decision that a delegate may have made and that might have been subject to a review.

10.     The Minister filed a “Respondent’s Statement of Facts and Contentions” on 15 August 2011 which included the following:

[4]       The Applicant’s evidence includes a decision record, signed by Ben Nicholls, relating to the refusal of a visa application made by Ms Li XU.  The Applicant was a sponsor for Ms Xu’s application for a Partner (Provisional) (subclass 309) visa which was refused by a delegate of the Minister for Immigration and Citizenship on 20 May 2011.

11.     Mr Druett had provided no such “evidence” to the Tribunal, either with his application form or with the bundle of papers referred to in [9] above.  The Tribunal therefore asked the Minister’s solicitors to provide a copy of the “decision record” referred to in the Minister’s statement.  It was provided the same day.

12.     The “decision record” does indeed relate to an application for a subclass 309 Partner (Provisional) visa for Ms Li Xu, who appears to be the same person as was referred to by SM Isenberg in the earlier Druett application.  The application had been refused, by Mr Ben Nicholls, in Shanghai, and the letter accompanying the notice of refusal is dated 20 May 2011.  Included with the notice sent to Ms Xu is a reference to her “review rights” in which it is indicated that her sponsor or nominator “is entitled to apply for a review of this decision to the Migration Review Tribunal (MRT)”.

The jurisdiction of this Tribunal

13. Section 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) states that an enactment may provide for an application to be made to the Tribunal for review of decisions made in the exercise of powers conferred by the enactment.  Section 25(4) provides that the Tribunal has power “to review any decision in respect of which application is made to it under any enactment”.

14.     In relation to Mr Druett’s current application, the Minister submits in its Statement of Facts and Contentions:

[5] Jurisdiction for the Tribunal to review decisions concerning the exercise of powers conferred by the Migration Act 1958 (Migration Act) with respect to visa applications is provided by section 500 of the Migration Act.

[6]       Subsection 500(1) provides that an application may be made to the Tribunal for review of:

(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b)decisions of a delegate of the Minister under section 501; or

(c)a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); …

[7] Under Division 9 of Part 5 of the Migration Act, the Tribunal may review decisions referred to it by the Migration Review Tribunal (MRT). The Principal Member of the MRT may refer an “MRT-reviewable decision” to the Tribunal if the Principal Member considers that the decision involves an important principle, or issue, of general application (section 381(1)).

[8] Under Division 8 of Part 7 of the Migration Act, the Tribunal may review decisions referred to it by the Refugee Review Tribunal (RRT). The Principal Member of the RRT may refer an “RRT-reviewable decision” to the Tribunal if the Principal Member considers that the decision involves an important principle, or issue, of general application (section 443(1)).

[9] The decision to refuse Ms Xu’s application for a subclass 309 visa is a decision made under section 65 (Decision to grant or refuse to grant visa) of the Migration Act and is reviewable by the Migration Review Tribunal under section 338 (Decisions reviewable by Migration Review Tribunal) of the Migration Act.

[10] The Respondent contends that as the decision to refuse Ms Xu’s application is not a decision under sections 200 or 501, or a decision to refuse to grant or cancel a protection visa, an application cannot be made for review of the decision by the Tribunal under section 500 of the Migration Act.

[11] The Respondent also contends that as the application for review of the decision to refuse Ms Xu’s application has not been referred to the Tribunal by either the Principal Member of the MRT or the RRT, the decision is not reviewable by the Tribunal under either Division 9 of Part 5 or Division 8 of Part 7 of the Migration Act.

15.     I agree with those submissions.  The decision is not reviewable in this Tribunal, but it may be reviewable in the MRT.

Decision

16.     In these circumstances, I decide that the AAT has no jurisdiction to review the decision of which Mr Druett complains.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S E Frost

Signed:         ...........[sgd]............................
  Associate

Date of Hearing  3 August 2011
Final submissions received      15 August 2011
Date of Decision  25 August 2011
Applicant self-represented               
Solicitor for the Respondent     Clayton Utz