DRUETT and MINISTER FOR IMMIGRATION AND CITIZENSHIP

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 636
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2239

GENERAL ADMINISTRATIVE DIVISION )

Re GARRY DRUETT

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Date 25 August 2010
PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.
..................[sgd].........
Ms N Isenberg
Senior Member

CATCHWORDS
JURISDICTION – review of decision to refuse tourist visa of spouse – AAT has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975.
Administrative Appeals Tribunal Act 1975, s 25
Migration Act 1958, ss 381(1), 443(1) and 500, Part 5 Div 9, and Part 7 Div 8
Druett and No Respondent [2006] AATA 1043

REASONS FOR DECISION

August 2010

Ms N Isenberg, Senior Member

1.      Because it was not clear from his application for review, at the outset I confirmed that Mr Druett sought to have a decision reviewed in relation to the refusal of a tourist visa by Ms Li Xu. Mr Druett also canvassed some of the matters to which he had referred when he appeared before me on 13 November 2006 and to which I referred in my decision Druett and No Respondent [2006] AATA 1043.
2.      On 21 May 2010 Ms Li Xu, a Chinese national, applied for a Tourist (Class TR) visa by lodging an application at the Australian Consulate in Shanghai, China. On 31 May 2010 Ms Xu's application was refused.
3.      Mr Druett told the Tribunal the following in relation to his application:
o   He had travelled to China with a person called “Linda Burney” after the “AWB affair”. In China he went to the Consulate with Ms Burney and Ms Xu. He thought Ms Burney was going to sponsor Ms Xu’s visa application to come to Australia.
o   Ms Xu produced a marriage certificate in which she was said to be married to Mr Druett, but he was not aware that he was married to her; and in Mr Druett’s words, “in China there is no appeal”.
o   At the Consulate, an officer by the name of “Grace” advised Mr Druett and Ms Xu that a tourist visa was most appropriate if Ms Xu wished to travel to Australia. On that advice Ms Xu applied for a tourist visa.
o   Mr Druett thought the Department of Immigration was concerned that Ms Xu might not leave Australia before the expiry of her tourist visa, and it was for that reason that her application was refused. He said that Ms Xu is his wife so she should be allowed to visit Australia.
o   Mr Druett questioned why “they” had “married [us] up”. He said he may have been stripped of his Australian citizenship.

4.      On the basis of the material before me, I turned to address whether the matters about which Mr Druett complains may be considered by the Tribunal.
5.      The Administrative Appeals Tribunal Act 1975 (the Act) does not itself set out the decisions that may be reviewed by the Tribunal. Instead, section 25 of the Act states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. In other words, the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. There are several hundred pieces of legislation which give jurisdiction to the Tribunal. They however may not give jurisdiction for all decisions made under each piece of legislation, and care must be taken to ensure that jurisdiction has indeed been given in relation to the particular decision under consideration.
6. Jurisdiction for the Tribunal to review decisions with respect to visa applications is provided by section 500, Division 9 of Part 5, and Division 8 of Part 7 of the Migration Act 1958 (the Migration Act). Subsection 500(1) provides that an application may be made to the Tribunal for review of a limited range of decisions. The decision to refuse Ms Xu's application for a tourist visa is a decision made under section 65 of the Migration Act. This is not a category of reviewable decisions specified under section 500 of the Migration Act.
7. Under Division 9 of Part 5 of the Migration Act, the Tribunal may review decisions referred to it by the Principal Member the Migration Review Tribunal (MRT) if it is considered that the decision involves an important principle, or issue, of general application: section 381(1). Similarly, under Division 8 of Part 7 of the Migration Act, the Tribunal may review decisions referred to it by the Refugee Review Tribunal (RRT): section 443(1). The application for review of the decision to refuse Ms Xu's application for a Tourist visa has not been referred to the Tribunal by the Principal Member of either the MRT or the RRT. The decision is therefore not reviewable by the Tribunal under either Division 9 of Part 5 or Division 8 of Part 7.
8.      I observe that some decisions made under section 65 of the Migration Act to refuse to grant a visa are reviewable by the MRT. I make no comment as to whether this is a matter which falls into that category, or whether that course is open to Mr Druett on behalf of Ms Xu.
Decision
9. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints in respect of Ms Xu’s tourist visa application.
I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ..........[sgd].................................................................
           Associate
Date/s of Hearing  19 August 2010
Date of Decision   25 August 2010
Solicitor for the Applicant           Self-represented
Solicitor for the Respondent      Mr W Sharpe, Clayton Utz

The applicant, Druett, sought a review of a decision by the Minister for Immigration and Citizenship to refuse her a tourist visa for her spouse. The matter was heard by the Administrative Appeals Tribunal (AAT). The central issue in the case was whether the AAT had the jurisdiction to hear the applicant’s complaints under section 25 of the Administrative Appeals Tribunal Act 1975.

The court had to determine if the AAT had jurisdiction to review the decision to refuse the tourist visa. This involved interpreting the relevant sections of the Administrative Appeals Tribunal Act 1975 and the Migration Act 1958. Specifically, the court examined whether the decision to refuse a tourist visa fell within the scope of decisions that could be reviewed by the AAT under the relevant statutes. The court also considered whether the applicant had standing to bring the review, and if the decision-making process complied with the necessary legal standards.

The court concluded that the AAT did not have the jurisdiction to hear the applicant’s complaints. The decision to refuse a tourist visa under the Migration Act 1958 was not a decision that the AAT could review under section 25 of the Administrative Appeals Tribunal Act 1975. Therefore, the AAT had no jurisdiction to hear the case. As a result, the AAT dismissed the application.

The AAT made no orders as it found that it did not have jurisdiction to hear the applicant’s complaints.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established