He and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1096

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1096

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2004/1084

GENERAL ADMINISTRATIVE DIVISION		)
Re		GUANG RONG HE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  Deputy-President J Block

Date 21 October 2004

Place Sydney

Decision The Tribunal determines that it does not have jurisdiction.

[Sgd] Deputy-President J Block

CATCHWORDS

JURISDICTION – MIGRATION – cancellation of a residence visa on character grounds – Applicant physically present in the migration zone when the decision to cancel his visa was made – Applicant departed migration zone – Applicant denied re-entry to Australia – Applicant sought review of cancellation decision – whether the Tribunal has jurisdiction – whether this matter falls under the expedited visa regime – consideration of section 338 of the Migration Act – whether relevant decision made on “another ground” pursuant to section 500(3) - Applicant must be physically present in the migration zone when the application for review is made – the Tribunal does not have jurisdiction to hear the matter.

Migration Act 1958 – sections 18,109, 116,500(1), 337, 338(3), 347(3), 347(3A), 500(3), 500(6H), 500(6L),501, 501(2), 501G

Administrative Appeals Tribunal Act 1975 – sections 29, 41(2)

REASONS FOR DECISION

21 October 2004                   Deputy-President J Block

Part A: Background and Introduction

1. The Applicant was the holder of a BL-851 Residence Visa. On 3 June 2004, a decision (the “relevant decision”) was made by a delegate of the Respondent cancelling the Applicant’s residence visa, on character grounds, pursuant to section 501(2) of the Migration Act 1958 (“the Act”).  There was no dispute as to the fact that the Applicant’s criminal record has the effect that he does not pass the character test.

2.        On the date of the relevant decision, the Applicant was physically present in the migration zone.  Subsequently, and on 24 July 2004 the Applicant departed the migration zone (Australia) in order to go to China; he is currently in China.

3.        On 10 August 2004 the Applicant contacted the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”), because he had been refused permission to board an aircraft in order to return to Australia as his visa had been cancelled. On or about that date, he faxed the Department authorising his parents, on his behalf, to receive correspondence from the Department.

4.        On 24 August 2004 the Applicant’s solicitors lodged an application for review of the relevant decision by this Tribunal. As to whether the Applicant’s solicitors were duly authorised to execute and lodge that application on his behalf is questionable but is not an issue which need be resolved by the Tribunal. 

5.        Mr Roland Anthony of counsel, instructed by William Chan and Co, solicitors, appeared for the Applicant and Mr John Bird of Phillips Fox, solicitors, appeared for the Respondent.  Because the question of jurisdiction was raised as a preliminary issue, the G-Documents, which had been lodged with the Tribunal, were not formally tendered.  However, a number of statements were made from the bar table as to certain matters occurring prior to the date of lodgement of the application for review; some of those statements are referred to in this Part A, not as evidence (although the Tribunal has no reason to doubt the veracity of any of them) but as relevant background.  It will be noted that they do not bear directly on the question of jurisdiction. 

6.        Mr Anthony informed the Tribunal that prior to the cancellation of the visa, there had been correspondence involving the Applicant, the Department, and the Applicant’s previous solicitor, Cam Ly, and including in particular a notice of intention to cancel the Applicant’s residence visa.  Mr Anthony noted that this being so, the decision as to cancellation of the residence visa could have been served on the Applicant’s previous solicitor.

7. Mr Bird in turn informed the Tribunal that after the decision to cancel the visa had been made the Department took steps under section 18 of the Act in order to ascertain his whereabouts. Because the Applicant’s criminal history included a conviction for armed robbery, it was necessary for security reasons to arrange for a team of officers, both in respect of the necessary inquiries and for the purpose of serving process. Mr Bird said that to telephone the Applicant’s parents or his probation officer would not have been practicable because it was apprehended that the Applicant when notified of the cancellation of his residence visa, might disappear underground. Where a visa is cancelled in circumstances such as these an applicant is usually detained in order to avoid just such an outcome. A search warrant in respect of the Applicants parents’ home was served in July 2004; by that time the Applicant was in China.

8.        Matters such as these, and where a visa is cancelled on grounds of character, are dealt with under a regime which is referred to as the expedited visa regime, and pursuant to which there are (inter alia) two important consequences.  In the first instance a decision in respect of the application must be issued not later than the 84^th day after notification of the relevant decision (section 500(6L) of the Act). Notification occurred, so I was informed, on 16 August 2004, and so that the 84^th day will occur on 8 November 2004. In the second place section 500(6H) sets out the two business day rule in the following terms:

“If:

(a)       an application is made to the Tribunal for a review of a decision under section 501; and

(b)       the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”

9. On 12 October 2004 the Tribunal faxed the parties in advance of the hearing which had been listed for 14 and 15 October 2004 suggesting inter alia that, the matter having been listed for two days, it might be desirable, after argument had been heard as to jurisdiction, to proceed to a hearing of the substantive application during the remainder of the period for which the matter had been listed. It was suggested to the parties that such a course might be desirable so as to enable the Tribunal, if it reserved its decision as to jurisdiction (which appeared to be likely) to issue a decision both as to jurisdiction and also as to the substantive application, and so that there would in such an event be a decision on the substantive application even if the Tribunal held that it did not have jurisdiction, and where that latter finding was subsequently and successfully appealed. The Tribunal was concerned in this regard as to the 84 day rule provided in section 500(6L) of the Act, and pursuant to which if a decision is not issued in respect of the substantive application by 8 November 2004 it will be taken to have been affirmed.

10. In the result both parties declined to take up the suggestion that, having heard argument of the jurisdiction issue, the Tribunal should then proceed to hear the application. Mr Bird felt that he needed time within which to consider the Applicant’s Statement of Facts and Contentions which had only just been received by him. Mr Anthony in turn, had the matter proceeded on the substantive issue, on 14 October 2004 would have been precluded from presenting the evidence of the Applicant’s parole officer, since no statement by him had been furnished as required by the two day business rule set out in section 500(6H) of the Act.

11. As to whether the matter does properly fall within the expedited visa regime given that the Applicant is not in the migration zone is a question which is not easy to resolve. Section 500(6L) of the Act reads as follows:

“If:

(a)       an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b)       the decision relates to a person in the migration zone; and

(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.”

It will be noted that section 500(6L)(b) of the Act relates in its terms to a decision in respect of a person in the migration zone. On the date of the decision, the Applicant was in the migration zone; on the date of notification of the decision he was not. If the relevant date is the date of the decision, regardless of the date on which it was notified then this matter does correctly fall within the expedited visa regime. It is not necessary for the Tribunal to determine this issue.

Part B: The Jurisdiction issue proper

12. Section 500(3) of the Act contains the central provision as to an applicant’s standing in respect of an application for review. It reads as follows:

“(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.”

13. Section 500(3) of the Act in its terms refers to section 500(1) of the Act which reads as follows:

“(1) Applications may be made to the Administrative Appeals 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)

other than decisions to which a certificate under section 502

applies.”

14. The Applicant through his solicitors sought the review of a decision made pursuant to section 501 of the Act. That decision falls within section 500(1)(b) of the Act; accordingly section 500(3) of the Act applies.

15. To determine whether it has jurisdiction, the Tribunal must consider whether if the relevant decision had been made on another ground (that is, a ground other than character) the Applicant would have been entitled to seek review under Part 5 or Part 7 of the Act.

16. Part 7 of the Act does not apply because it relates to protection visas. The visa with which the relevant decision is concerned is a BL-851 residence visa.

17. Part 5 of the Act provides for review of decisions by the Migration Review Tribunal (the “MRT”). Section 338 of the Act describes the decisions which are “MRT- Reviewable Decisions” under the Act. Section 338(3) of the Act reads as follows:

“(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a)       is covered by subsection (4); or

(b)       is made at a time when the non-citizen was in immigration clearance; or

(c)       was made under subsection 134(1), (3A) or (4) or section 501.”

18. The Tribunal is here concerned with a visa cancellation and not a visa refusal. Section 338(3) of the Act thus has the effect that a decision to cancel the visa of a non-citizen in the migration zone at the time of cancellation (and the Applicant was in the migration zone when the visa was cancelled) is an MRT-Reviewable decision unless one of the exceptions (set out in paragraphs (a) (b) and (c)) of section 338(3) of the Act apply. In fact none of those exceptions applies; the sections of the Act referred to in paragraph (c) of section 338(3) of the Act apply in the context of business and similar visas; paragraph (b) of section 338(3) of the Act does not apply because the Applicant was not in immigration clearance, and paragraph (a) of section 338(3) of the Act does not apply because section 338(4) of the Act relates in its terms to bridging visas.

19. As to what is meant by “another ground” was the subject of some discussion at the hearing. It is clear enough however that a visa can be cancelled on a ground other than character. A breach of visa conditions in accordance with section 116 of the Act (“power to cancel”) serves as a relevant example; section 109 of the Act (“cancellation of visa if information correct”) provides another example.

20. Section 347 of the Act sets out just who can apply for review of MRT-Reviewable Decisions. Section 347(3) of the Act provides:

“(3) If the MRT-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.”

The Applicant did not comply with section 347(3) of the Act because he was not physically present in the migration zone when the application for review was made.

21. Put in succinct terms, the relevant decision, if it had been made on another ground, fell within section 338(3) of the Act, but under section 347(3) of the Act a valid application for review was possible only if the Applicant was physically present in the migration zone at the time of that application. He was not.

22. In so far as there was complaint by the Applicant as to the fact that there was or may have been delay in respect of notification of the relevant decision, the Respondent points out that although section 501G of the Act obliges the Respondent to notify cancellation of a visa, section 501G(4) of the Act explicitly provides that a failure to comply does not affect the validity of the decision.

23. In the interests only of completeness I note that section 501G(1)(f)(v) does not lead to an implication that review can be sought whether or not an applicant is in the migration zone; this is so because of the words contained in section 501G(1)(f) reading “and the person has the right to have the decision reviewed by the Administrative Appeals Tribunal”.

24. The Applicant contended that section 500(3) of the Act is imprecise in its reference to “the decision” in the line which reads “review of the decision under parts 5 or 7”. I do not agree; that reference to the relevant decision is intended, is clear enough from the terms of the section.

25.      I set out the content of clauses 13-19 of the Applicant’s submissions dated 11 October 2004 as to the question of jurisdiction as follows:

“[13] In the Applicant’s submission, a primary purpose of the relevant sections of the Migration Act is to provide for a right to apply for review in appropriate circumstances. Such a right to apply for review is clearly a very significant right of the Applicant. Therefore, a construction of the legislation that would promote this purpose and protect that right should be preferred to a construction that would not do so: section 15AA Acts Interpretation Act 1901(Cth).

[14] The Applicant contends that the meaning and effect of the words “when the application for review is made” in sub-section 347(3) is unclear. Do the words mean “when the application is lodged”: see, for example, section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which clearly speaks in these terms and also that the Tribunal “may entertain” or “refuse to entertain an application”?

[15] If so, what is the reason for the difference in terminology used in the following sub-section 347(3A) of the Migration Act which distinguishes between “at the time when the decision is made” in paragraph (a), and “when the application for review is made” in paragraph (b)?

[16] The Applicant submits that from the time when the required documents for an application for review are lodged, the application is on foot, as it were, and is alive until it has been disposed of by a decision to discontinue or a final determination by the Tribunal.  Accordingly, there is a valid application before the Tribunal and the Tribunal has the jurisdiction to entertain the application.

[17] The Applicant further contends that If the Tribunal finds that it has jurisdiction to entertain the application, then the Tribunal ought in fairness to exercise its powers so as to allow the Applicant to proceed with his application.

[18] The history of this matter as set out in paragraphs 2 to11 above, demonstrate that the Applicant has relied to his detriment on a failure by the Respondent to comply with a statutory obligation to notify him that a decision had been made to cancel his visa.

[19] It is not seriously challenged that the Applicant would have had the right to apply for a review to the Tribunal if he was physically present in Australia at the time when his application was lodged on 19 August 2004. Sub-section 501G(4) of the Migration Act provides that the Respondent’s failure to comply with the section does not affect the validity of the decision. Be that as it may, the Applicant contends that the Tribunal still has the power under sub-section 41(2) of the AAT Act, if it “is of the opinion that it is desirable to do so”, to make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates. Provided the Tribunal first finds that it has the jurisdiction to entertain the application by the Applicant, then it would be appropriate for the Tribunal to make an order setting aside the decision or staying the effect of the decision until such time as the Applicant is able to return to Australia and proceed with his application. In the circumstances, it would be unfair for the Respondent to oppose such a course of action given that it is only necessary due to the failure of the Respondent.”

26. The relevance of section 29 of the Administrative Appeals Tribunal Act1975 (“AAT Act”) is not clear to me. This Tribunal is a creature of statute; it does not have any general discretion or residual jurisdiction, and is permitted to hear applications for review provided for and to the extent provided for in the enabling statute (and in this case of course the Act).

27.      Clause 16 of the Applicant’s submissions as to jurisdiction does not appear to me to have merit.  An application for review is lodged, on the date when it is lodged, and there is no ongoing or continuing effect as contended for by the Applicant.

28. As regards clause 19 of the Applicant’s submissions, Mr Anthony contended that the Tribunal has certain stay powers in terms of section 41(2) of the AAT Act. This is perfectly true. However, Mr Anthony also conceded (again correctly) that that power is relevant if, and only if, the Tribunal has jurisdiction in the first place. In this case it does not. It was suggested, albeit not with any great conviction, that there might be a basis on which I could order the Respondent to grant a visa to the Applicant to enable him to return to Australia in order to proceed with this application. I know of no such power.

Part C: Conclusion

29. The relevant provisions of the Act are such that a person who wishes to seek the review of a cancellation decision of this nature can do so only if he is physically present in Australia. The Applicant was, as I have made clear, not physically present in Australia at the time when the application was made.

30.      Accordingly the Tribunal finds that it does not have jurisdiction.   

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy-President J Block  

Signed: Melinda Di Condio
  Associate

Date of Hearing  : 14 October 2004         
Date of Decision  :  21 October 2004
Counsel for the Applicant         :  Mr Roland Anthony
Solicitor for the Applicant          : Ms Noelle Tin, William Chan & Co, solicitors  
Solicitor for the Respondent     : Mr John Bird, Phillips Fox, solicitors