Heffernan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 416
•20 March 2023
Heffernan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 416 (20 March 2023)
Division:GENERAL DIVISION
File Number: 2023/0797
Re:Christopher James Heffernan
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:20 March 2023
Place:Brisbane
Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application under review for lack of jurisdiction.
........................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE – MIGRATION – whether the Tribunal has jurisdiction to review a refusal of a section 501(1) refusal of a Return (Residence) (Class BB) (Subclass 155) visa – whether the decision is a Part-5 Reviewable Decision – requirements for application for review – where the Applicant is offshore at the time of lodgement to the Tribunal – dismissed for no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) sections 25,43
Migration Act 1958 (Cth) sections 338, 347, 500, 501
Migration Regulations 1994 (Cth) clauses 155.411, 155.511
REASONS FOR DECISION
Senior Member Theodore Tavoularis
20 March 2023
BACKGROUND
The Applicant is a 39-year-old national of Ireland who first arrived in Australia in 2011. Since his first arrival he has departed and arrived in and from Australia on multiple occasions.
On 3 August 2022, the Applicant made an onshore application for a Return (Residence) (Class BB Subclass 155) visa (‘the Resident Return visa’).
On 8 August 2022, the Applicant departed Australia as the holder of a Partner Visa (Residence) (Subclass 801) visa (‘the Partner visa’).
On 12 October 2022, the Applicant received notice of the intention to consider the refusal of the Applicant’s Resident Return visa application under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’).
On 1 February 2023, a delegate of the Respondent refused the Applicant’s application for the Resident Return visa under section 501(1) of the Act on the basis the Applicant failed to satisfy the character test pursuant to s 501(6)(d)(i) of the Act (‘the Decision Under Review’).
The Applicant was notified of the Decision Under Review on 3 February 2023. Under the heading ‘Review rights’ on the notification letter was the following:
‘You are not entitled to have the decision to refuse to grant you a Return (Residence) (Class BB) visa reviewed by the Administrative Appeals Tribunal (AAT) or any other merits review body.’
The Applicant was also notified in the notification letter of 3 February 2023 that as a result of the Decision Under Review, the delegate of the Minister is taken to have decided to cancel the Applicant’s Partner visa by operation of section 501F(3) of the Act. The Applicant was therefore left without a valid Australian visa to return to Australia.
On 10 February 2023, the Applicant lodged with this Tribunal a review of the Decision Under Review.
Given the notification letter dated 3 February 2023 stated that the Applicant was not entitled to have the decision reviewed, the application was listed for an interlocutory hearing (by telephone) on 24 February 2023. During the interlocutory hearing on the 24 February 2023 the Applicant’s representative requested an in-person hearing to ventilate this matter further. This request was granted by the Tribunal and an in-person hearing took place on 27 February 2023 to hear oral submissions on the Tribunal’s jurisdiction.
LEGISLATIVE FRAMEWORK
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act’) states that an application can only be made to the Tribunal for review of a decision if the enactment under which the decision is made provides that an application for review may be made for such a decision.
Under subsection 25(3) of the AAT Act, where an enactment makes provision for an application to be made to the Tribunal, that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
Paragraph 500(1)(b) of the Act provides for applications to be made to the Tribunal for review of decisions made by a delegate of the Minister in exercising the power conferred by section 501 of the Act.
However, subsection 500(3) of the Act provides:
‘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.’
Part-7 reviewable decisions are defined under section 411 of the Act. The Decision Under Review does not concern an application for a Protection Visa, and therefore an assessment of Part-7 reviewable decisions of the Act is unnecessary.
Part-5 reviewable decisions are defined under section 338 of the Act. Relevantly, subsection 338(2) of the Act provides:
Definition of Part 5-reviewable decision
…
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
The Tribunal notes that an Applicant may be in or outside Australia (but not in immigration clearance) at the time of the grant of a Resident Return visa[1] and that a Resident Return visa is a permanent visa.[2] The Tribunal further notes that the Applicant had applied for the Resident Return visa while in the Migration Zone on 3 August 2022 and has remained offshore at the time the Decision Under Review
[1] Migration Regulations 1994 (Cth) clause 155.411.
[2] Migration Regulations 1994 (Cth) clause 155.511.
The Tribunal is satisfied that the Decision Under Review, were it not a decision under section 501 of the Act, would meet the definition of Part-5 reviewable decision under section 338(2) of the Act. For completeness, the Tribunal is satisfied that the Decision Under Review would not meet the requirements of any other subsections of section 338 of the Act.
Section 347 of the Act provides the requirements for an application for review of
Part-5 reviewable decisions:‘Application for review of Part 5-reviewable decisions
2An application for review may only be made by:
(a)if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--the non-citizen who is the subject of that decision; or
…
3If the Part 5-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.’
(Emphasis added)
CONSIDERATION
The Tribunal is satisfied that a decision by a delegate of the Respondent to refuse a Resident Return visa pursuant to section 501(1) of the Act is capable of review by this Tribunal.
The Tribunal is further satisfied that only the Applicant is entitled to apply for review of the Decision Under Review to this Tribunal, as the non-citizen who is the subject of that decision, pursuant to subsection 347(2) of the Act.
Subsection 347(3) of the Act however provides that for a Part 5-reviewable decision covered by subsection 338(2) of the Act to be reviewable to this Tribunal, the Applicant must be physically present in the Migration Zone at the time of lodging the review application.
The evidence before the Tribunal is that the Applicant has been offshore since departing Australia on 8 August 2022 and is unable to return onshore to lodge a fresh application. As the Applicant remains offshore, he is unable to satisfy subsection 347(3) of the Act, and therefore he has not made a valid application for review of the Resident Return visa refusal.
The Tribunal is satisfied that it does not have jurisdiction to consider the review application filed by the Applicant on 10 February 2023.
DECISION
Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application under review for lack of jurisdiction.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............[SGD]...........
Associate
Dated: 20 March 2023
Dates of interlocutory hearing: 24 & 27 February 2023
Counsel for the Applicant: Mr Philip Nolan
Solicitor for the Applicant Ms Lauren Blud (Ramsden Lawyers)
Solicitor for the Respondent: Mr Jake Kyranis (Sparke Helmore Lawyers)
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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