Heffernan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 626
•13 June 2024
FEDERAL COURT OF AUSTRALIA
Heffernan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 626
Review of: Decision of Administrative Appeals Tribunal delivered by Senior Member Theodore Tavoularis on 20 March 2023 File number(s): QUD 142 of 2023 Judgment of: COLLIER ACJ Date of judgment: 13 June 2024 Catchwords: MIGRATION - review of decision of Administrative Appeals Tribunal – ss 347 & 500 Migration Act 1958 (Cth) - Minister refused application for Return (Residence) (Class BB) Visa - whether Tribunal had jurisdiction to review decision of Minister – whether non-citizen had to be physically in migration zone when application for review was made Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29
Migration Act 1958 (Cth) ss 338, 347, 348, 476A, 500, 501
Cases cited: Adekoya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1400
Assi v Minister for Immigration [2005] FMCA 260
Gajjar v Minister for Immigration and Citizenship (Matter No B72 of 2012)
Nguyen & Ors the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Matter No C1 of 2022, 31 March 2022, High Court of Australia)
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 14 September 2023 Counsel for the Applicant: Mr P Nolan Solicitor for the Applicant: Ramsden Lawyers Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
QUD 142 of 2023 BETWEEN: CHRISTOPHER JAMES HEFFERNAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
COLLIER ACJ
DATE OF ORDER:
13 JUNE 2024
THE COURT ORDERS THAT:
1.The Originating Application for Review of a Migration Decision filed on 17 April 2023 be dismissed.
2.The applicant pay the costs of the first respondent to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER ACJ
Before the Court is an application made under s 476A of the Migration Act 1958 (Cth) (Migration Act) seeking a review of a decision of the Administrative Appeals Tribunal (the Tribunal). Specifically, the applicant sought the following relief:
1. An order that the Second Respondent’s decision of 20 March 2023 be set aside or quashed.
2. A declaration that in application number 2023/0797, the Tribunal has jurisdiction to review the decision of the delegate of the First Respondent dated 1 February 2023.
3. Costs.
The sole ground of application was as follows:
1.The Second Respondent’s decision of 20 March 2023 is affected by jurisdictional error, because that decision is based on the Tribunal’s erroneous conclusion that the Tribunal did not have jurisdiction to review the decision of the First Respondent dated 1 February 2023.
Particulars
(a) The decision of the delegate of the Respondent dated 1 February 2023 was a refusal of the Applicant’s Return (Residence) (Class BB) Visa (RR Visa) (Subclass 155) on the basis that the Applicant failed to satisfy the character test pursuant to section 501(6)(d)(i) of the Migration Act.
(b) On 10 February 2023, the Applicant lodged an application for review of that decision with the Second Respondent. At the time of that application, the Applicant was not physically present in the “migration zone” (ie, Australia). The Applicant was present in the “migration zone” at the time of lodging the initial RR Visa application on 3 August 2022.
(c) The Second Respondent dismissed the Applicant’s application under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), applying section 347(3) of the Migration Act, which states that 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.
(d) The Second Respondent erroneously engaged section 347(3) of the Migration Act to the Applicant’s application, which only applies to a “Part 5 Reviewable Decision”. The First Respondent’s decision is not such a decision, but rather made under section 501 of the Migration Act, and the Second Respondent’s jurisdiction is invoked by virtue of section 500 of the Migration Act, unimpeded by section 347.
On 12 May 2023, the Tribunal filed a submitting notice, save as to costs.
BACKGROUND
The applicant is a national of Ireland. The applicant’s de facto partner and his three minor children were all born in Australia and are Australian citizens.
The applicant first arrived in Australia in 2011 on a working holiday visa. Since then, the applicant has departed and returned to Australia on multiple occasions.
In sometime after late 2015, the applicant was granted a temporary partner visa. During the application process for the temporary partner visa, the applicant was notified that the Minister considered exercising their discretion under s 501(1) of the Migration Act to refuse the visa application on character grounds. The Minister’s consideration was in relation to a conviction for common assault in 2012 in Australia and a number of undisclosed convictions that occurred in Ireland. The Minister warned that if the applicant engaged in any future offending visa cancellation or refusal of any future visa applications may be considered and if so, the fact of that warning would weigh heavily against him.
Sometime after this, and prior to August 2017, the applicant obtained a permanent partner visa. The permanent partner visa has limitations in relation to leaving and returning to Australia.
On 3 August 2022, the applicant made an application for a Return (Residence) (Class BB Subclass 155) visa (Return Resident Visa). It is the application for this Return Resident Visa that is the subject of these proceedings.
On 8 August 2022, the applicant and his family departed Australia. At the time of departure, the Return Resident Visa application had not been processed and the applicant was still a holder of a permanent partner visa. Whilst the applicant was still a holder of a permanent partner visa, the visa restrictions did not permit the applicant to leave and return to Australia at that particular time.
On 12 October 2022, the Minister issued to the applicant a Notice of Intention to Consider Refusal in relation to the Return Resident Visa.
On 1 February 2023, a delegate of the Minister refused the applicant’s Return Resident Visa application on the basis that the applicant failed to satisfy the character test under s 501(1) of the Migration Act (Minister’s Decision).
By way of letter dated 3 February 2023, the applicant was informed of the Minister’s Decision and was also, in summary, notified that:
(a)the Minister’s Decision was not reviewable by the Tribunal or any other merits review body; and
(b)any other visa held by the applicant that was not a Protection Visa was also taken to have been cancelled by the Minister’s delegate.
The applicant remained outside of Australia at this time and did not hold a valid visa.
On 10 February 2023, the applicant applied to the Tribunal for review of the Minister’s Decision.
On 20 March 2023, the Tribunal dismissed the application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the Tribunal lacked jurisdiction as the applicant was not physically present in Australia at the time of lodging the application for review.
MINISTER’S DECISION
The decision made by a delegate of the Minister under s 501(1) of the Migration Act was:
Mr HEFFERNAN has not satisfied me that he passes the character test. I have decided to exercise my discretion under s 501(1) of the Act to refuse to grant Mr HEFFERNAN’s visa. I hereby refuse to grant Mr HEFFERNAN a Return (Residence)(Class BB) visa. My reasons for this decision are set out in the attached Statement of Reasons.
In summary, the reasons for the Minister’s Decision included the following:
·The applicant had a history of criminal conduct in Australia that included:
·A conviction in 2018 for Assault Occasioning Actual Bodily Harm;
·A conviction in 2018 for Possession of a Prohibited Drug;
·A conviction in 2017 for Possession of a Prohibited Drug;
·A conviction in 2016 for Possess/Attempt to Prescribed Restricted Substance.
·A conviction in 2016 for Common Assault (DV); and
·A conviction in 2012 for Common Assault.
·The applicant also had a history of criminal conduct in Ireland.
·The misuse of alcohol, particularly when under significant stress and anxiety, appeared to have been a significant contributor to the applicant’s history of offending.
·The Minister’s delegate acknowledged that the applicant made a significant effort in realising the factors contributing to his offending behaviours and addressing those factors and appears to have ceased perpetrating criminal offences in the four years prior. However considered that the applicant’s overall criminal history spanning some eight years, with many chances to rehabilitate and a failure to do so, provided little confidence that the applicant will continue to abstain from similar offending behaviour if faced with similar stressors in future.
·There was a significant risk of reoffending if the applicant was allowed to enter or remain in Australia.
·The nature of the applicant’s conduct was very serious, such that any future offending of a similar nature would have the potential to cause physical and/or psychological injury to members of the Australian community. Further to individual impacts of victims, the violence can have a broader impact on the broader Australian community, placing additional burden on resources such as law enforcement and the healthcare system.
·In determining whether to exercise the discretion to refuse the visa application, the following considerations consistent with Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA were taken into account:
·the protection of the Australian community, taking into account the nature and seriousness of the applicant’s criminal offending or other serious conduct, and the risk to the Australian community should the applicant engage in further criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
·The delegate of the Minister found that the very serious nature of the convictions, including an act of family violence and a serious crime against a woman, and the formal warning given in 2015 by the Department of the consequences of further offending, outweighed the considerations of the applicant’s strong ties to the Australian community and the best interest of the applicant’s minor child.
DECISION OF THE TRIBUNAL
On 10 February 2023, the applicant lodged with the Tribunal an application for review of the Minister’s Decision. However, as the letter dated 3 February 2023 stated that the Minister’s Decision was not reviewable, a hearing was held on 27 February 2023 to hear oral submissions as to whether the Tribunal had jurisdiction to review the Minister’s Decision.
In determining whether the Tribunal had jurisdiction to proceed with the application for review of the Minister's Decision, the Tribunal considered in summary the following:
·Section 25 of the AAT Act provides 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.
·Section 500(1)(b) of the Migration Act provides that applications for review of decisions made by a delegate of the Minister in exercising the power conferred by section 501 of the Migration Act should be made to the Tribunal.
·Section 500(3) of the Migration Act however provides that a person is not entitled to make an application under s 500(1) for review of a decision referred to in s 500(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.
·The Minister’s Decision would meet the definition of a Part 5 reviewable decision under s 338(2) of the Migration Act if it were not a decision under s 501 of the Migration Act.
·Section 347 of the Migration Act provides that an application for review of a Part 5 reviewable decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
·The Tribunal noted that the applicant had applied for the Resident Return visa while in the Migration Zone on 3 August 2022 but remained offshore at the time the Minister’s Decision and the application for review before the Tribunal.
Materially, the Tribunal made findings as follows:
19. 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.
20. 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.
21. 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.
22. 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.
23.The Tribunal is satisfied that it does not have jurisdiction to consider the review application filed by the Applicant on 10 February 2023.
DECISION
24. Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application under review for lack of jurisdiction.
It is this decision of the Tribunal that is currently before the Court.
SUBMISSIONS
At the hearing before me both the applicant and the first respondent were represented by Counsel.
In summary, the applicant submitted the following:
·The decision to refuse to grant the Return Resident Visa to the applicant was made on “character grounds” pursuant to s 501 of the Migration Act;
·Section 500(1) provides that the Tribunal may conduct reviews of decisions of a delegate of the Minister made under s 501 or s 500(4A) of the Migration Act;
·Section 500(4A) of the Migration Act is not relevant to this application;
·The ability to seek review by the Tribunal under s 500(1)(b) is qualified by s 500(3). Under that section, for the Tribunal to have jurisdiction to review decisions on character grounds, it must be established that, had the decision not been made on character grounds, the person would have been “entitled” to seek review of the decision in the Tribunal under part 5 or 7 of the Migration Act;
·The Tribunal was satisfied that the Minister’s Decision, being a refusal of a Resident Return Visa, would be a Part 5 reviewable decision under s 338(2) of the Migration Act, had the refusal decision not been made on character grounds under s 501 of the Migration Act;
·Section 347 of the Migration Act sets out the procedural requirements for commencing an application in the Tribunal, including that the application must be in the approved form, and be made within the prescribed time and when the person is in the migration zone;
·The construction of the words “an application for review may only be made by…” in s 347(3) operates to prevent an existing right to make an application for review from being exercised, while not destroying or extinguishing that right;
·The question before the Tribunal under s 500(3) was whether the person would be “entitled” to seek review of the decision under Part 5. The section is concerned with the entitlement to seek review, not whether the person was able to exercise that entitlement. Section 347 therefore was not relevant to the question before the tribunal as it addresses exercise of the entitlement;
·As Steward J observed in Nguyen & Ors the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Matter No C1 of 2022, 31 March 2022, High Court of Australia), once a decision “had the character” of being a Part 5 decision, it was “reviewable” and “non-compliance with section 347, whether voluntary or otherwise, does not alter the character of the decision”;
·Once established that, if not rejected on character grounds, the decision had the quality of being a “Part 5 reviewable decision”, the applicant would have been entitled to seek review of that decision in the Tribunal. The fact that he did not comply with s 347(3), that is, being in Australia when the application was lodged, did not alter the character of it being one for which he would have been entitled to seek review in the Tribunal;
·As the Tribunal’s decision has the character of being one in respect of which the applicant would be entitled to seek review under Part 5 if the decision had been made on another ground, s 501(1)(b) of the Migration Act has been engaged, thus allowing review by the Tribunal;
·Section 500(4)(b) of the Migration Act makes plain that a decision under s 501 is not reviewable under Part 5 or Part 7 of the Migration Act and therefore the procedural limitations in s 347, which are located in Part 5, do not apply;
·Sections 25 and 29 of the AAT Act makes evident that there is a difference between the entitlement for a decision to be reviewed by the Tribunal, and the manner in which applying the review can be made. It was submitted that if the manner is not complied with, the right to review is removed but the entitlement still exists;
·Section 500 of the Migration Act requires a person to show that there was an entitlement to seek review under Part 5. Whether they are in fact able to seek review and the manner in which the review is to be determined is under s 500, not under s 347; and
·The relevant Explanatory Memorandum simply describes various situations concerning who can actually seek review of a decision by the Tribunal, rather than stipulating a requirement that the person must be in Australia.
In summary, the first respondent submitted the following:
·The Migration Act confers a right of seeking merits review by the Tribunal in respect of particular decisions. Under s 500(1) of the Migration Act, the applicant may make a review application to the Tribunal;
·The issue that arises in this case is whether s 500(3) of the Migration Act, which is concerned with standing, applies;
·Section 500(3) of the Migration Act did not confer jurisdiction on the Tribunal to review the Minister’s Decision;
·The wording of s 347(3) that “an application for review may only be made by …” is strongly indicative that no merits review rights exist where the requirement is not met;
·Sections 347(2) and 347(3) of the Migration Act seek to limit entitlement to seek review to particular persons in particular localities at particular times. Where those mandatory requirements are not satisfied, the Tribunal’s review jurisdiction is not enlivened. There would be no review “entitlement” under s 500(3) of the Migration Act;
·In Adekoya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1400, the Court accepted that the requirement in s 347(2) was relevant to determining whether a non-citizen came within s 500(3) of the Migration Act;
·The legislative history of s 500 of the Migration Act and the relevant Explanatory Memorandum show clear legislative intent that s 500 review rights were not intended to be conferred on persons who were based offshore;
·Section 500 of the Migration Act was not intended to confer a review jurisdiction on the Tribunal that would be broader than would be conferred on the Tribunal under Part 5 or 7. The starting point was that Parts 5 and 7 merits review were available for particular adverse migration decisions. However, s 500(4) had the effect that, where those particular adverse migration decisions were made on character grounds, only those which met the s 500 jurisdictional requirements could be the subject of merits review;
·If the Minister’s decision was made on another ground, the applicant would have been precluded from seeking review of that decision on the basis that the applicant was offshore;
·The submissions of the applicant in relation to the construction of the word “entitlement” in s 500(3) should be rejected as:
·Section 338 of the Migration Act is not a substantive provision able to be contrasted with s 347;
·The suggestion that s 347 only deals with procedural requirements is not correct – rather, s 347 is relevant to a person’s entitlement to seek review;
·The words “may only be made” in s 347(3) makes it clear that the very right itself only exists for persons who are in the migration zone at the time their review application is made; and
·The term “entitled” in s 500(3) of the Migration Act is intended to be referable to requirements such as those in s 347 of the Migration Act;
·The cases of Nguyen & Ors the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Matter No C1 of 2022) and Gajjar v Minister for Immigration and Citizenship (Matter No B72 of 2012), as relied on by the applicant, are not analogous;
·Section 347 cannot be described as a mere manner provision where a failure to comply with ss 347(1)(b) and (c) deprives the Tribunal of review jurisdiction;
·The ordinary meaning of the word “entitlement” refers to whether a person has a right to do something;
·The relevant Explanatory Memorandum indicates the legislative intention of s 500(3) was that a person outside Australia was not able to seek merits review of an adverse character decision; and
·The requirements within ss 500(6A), (6B) and (6C) of the Migration Act only apply if the Tribunal has jurisdiction. These sections are not relevant in determining jurisdiction.
RELEVANT LEGISLATION
Section 338 of the Migration Act provides:
Definition of Part 5-reviewable decision
(1) A decision is a Part 5-reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b)the decision is a Part 7-reviewable decision; or
(c)the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d)the decision is a fast track 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.
……
Section 347 of the Migration Act provides:
Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i)if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or
(ii)if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)--70 days after the notification of the decision; or
(iii)if the Part 5-reviewable decision is covered by subsection 338(9)--the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An 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
(b)if the Part 5-reviewable decision is covered by subsection 338(5) or (8)--the sponsor or nominator referred to in the subsection concerned; or
(c) if the Part 5-reviewable decision is covered by subsection 338(6) or (7)--the relative referred to in the subsection concerned; or
(d)if the Part 5-reviewable decision is covered by subsection 338(9)--the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).
(3)If 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)
Section 348 of the Migration Act provides:
Tribunal to review Part 5-reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
Section 500 of the Migration Act provides:
Review of decision
(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, other than decisions to which a certificate under section 502 applies; or
(b)decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
(ba)decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or
(c)a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
Note: Decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the Administrative Appeals Tribunal. However, some decisions of this kind are reviewable by that Tribunal, in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision in subsection 5(1).
……
(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.
(4) The following decisions are not reviewable under Part 5 or 7:
(a)a decision under section 200 because of circumstances specified in section 201;
(b) a decision under section 501;
(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
…..
(6A)If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision.
(6B)If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
(6C)If a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of:
(a)the document notifying the person of the decision in accordance with subsection 501G(1); and
(b)one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.
…..
CONSIDERATION
The question before me is whether the Tribunal has erred in deciding that it had no jurisdiction to consider the review application filed by the applicant on 10 February 2023.
The Senior Member in determining that the Tribunal did not have the requisite jurisdiction set out in detail his reasons for so finding.
I note that this is not the first time an applicant has made an argument in terms similar to those presently before the Court. In Assi v Minister for Immigration [2005] FMCA 260 the learned Federal Magistrate held at [68] that, for the purposes of the Part 5 Reviewable Decision before the Tribunal in that case, the legislation was clear that, as the applicant was not inside the migration zone he was not entitled to make an application to the Tribunal, and it followed that the Tribunal had no jurisdiction to entertain the application for review.
In the present case Mr McGlade for the Minister submitted at the hearing that:
…The issue is whether were the visa refusal decision which was against the applicant in this case made on another ground, so if the Minister had not been satisfied that at applicant had, for example, met her visa criteria as opposed to finding the fail on the character criteria, the issue is if the decision was refused, the visa was refused on another ground, whether in that scenario, that counterfactual scenario, the applicant would be entitled to seek review under part 5 of the Act. Because that’s what section 500 sub(3) provides.
Your Honour, the Minister submits the answer to that question is no, because in that counterfactual scenario I just talked about the applicant would not have been entitled to seek review because section 347 sub(3) of the Act provided an application for review:
…may only be made by a non-citizen who is physically present in the migration zone when the applicant for review is made.
(transcript pp 8-9)
In my view this characterisation of the issue is correct.
Section 25 of the AAT Act enlivens a person’s entitlement to review in the Tribunal where an enactment provides for review. Section 500(1)(b) of the Migration Act provides that applications for review of a decision of a delegate of the Minister under s 501 may be made to the Tribunal. Section 500(3) however operates to limit applications under s 500(1)(b) “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 of the Migration Act concerns protection visas and is not relevant to this proceeding.
Section 338 of the Migration Act defines “Part 5 - reviewable decision”. In particular, s 338(2) defines decisions other than decisions covered by subsection (4) or made under section 501 to refuse to grant a non-citizen a visa as 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
…
Prima facie, the Minister’s Decision was a Part 5-reviewable decision under s 338(2) of the Migration Act as:
·the Return Resident Visa could be granted while the non-citizen was in the migration zone; and
·the applicant made the application for the Return Resident Visa while in the migration zone; and
·the decision was not made when the applicant:
·was in immigration clearance; or
·had been refused immigration clearance and had not subsequently been immigration cleared; and
·the Return Resident Visa was a permanent visa.
However s 347 of the Migration Act qualifies an application for review of a Part 5-reviewable decision, including that it must be:
·In the approved form (s 347(1)(a));
·Within the prescribed period (s 347(1)(b));
·Accompanied by the prescribed fee (s 347 (1)(c));
·In respect of Part 5-reviewable decisions covered by s 338 (2);
·the application can be made only by the non - citizen who was the subject of that decision (s 347(2)); and
·the application can be made only by a non-citizen who is physically present in the migration zone when the application for review is made.
Perhaps unfortunately, the terms of s 500(3) of the Migration Act are somewhat convoluted. However I am not persuaded by the submission of Mr Nolan for the applicant that there is a distinction to be drawn between “the entitlement to seek review” and the ability to exercise that entitlement for the purposes of s 500(3). As a matter of logic and plain reading of the terms of that section, read with ss 347 and 348, it is clear that the Minister is correct, and the application which was before the Tribunal was one which in other circumstances could only have been made by a non-citizen who was physically present in the migration zone when the application for review is made. I am fortified in this conclusion by reference to the Explanatory Memorandum to the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 which relevantly provides:
1368. New section 344: Who can apply for review of decisions
1. New section 344 provides who can apply for merits review of a decision to which Part 5 applies. It combines into one section all existing provisions of the Migration Act dealing with standing to make an application for merits review. The current AAT standing is also translated into the new Part 5 for relevant decisions.
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7. New subsection 344(4) reflects the essence of existing subsection 500(3) in providing that an application for review of a reviewable protection visa character decision may only be made by the non-citizen who is the subject of the decision and provided the non-citizen is in the migration zone when the application for review is made. Insofar as is relevant, subsection 500(3) provides that a person is not entitled to make an application for review of a decision unless the person would be entitled to seek review of the decision under Part 7 if the decision had been made on another ground. In relation to Part 7 RRT review, subsections 412(2) and (3) provide that an application for review may only be made by the non-citizen who is the subject of the decision and by a non-citizen who is in the migration zone when the application for review is made.
While the numbering of the legislative provisions has changed since 2000, the policy as set out in the Explanatory Memorandum has not.
I further note the findings in Assi v Minister for Immigration at [63] that s 347(2), an analogous section, of the Migration Act clearly manifested a legislative intention to limit the jurisdiction of the Tribunal and was not simply procedural in nature.
As the Tribunal observed at [22], the evidence before it was that the applicant had been offshore since departing Australia on 8 August 2022. Accordingly, the applicant was unable to satisfy s 347(3) of the Act, and had not made a valid application for review of the Resident Return visa refusal.
The Tribunal concluded that it did not have jurisdiction to consider the applicant’s review application. I am unable to identify any error in this reasoning of the Tribunal.
CONCLUSION
The appropriate order is that the originating application for review of a migration decision filed on 17 April 2023 should be dismissed.
Costs follow the event.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Acting Chief Justice Collier. Associate:
Dated: 13 June 2024
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