Hui (Migration)

[2020] AATA 3294

Hui (Migration) [2020] AATA 3294 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ka Wan Hui

CASE NUMBER:  2006409

DIBP REFERENCE(S):  BCC2020197521

MEMBER:David Barker

DATE:22 June 2020

PLACE OF DECISION:  Sydney 

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 22 June 2020 at 11:39am

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – applicant was not in the migration zone – current Coronavirus pandemic – no discretion – no jurisdiction

LEGISLATION
Migration Act 1958, ss 5, 65, 338, 347

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 11 March 2020, to refuse to grant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 31 March 2020. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. The Tribunal formed the preliminary view that it did not have jurisdiction in this matter because the visa applicant was not in the migration zone at the time of the review application. The Tribunal sent the applicant a letter, through her representative, by email on 15 April 2020, inviting her to comment on this issue by 29 April 2020. The Tribunal received an email response from the applicant’s representative on 15 April 2020, which stated:

   Our client was onshore when she lodged her Subclass 155 visa application which, we respectfully submit, gives her review right by law. We respectfully submit that our client does not have to be onshore when she lodged her AAT appeal.

4. On 20 April 2020 the Tribunal received further submissions from the applicant’s representative which contend:

   On AAT’s Invitation to Comment on Validity of Application for Review, it states that,
   “In order to have made a valid application, you must have been in Australia at the time the
   application was lodged with us on 31 March 2020. “ The word “must” is used.
   However, We respectfully submit that the issue on the validity of AAT application is a
   discretionary one because the legislature intends this power to be discretionary. We respectfully submit that the legislature deliberately drafted the law this way in order to protect one of the fundamental human rights, namely, the right to appeal, and to uphold the principle of separation of power and the rule of law. We now address the reasons for our submission are as follows:

   On the Department of Home Affairs’ Notification letter, it states that, “You may only seek merits review of this decision with AAT if you are physically present in Australia at the time the application for merit review if made.” The word “may” is used.

   We refer to Section 347(2), (3) and (3A) of the Migration Act 1994 for guidance. The word
   “may” has been used consistently. S347(3) states that, “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.” The word “may” is used. Subsection 338(2), (3), (3A) or (4) is not applicable to our client’s case.

   Based on the above legal authority, we respectfully submit that our client is not required to be
   onshore when she lodged her AAT application.

   From a practical point of view, we argue that it is impossible for our client to be physically in
   Australia at time of the lodgement of her AAT application because of the current travel ban
   imposed by the Australian government in light of the Coronavirus.

   To sum up, we respectfully request the Member to exercise his/her discretion to accept our
   client’s AAT application.

5. On 27 April 2020 the applicant’s representative provided further submission to the effect that the Coronavirus pandemic travel ban in place when the applicant lodged her review application made it impossible upon a practical level for her to be onshore at the time of lodging her review application.

6. The Tribunal acknowledges the unusual and difficult circumstances consequent to the current Coronavirus pandemic and has carefully considered the submissions put forward in support of a view the Tribunal has jurisdiction to undertake the requested review.

   Does an applicant need to be in Australia when a review application is lodged?

7. The applicant’s representative has submitted that because the applicant was onshore when they applied for the Subclass 155 Return (Residence) visa there is no requirement they be onshore when they lodged their review application.

8. The applicant’s representative noted the use of the word ‘must[1]’ in the Tribunal’s natural justice letter sent to the applicant on 15 April 2020 and the use of the by the Department of the word ‘may[2]’ in the visa refusal notification letter and in the Act at s.347(3).  In relation to the Tribunal’s use of the word ‘must’ the representative contends the legislation intends the issue on the validity of review application to be discretionary one because the legislature intends this power to be discretionary in order to protect one of the fundamental human rights, namely, the right to appeal, and to uphold the principle of separation of power and the rule of law. The applicant’s representative has also submitted that Subsection 338(2), (3), (3A) or (4) is not applicable to our client’s case.

   [1]   The Macquarie Dictionary provides the common meaning of ‘must’ to include: to indicate obligation or necessity, inevitability, something necessary or vital.

   [2] >

   Dealing with this latter claim first, the Tribunal notes the representative has not put forward a coherent explanation as to why Subsection 338(2) is not applicable to the applicant’s case and for the following reasons the Tribunal does not accept this contention. Section 338(2) of the Act provides that a decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if the visa could be granted while the non-citizen is in the migration zone; and the non-citizen made the application for the visa while in the migration zone. The Department’s movement records show the applicant departed from Australia on 31 January 2020 and has not returned.  She lodged her application for the Subclass 155 Return (Residence) visa on 28 January 2020. The term ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. The Tribunal accepts the applicant was in the migration zone at the time she lodged her visa application and that the Subclass 155 Return (Residence) visa is of a type that can be granted while the non-citizen is in the migration zone. Accordingly, the Tribunal is satisfied the Department’s visa refusal decision is reviewable under s.338(2) of the Act, if the review application is validly made.

9. In so far as the Tribunal understands the representative’s submissions in relation to other aspects of the jurisdiction issue, a distinction is drawn between the meaning of the words ‘must’ and ‘may’, with the contention seeming to be the latter term ‘may’ providing more scope for the exercise of discretion to regard a review application lodged outside the migration zone as a valid application. The Tribunal accepts these terms do not have the same meaning and considers the word ‘may’ to be the important term, as it is the word used in the relevant sections of the Act and as such is to be regarded as a more accurate reflection of the legislative intent of the Commonwealth than a term used in a natural justice letter from the Tribunal.  

10. The word ‘may’ is not defined in the Act or Regulations. The Macquarie Dictionary provides the common meaning of ‘may’ to include: to have permission to, to be possible.  In the view of the Tribunal these meanings encompass the way the term is used in Section 347(2) of the Act , which specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3).  The Tribunal does not view the use of the word ‘may’ in this context to be ambiguous or lacking in clarity.  The Tribunal is satisfied the use of the word ‘may’ conveys that it ‘is possible’ only for the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made to apply for a review of the decision that is reviewable under Part 5 of the Act; and that only a non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made has ‘permission to’ apply for a review of the decision that is reviewable under Part 5 of the Act.

11. The Department’s movement records show the applicant departed from Australia on 31 January 2020 and that she has not returned. The Tribunal notes the Subclass 155 Return (Residence) (Class BB) visa decision was made on 11 March 2020 and the review application was received on 31 March 2020. On both of these dates the applicant was absent from Australia.

12. The Tribunal acknowledges the unusual and difficult circumstances impacting upon the applicant as a consequence of the Coronavirus pandemic and travel restrictions affecting many parts of the world, including Australia.  The Tribunal acknowledges that such a situation is not provided for in the Act or Regulations. It is however the Tribunal’s role to apply the legislation as it stands and to not go beyond what the Commonwealth has provided for in the Act and Regulations.   

13. The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter. There is no discretion provided for in the law which allows the Tribunal to make any other decision

    DECISION

14. The Tribunal does not have jurisdiction in this matter.

    David Barker
    Member