Khan (Migration)

[2021] AATA 3494

Khan (Migration) [2021] AATA 3494 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Masud Khan

CASE NUMBER:  2107623

HOME AFFAIRS REFERENCE(S):          BCC2021/1115560

MEMBER:James Silva

DATE:7 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2021 at 3:17pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – legislative exclusion of applicants refused immigration clearance and not subsequently immigration cleared – brief response to tribunal’s invitation to comment – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338(2)(c)(ii), (4), 347(2)

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 Home Affairs, dated 9 June 2021, to refuse to grant a Bridging E (Class WE) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 11 June 2021. 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. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.

   §  Section 338(2) states that this includes decisions to refuse to grant certain visas. However, s.338(2)(c)(ii) excludes decisions that were made when the non-citizen had been refused immigration clearance and had not subsequently been immigration cleared.

   §  Section 338(4) states that a decision is a Part-5 reviewable decision if it was a decision to refuse to grant a bridging visa to a non-citizen in immigration detention because of that refusal.

4. The Department advised that the applicant was refused immigration clearance and has not been immigration cleared. There is no evidence that the applicant is in immigration detention.

5. The Tribunal initially invited the applicant to a hearing on 20 August 2021. On learning that the applicant appeared to fall within the scope of s.338(2)(c)(ii), the Tribunal cancelled the hearing and wrote to him on 23 August 2021, inviting his comments on the validity of the application for review. On 30 August 2021, the applied replied briefly, stating that he hoped the visa could be approved.

6. As the application for review is not an application properly made under s 347, it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   James Silva
   Member