Khan (Migration)

[2018] AATA 4406

Khan (Migration) [2018] AATA 4406 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Riaz KHAN

CASE NUMBER:  1830973

DIBP REFERENCE(S):  BCC2018/4577189

MEMBER:Shane Lucas

DATE:29 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2018 at 10:55am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – invalid application – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 47, 72, 338, 347, 411, 412
Migration Regulations 1994, Schedule 1, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 23 October 2018 for review of a notification of invalid application for a Bridging Visa (Class WE) (subclass 050) provided to the applicant by the Department of Home Affairs (Home Affairs) on 22 October 2018. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

3. In the notification provided to the applicant by Home Affairs on 22 October 2018, it states that the “… application for a visa is invalid because it did not meet Item 1305(3)(ba) of Schedule 1 of the Migration Regulations 1994 (the Regulations). That provision required that you [the applicant] must be an eligible non-citizen within the meaning of section 72 of the Act… [Your] application has not been accepted and will not be assessed against the visa criteria for grant or refusal.”

4. On 24 October 2018, the Tribunal wrote to the applicant advising that the application for review was not a valid application as the applicant was not immigration cleared at the time of application on 18 October 2018, as required by s.72(1) of the Act. The applicant was invited to comment on whether a valid application was made within two working days (i.e. by 26 October 2018).

5. On 25 October 2018, the applicant responded in writing to the Tribunal detailing the circumstances of his arrival in Australia on 16 October 2018 and confirming that his initial Tourist Visa (Class FA) (subclass 600) had been cancelled by officers of Home Affairs on his initial arrival at Melbourne Airport. The applicant requested that the Tribunal make a favourable decision on his review application on humanitarian grounds.

6. Section 47(4) of the Act states that “… a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.” As no reviewable decision had been made at the time the review application was lodged, it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Shane Lucas
   Member