Matthews (Migration)

[2017] AATA 1300

Matthews (Migration) [2017] AATA 1300 (4 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Graeme Sean Matthews

CASE NUMBER:  1703589

DIBP REFERENCE(S):  000 CLF2017/13094

MEMBER:Christine Kannis

DATE:4 August 2017

PLACE OF DECISION:  Perth

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

Statement made on 04 August 2017 at 7:20am

CATCHWORDS

Migration – Subclass TY444 visa – Invalid application – No refusal decision for second review application

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 338, 347, 411, 412

Migration Regulations 1994, Schedule 2, r 4.02(4)

CASES

SZMBM v MIAC [2008] FMCA 529

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 1 March 2017 for review of a decision made on 27 February 2017 to refuse a Subclass TY444 visa. 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.

3. Departmental records show the applicant lodged two separate applications for a Subclass TY444 visa. The first application was refused on 1 February 2017 and Departmental records indicate that after numerous attempts to contact the applicant by telephone, he was advised of the decision by email dated 27 February 2017. The applicant was in immigration clearance at the time of the refusal decision and consequently the decision is not a reviewable decision (s.338(2)(c) of the Act).

4. The second application for a Subclass TY444 visa was lodged on 23 February 2017 and Departmental records indicate that the applicant was advised of the decision by letter dated 6 April 2017.

5. On 1 March 2017 the applicant lodged an application for review of a decision made on 27 February 2017.

6. The Tribunal formed the preliminary view that it did not have jurisdiction because the Department had not made a decision to refuse the applicant’s visa on 27 February 2017 and consequently there was no decision made on that date that could be reviewed.

7. On 21 March 2017 the Tribunal invited the applicant’s registered migration agent to comment on the validity of the application for review.

8. On 2 April 2017 the applicant’s registered migration agent responded and contended that the applicant’s second application for a Subclass 444 visa, made on 23 February 2017, was refused on 27 February 2017. 

9. On 24 April 2017 the Tribunal again invited the applicant’s registered migration agent to comment on the validity of the application for review and provided the following information:

   The DIBP has now advised the Tribunal the following:

   · There have been two separate applications and two separate refusal decisions on s/c 444 visa applications made by Mr Matthews.

   · The first refusal decision was made in Immigration clearance (Perth International Airport) on 1 February 2017. The decision record relevant to this application indicates that this decision is not merits reviewable.

   · The second application was lodged at a departmental office on 23 February 2017 and a refusal decision was made on this application on 6 April 2017. This application is merits reviewable.

   · There was no decision made on 27 February 2017. DIBP advises that calls were made and an e-mail sent to Mr Matthews on this date to re-enforce the fact that the first s/c 444 visa application had been refused and to either apply for an alternate visa or seek migration advice.

   Having regard to the above advice from DIBP, and to your agent’s letter dated 02 April 2017, if your application for review which was lodged with the Tribunal on 1 March 2017 is for a decision made on 27 February 2017, then it appears to be an invalid application since there was not a reviewable decision made on 27 February 2017.  It therefore appears that your application is not a valid application. However, this is a matter which must be determined by the Presiding Member.

10. The applicant’s registered migration agent responded on 5 May 2017 and advised that the applicant had not received any phone calls from the Department and that the email dated 27 February 2017 did not contain advice that the applicant apply for an alternate visa or seek migration advice. The applicant’s registered migration agent advised that the applicant had not received the letter dated 6 April 2017 and requested the application for a review be put “on hold” until the letter dated 6 April 2017 had been provided by the Department.

11. On 25 July 2017 the Tribunal wrote to the applicant’s registered migration agent and again invited comments on the validity of the application for review. The letter included the following:

    Based on the information provided by DIBP, it appears at the time the application was made, no reviewable decision had been made.

    In relation to the second decision made on 6 April 2017, there is no provision in the Migration Act giving the Tribunal jurisdiction to review decisions that may be made in the future. This means that in order for there to be a valid application for review, a decision must in fact be in existence. An application for review of a decision cannot be made in anticipation of a primary decision, which will be Part 5 – reviewable, once made.

12. On 3 August 2017 the applicant’s registered migration agent responded as follows:

    Our response is as follows:

    1.     The application for sc444 was lodged personally by the applicant on 23 February 2017.

    2.     On 27 February 2017, the DIBP through Richard sent an email refusing the application.

    3.     The applicant’s review was lodged on 1 March 2017 on grounds of refusal on 27 February 2017.

    4.     The applicant’s review application is not based on the refusal on the 1 February 2017 but the refusal by the DIBP on 27 February 2017.

    5.     We submit that the application for the review is a valid application and that the decision of DIBP via email dated 27 February 2017 is a reviewable decision.

13. The applicant’s registered migration agent submitted that in the alternative, the application for review could be heard by the Tribunal on the grounds that whether the applicant was relying on either the 27 February 2017 or 6 April 2017 refusal, the application for a Subclass 444 visa had been refused.  The registered migration agent further submitted that if the application for review was refused, another application for a review of the decision made on 6 April 2017 would be made, and that would be inefficient.

14. The Tribunal decided that there was no reviewable decision made on 1 February 2017 because at the time of the decision the applicant was in Immigration clearance.

15. As no decision was made on 27 February 2017, the review application does not seek review of a reviewable decision. It follows that the application was therefore not properly made and the Tribunal does not have jurisdiction in this matter.

16. In relation to the decision made on 6 April 2017, in SZMBM v MIAC [2008] FMCA 529 (Scarlett FM, 14 April 2008), the applicant applied to the Tribunal before the delegate’s decision on his visa application had been made. The Court found that there was no provision in the Act giving the Tribunal jurisdiction to review decisions that may be made in the future.

    DECISION

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

    Christine Kannis
    Member