Murphy and Secretary, Department of Immigration and Citizenship

[2011] AATA 848

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 848

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3202

GENERAL ADMINISTRATIVE DIVISION		)
Re		KYLO MURPHY

Applicant

And SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date19 October 2011

PlaceMelbourne

Decision The Tribunal dismisses the application for review in accordance with
s 42A(4) of the Administrative Appeals Tribunal Act 1975.

....................…..[sgd]..................

Senior Member

PRACTICE AND PROCEDURE – jurisdiction – refusal to grant a Working Holiday visa due to not passing the character test - whether the Tribunal has jurisdiction to review the decision

Administrative Appeals Tribunal Act 1975 ss 25, 42A(4)

Migration Act 1958 ss 499, 500(1)(b), 500(3), 500(6A), 500(6L), 501(1)

REASONS FOR DECISION

19 October 2011 G. D. Friedman, Senior Member  

1.Mr Kylo Murphy was born in England and is a citizen of the United Kingdom.

2.On 12 February 2008 Mr Murphy entered Australia on an ETA (visitor) visa granted by the Department of Immigration and Citizenship (the Department) and departed on 8 March 2008.

3.On 20 March 2011 Mr Murphy lodged an application for a Working Holiday (temporary) (Class TZ) visa with the Department. On 1 August 2011 a delegate for the Minister of Immigration and Citizenship refused to grant Mr Murphy a visa pursuant to subsection 501(1) of the Migration Act 1958 (the Act) because Mr Murphy failed the character test as set out in the Act and in the Minister’s Direction number 41 (direction under section 499 – visa refusal and cancellation under section 501 of the Act) (the Directions).

4.In the decision the delegate informed Mr Murphy that no merits review was available to him. The delegate stated:

Neither the Act not any other legislation provides for the merits review of this decision to refuse to grant you a visa under subsection 501(1) by any tribunal, including the Administrative Appeals Tribunal. This is because you are outside Australia and because according to the information in your visa application:

·You have not been sponsored or nominated for the grant of the visa; or

·You do not have, or intend to visit in Australia, an Australian citizen or permanent resident who is your parent, spouse, de facto partner, child brother or sister.

5.On 9 August 2011 Mr Murphy lodged an application with the Tribunal for review of the decision.

ISSUE

6.The issue before the Tribunal is whether the Tribunal has jurisdiction to review the delegate’s decision.

JURISDICTION

7.The Tribunal’s powers to review administrative decisions are limited by statute. Section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) makes it clear that the Tribunal may only review certain decisions. Section 25 of the AAT Act states that an enactment (that is a particular statute) may provide for applications to be made to the Tribunal for a review of decisions made in the exercise of powers which are conferred by a particular statute; or for the review of decisions made in the exercise of powers which are conferred by another statute and which have effect under the statute which is under consideration. Where a statute provides for a review of a decision by the Tribunal, it must specify the person or persons to whose decision the provision applies; it may be expressed to apply to all decisions of a particular person or to a class of such decisions; and it may specify conditions subject to which the applicants may be made.

8.Thus the particular Act under which a decision is made must provide specifically for the right of review to the Tribunal.

9.The relevant statute is the Migration Act 1958 (the Act). Jurisdiction for the Tribunal to review decisions concerning the exercise of powers conferred by the Act with respect to visa applications is provided for by section 500 of the Act. While subsection 500(1)(b) does entitle persons who are dissatisfied with a decision under section 501 to make an application to the Tribunal for review, subsection 500(3) provides that the right of review contained within subsection 500(1)(b) only applies if a person would be entitled to seek review of the decision under Part 5, or Part 7 if the decision had been made on another ground.

10.Subsection 500(4)(b) prevents decisions made under section 501 of the Act from being reviewed under Part 5 or Part 7 of the Act. As the decision to refuse to grant Mr Murphy a visa pursuant to subsection 501(1) of the Act is not reviewable under Part 5 or Part 7 of the Act, the provision for Mr Murphy to make an application to the Tribunal under s 500(1) is not applicable to the decision in question.

11.Subsections 500(6A) to 500(6L) in the Act give the Tribunal jurisdiction to review decisions made under section 501 of the Act if the decision relates to a person in the migration zone, however Mr Murphy is not currently within the migration zone, and the decision to refuse him a visa is in respect of a visa that: does not require sponsorship by an approved sponsor; does not require Mr Murphy to be or have been an Australian permanent resident; and, does not involve a family member of Mr Murphy who is an Australian permanent resident or citizen. It follows that this Tribunal has no jurisdiction to review the delegate’s decision.

DECISION

12.The Tribunal dismisses the application in accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of
G. D. Friedman, Senior Member

Signed: ..........................................[sgd]........................................
  Associate                  Michael Heffernan

Date of Hearing  19 October 2011
Date of Decision  19 October 2011
Advocate for the Applicant                   Self-represented

Solicitor for the Respondent                 Mr Scott Moloney, Clayton Utz