Naqati and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1346
•16 December 2004
CATCHWORDS –JURISDICTION – immigration – whether visa applicant may seek review of the decision refusing to grant him visa class BN, subclass 136, Skilled Independent –Tribunal has no jurisdiction.
Administrative Appeals Tribunal Act 1975 ss. 25, 27 and 29
Migration Act 1958 Parts 5 and 7, ss. 5, 338, 347, 348, 500 and 501
Migration Regulations 1994 s. 31; Schedule 2; criterion 136.411
Re VAS and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 939, 18 September 2003
DECISION AND REASONS FOR DECISION [2004] AATA 1346
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/767
GENERAL ADMINISTRATIVE DIVISION )
Re PARVEZ NAQATI
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: S A Forgie (Deputy President)
Date: 16 December 2004
Place: Melbourne
Decision:The Tribunal does not have jurisdiction to consider Mr Naqati’s application.
S A FORGIE
Deputy President
REASONS FOR DECISION
The applicant, Mr Parvez Naqati, resides in India and did so when he applied for an Australian visa class BN, subclass 136, Skilled Independent (“BNSI visa”). That country is outside Australia’s migration zone. The issue in this case is whether the Tribunal has jurisdiction to review a decision by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) to refuse Mr Naqati’s application on the basis that he does not pass the Character Test specified in s. 501 of the Migration Act 1958 (“Act”). I have decided that it does not and gave my decision and oral reasons for it at the hearing. Mr Naqati, who was assisted by Ms Mantoo, asked for written reasons at the conclusion of that hearing. As the review of the Minister’s decision does not relate to Mr Naqati in his capacity as a person who has applied for or been refused a protection visa, I do not consider that s. 501K has any application.
THE ISSUES
Whether or not the Tribunal may consider Mr Naqati’s application depends on whether or not he is entitled to make an application to this Tribunal at all. The answer to that question depends on whether Mr Naqati would have been entitled to seek review of the decision to refuse his application for a visa had the decision been made under either Part 5 or 7 of the Act on a ground other than the ground on which it was in fact made i.e. on a ground other than his failing to pass the character test (s. 500(3)). If he would be entitled to do so, he may apply to the Tribunal for review of the decision to refuse him a subclass 136 visa on the basis that he has not passed the character test. If he would not be entitled to do so, he may not. I have decided that he would not be entitled to apply under either Part 5 or 7.
BACKGROUND
Mr Naqati has resided in Australia. Between 1999 and 2001, he studied at the School of Information Technology at the Swinburne University. Earlier, on 27 June 1997, he applied for a protection visa indicating that he was unable to obtain the protection of the Indian Government and was unable to return to India for fear of persecution. His application for a protection visa was refused and that decision was affirmed by the Refugee Review Tribunal (“RRT”). An appeal to the Federal Court was dismissed.
Mr Naqati left Australia on 14 July 2001 on an Indian passport and returned to India where he now lives. A few months after his return, he applied for a BNSI visa. He lodged his application on 12 December 2001 by sending it to the Adelaide office of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”). This accorded with the requirements of item 1128C(3)(a) of the Migration Regulations 1994 (“Regulations”). It provides that an applicant for the visa must make the application in Australia but may not be present in the country.
On 5 October 2002, an officer of the Department, advised Mr Naqati that his application was “… likely to be successful subject to the decision maker being satisfied that … [he was] entitled to a visa.” The officer asked him to provide further information. Mr Naqati remained in India. This was consistent with the requirements of criterion 136.411 of Schedule 2 of the Regulations, which provides that the visa may only be granted when the recipient is off-shore.
On 21 November 2002, the Department again wrote to Mr Naqati. This time, an officer told him that the respondent, the Minister might refuse to grant a visa because he did not pass the Character Test specified in s. 501 of the Act. The basis of the possible refusal was Mr Naqati’s alleged failure to reveal the basis of his debt to the Commonwealth when he applied to extend his stay in Australia. Again, the officer asked him to provide further information if he wished to do so.
Mr Naqati gave further information on 7 January 2003. Further correspondence took place between the Department and Mr Naqati. It regarded the basis of his claim for a protection visa and Mr Naqati’s later statement that he worked for the Indian Government as a computer specialist. Mr Naqati responded on 12 October 2003 that his case relating to his claim for asylum was “out of context to … [his] migration case”; the Indian Government had not been economically strong enough to provide security to every citizen; his claim had been based on intimidation of his family by an extremist/terrorist organisation in order to get him back to Kashmir; and he had feared persecution even if his fear was perhaps as a result of paranoia or a feeling of insecurity and even though he has told the RRT that he has never been persecuted or even questioned by the Indian authorities.
On 25 May 2004, a delegate of the Minister refused Mr Naqati’s application for a BNSI visa on the basis that he did not pass the Character Test. On 5 July 2004, Mr Naqati applied to the Tribunal for review of the decision.
CONSIDERATION
The source of the Tribunal’s jurisdiction
Section 25 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) is fundamental to any consideration of the Tribunal’s jurisdiction to review a decision. It begins with the general statement that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment (AAT Act, s. 25(1)(a)). At the same time, the Tribunal is given power to review any such decisions (AAT Act, s. 25(4)). The general powers of the Tribunal are found in other provisions of the AAT Act but any enactment may modify the operation of any particular provision of the AAT Act (AAT Act, s. 25(3)).
Section 27(1) of the AAT Act provides that:
“Where this Act or any other enactment … provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons … whose interests are affected by the decision.”
Although the words of s. 27 appear to entitle any person to make an application if his or her interests are affected by a decision their breadth is qualified by their opening words. Just as s. 25 draws attention to the enactment providing that an application may be made to the Tribunal, so too does s. 27. Section 27(1) is quite clear in providing that it is only if that enactment provides that an application may be made by a person whose interests are affected by the decision, that an application may actually be made.
Who may apply for review of a decision to refuse a visa to a person on the basis of failure to pass the Character Test ?
In this case, the effect of ss. 25 and 27 is that regard must be had to s. 500 of the Act because that deals with review by the Tribunal. Section 500(1)(b) provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s. 501. Section 500(3) narrows the right to seek review when the decision is made in respect of a person in Australia’s migration zone:
“A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) … unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground”.
I note that a decision made under s. 501 is not reviewable under either Part 5 or Part 7. That is the effect of s. 500(4). It is self evident from the terms of Parts 5 and 7 and also from s. 500(3).
The delegate’s decision refusing Mr Naqati his visa is only reviewable if I first am able to find a provision in either Part 5 or Part 7 that would entitle him to seek review if the decision had been made under one of those Parts rather than under s. 501.
Part 7: review of decisions by the Refugee Review Tribunal
Part 7 of the Act is concerned with review of protection visa decisions by the Refugee Review Tribunal (“RRT”). A BNSI visa is not a protection visa. Therefore, an application cannot be made to the RRT under that Part in relation to the decision to refuse to grant it. Consequently, Mr Naqati would not have been entitled to make an application to the RRT regardless of the ground on which it was refused.
Part 5: review of decisions by the Migration Review Tribunal
Part 5 is concerned with review of decisions by the Migration Review Tribunal (“MRT”). Section 338 first sets out those decisions that are MRT-reviewable decisions. Section 347 then goes on to set out who may make an application while s. 348 sets out the circumstances in which the MRT must review MRT-reviewable decisions. As the MRT is a tribunal created by statute, it necessarily follows that its jurisdiction is limited to reviewing MRT-reviewable decisions.
What are the relevant provisions of s. 338 in this case? I will set each one out in so far as it is relevant to Mr Naqati. I will then consider whether Mr Naqati could have made an application under it to the MRT had the decision to refuse his application for a visa been made on a ground other than his failing the Character Test under s. 501. If it could have been reviewed under any one of the provisions, it would have been reviewable under Part 5 and so will be reviewable by the Tribunal. I will deal with each of the substantive provisions of s. 338. I note that s. 338(1) provides that a decision is an MRT-reviewable decision unless the Minister has issued a conclusive certificate, the decision is an RRT-reviewable decision or the decision is to refuse to grant, or to cancel, a temporary safe haven visa. None of those exceptions applies in this case.
Section 338(2) provides:
“A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a)the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c)the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; and
(d)…”
To come within this provision, the decision must relate to a visa that can only be granted while the applicant for that visa is in the migration zone. The expression “migration zone” is defined in s. 5(1). A BNSI visa can only be granted when the applicant for that visa is outside the migration zone. Therefore, the decision made to refuse Mr Naqati a BNSI visa cannot be a decision that could have been reviewed by the MRT under s. 338(2).
Section 338(3) provides:
“A decision to cancel a visa held by a non-citizen who is in the migration zone
at the time of the cancellation is an MRT-reviewable decision unless the decision:
(a)is covered by subsection (4); or
(b)is made at a time when the non-citizen was in immigration clearance;
(c)was made under subsection 134(1), (3A) or (4) or section 501.”
To come within this provision, the decision must be a decision to cancel a visa while the applicant for that visa is in the migration zone. The decision that I am considering was a decision to refuse Mr Naqati a BNSI visa. Therefore, it does not come within the first requirement. I do not accept Mr Naqati’s submission that the decision was, in substance, a decision to cancel his visa. He bases that on the Department’s indication that his visa his application was “… likely to be successful …”. The letter of 5 October 2002 in which that statement was no more than an indication of what was likely to happen. It was not an indication of what had happened. Even as an indication of what was likely to happen, the Department qualified it by saying that the likelihood was “subject to the decision maker being satisfied that … [he was] entitled to a visa.”
As for the second requirement in s. 338(3), Mr Naqati was in India and so outside the migration zone. Therefore, the decision made to refuse Mr Naqati a BNSI visa cannot be a decision that could have been reviewed by the MRT under s. 338(3).
Section 338(3A) provides:
“A decision under section 137L not to revoke the cancellation of a non-citizen’s visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.”
Section 137L is concerned with a decision to revoke the cancellation of a decision. It does not extend to a decision to refuse a visa as has happened in Mr Naqati’s case. Therefore, the decision made to refuse Mr Naqati a BNSI visa cannot be a decision that could have been reviewed by the MRT under s. 338(3A).
Section 338(4) provides:
“The following decisions are MRT-reviewable decisions:
(a)a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal;
(b)a decision to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation.”
This provision applies to bridging visas. A BNSI visa is not a bridging visa. Therefore, it would not have authorised the MRT to review the decision to refuse Mr Naqati’s visa.
Section 338(5) provides:
“A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b)the non-citizen, as required by a criterion for the grant of a visa, was sponsored or nominated by:
(i) ….
(ii) …
(iii) …
(iv) …
(v) …”
A decision is an MRT-reviewable decision only if it satisfies both ss. 338(5)(a) and (b). Taking s. 338(5)(a) first, I note that criterion 136.411 of the primary criteria set out in Schedule 2 to the Regulations in relation to a BNSI visa provides that the applicant for that visa must be “outside Australia” when it is granted. In view of that criterion, it follows that a BNSI visa can not be granted while Mr Naqati is in Australia. For the reasons that I gave in Re VAS and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 939, 18 September 2003 at [16] to [21], this means that Mr Naqati could not be granted that visa while he was “in the migration zone”. He meets the requirements of s. 338(5)(a) of the Act.
Mr Naqati must also meet those in s. 338(5)(b) if the decision to refuse his visa were to be reviewable by the MRT under s. 338(5). Mr Naqati does not meet that provision as his application for a visa was not sponsored or nominated and nor is there any requirement in the criteria that it be sponsored or nominated.
It follows that the MRT could not have reviewed the decision to refuse Mr Naqati’s visa under s. 338(5) had it been made on another ground.
Section 338(6) provides:
“A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b)a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and
(c)a parent, spouse, child, brother or sister of the non-resident is an Australian resident or an Australian permanent resident.”
The effect of the provision is that if a decision is to be reviewable by the MRT, it must be a decision relating to a person who has been an Australian permanent resident and who has Australian relations as specified. Mr Naqati has not been an Australian permanent resident and does not, on the evidence, have any Australian relations.
It follows that the MRT could not have reviewed the decision to refuse Mr Naqati’s visa under s. 338(6) had it been made on another ground.
Section 338(7) provides:
“A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b)a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the non-citizen; and
(c)particulars of the relative concerned are in the application.”
A BNSI visa permits its holder to come to Australia to reside. It is not a visitor’s visa of the sort referred to in s. 338(7). Again, Mr Naqati has not claimed any Australian relations and again it follows that the MRT could not have reviewed the decision to refuse Mr Naqati’s visa under that provision had the decision been made on another ground.
Section 338(7A) provides:
“A decision to refuse to grant a non-citizen a permanent visa is an MRT-
reviewable decision if:
(a)the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b)the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.”
The decision refusing Mr Naqati’s BNSI visa meets the requirements of s. 338(7A)(a) because he is a non-citizen and he applied for the visa when he was outside the migration zone. He does not meet those of s. 338(7A)(b). That is because a BNSI visa can only be granted while the applicant is outside the migration zone. It is not a visa that can be granted when the applicant is either in or outside the migration zone.
It follows that the MRT could not have reviewed the decision to refuse Mr Naqati’s visa had it been made on another ground.
Section 338(8) provides:
“A decision under section 93, as to the assessed score of an applicant for a visa is an MRT-reviewable decision if:
(a)the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b)the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i)…
(ii)…
(iii)…
(c)the Minister had not refused to grant the visa.”
Section 93 requires the Minister to make an assessment by giving the applicant for a visa the prescribed number of points for each prescribed qualification that has been satisfied. The delegate’s decision to refuse Mr Naqati a BNSI visa is not a decision regarding an assessment of the points relating to his qualifications.
It follows that the MRT could not have reviewed the decision to refuse Mr Naqati’s visa under s. 338(8) had it been made on another ground.
Section 338(9) provides that a decision prescribed for the purposes of that sub-section is an MRT reviewable decision. A decision refusing a BNSI visa or a decision encompassing such a decision has not been prescribed.
Mr Naqati’s further submissions
Mr Naqati submitted that I should have regard to the fact that he did not receive the post containing the decision record until after 25 June 2004. This would be relevant on an application for an extension of time. Before it is relevant to consider any such application, the Tribunal must have jurisdiction to review the decision. It does not have that jurisdiction.
Mr Naqati also submitted that his BNSI visa was refused because he had applied for and been refused a visa. As they were closely related, he should be given the opportunity to have the decision to reviewed. If Mr Naqati was referring to the decision to refuse him a protection visa, the Tribunal has no power to review that particular decision. It is within the jurisdiction of the Refugee Review Tribunal (“RRT”). It has already reviewed it and affirmed the decision. If Mr Naqati was referring to the decision to refuse him a BNSI visa, I have already set out my reasons for concluding that the Tribunal cannot review it. The fact that he has been refused a protection visa on an earlier occasion does not alter that conclusion.
Mr Naqati said that he had paid the application fee to the Tribunal. He was entitled to receive a benefit in return for that fee. Payment or non-payment of a fee is irrelevant in deciding whether or not the Tribunal has jurisdiction. Payment of a fee does not “purchase” anything other than the right to lodge an application. In any event, payment of the fee has been waived. Had it been found that the Tribunal did not have jurisdiction to review the decision, any fee that had been paid would have been refunded.
Decision
For the reasons I have given, I have decided that the Tribunal does not have jurisdiction to review the decision to refuse him a BNSI visa.
I certify that the forty four preceding paragraphs are a true copy of the reasons for the decision herein of
S A Forgie (Deputy President)
Signed: ...............................................................
R. Crook Associate
Date of Hearing 18 November2004
Date of Reasons 16 December 2004
For the Applicant self-representedSolicitor for the Respondent Mr Brian Wee
Australian Government Solicitor
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