Negahdari (Migration)

[2019] AATA 3404

Negahdari (Migration) [2019] AATA 3404 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohsen Negahdari

CASE NUMBER:  1916922

DIBP REFERENCE(S):  BCC2018/6083889

MEMBER:Joseph Lindsay

DATE:5 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2019 at 10:19am

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – invalid application – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 46A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 26 June 2019. 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 visas of various kinds, but not a decision that the visa application is invalid.

3. Section 46A of the Act states:

   46A Visa applications by unauthorised maritime arrivals

   (1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

   (a) is in Australia; and

   (b) either:

   (i) is an unlawful non-citizen; or

   (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

4. The evidence before the Tribunal indicates that the applicant is an “unauthorised maritime arrival” who is in Australia and he is an “unlawful non-citizen.” The Tribunal wrote to the applicant by letter dated 1 July 2019 indicating that it appeared that his application was not a valid application as the delegate did not accept his application and deemed it an invalid application. The applicant was advised that there is no right of merits review on an invalid application and consequently there was no decision that could be reviewed by the Tribunal. The applicant was advised that if he wished to make any comments on whether a valid application has been made he was invited to do so, in writing, by 4 July 2019. As at the time of this decision, the Tribunal has not received any response from the applicant.

5. Accordingly, the Tribunal is satisfied that the application for a Bridging E (class WE) General (subclass 050) visa made by the applicant is not a valid application. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Joseph Lindsay
   Member