Singh Rattu (Migration)

[2017] AATA 1778

Singh Rattu (Migration) [2017] AATA 1778 (10 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Susana Singh Rattu

VISA APPLICANT:  Mr Gurmail Singh Rattu

CASE NUMBER:  1712188

DIBP REFERENCE(S):  BCC2016/142868

MEMBER:Justin Meyer

DATE:10 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2017 at 3:24pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Review Applicant an eligible New Zealand citizen – Holder of a Special Category visa at the time of application

LEGISLATION

Migration Act 1958, ss 65, 338(5), 347

Migration Regulation 1994, cl 309.213, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 12 May 2017, to refuse to grant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(5) of the Act.

2. The review application was lodged with the Tribunal on 8 June 2017. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b).

4. The applicant’s representative made submissions in writing to the Tribunal on 26 June 2017 and 4 July 2017. The representative submitted that the review applicant sponsored her husband (the visa applicant) as an eligible New Zealand citizen. She held a special category visa at the time of visa application. Section 338(5)(b)(v) of the Migration Act 1958 defines a reviewable decision as one that was sponsored by a New Zealand citizen who holds a special category visa.

5. The review applicant was not the holder of a special category visa at the time of the review application, which was communicated by her representative as being due to her currently residing in India with her husband.

6. Nevertheless, the review applicant through her representative, submits that the decision is reviewable under Part 5 of the Act under s338(5) of the Migration Act 1958. It was submitted by the review applicant on 26 June 2017 that this provision: “does not refer to her immigration status at the time of the AAT application lodgement, but her status when the original visa application was sponsored as required by Subclause 309.213(1). I submit therefore that the AAT has jurisdiction to review the application under these circumstances.”

7. A ‘Natural Justice Letter’ from the Tribunal headed ‘Invitation To Comment On Validity Of Application For Review – Mrs Susana Singh Rattu’ was sent to the review applicant on 29 June 2017. It stated that in cases in which a New Zealand citizen holds a special category visa, the use of the present tense in s.338(5)(b)(v) of the Migration Act 1958 appears to impose a requirement that the sponsor need currently hold a special category visa in order for this decision to be reviewable.

8. This letter from the Tribunal noted that the review applicant is not currently the holder of a special category visa; therefore, the officer of the Tribunal was of the view that the application is not a valid application.

9. The review applicant responded on 4 July 2017 that Section 338(5)(b)(v) of the Migration Act 1958 defines a reviewable decision as one where the non-citizen was sponsored by a New Zealand citizen who holds a special category visa. It was submitted that the past tense usage of the words ‘was sponsored by’ precedes the usage of the present tense words ‘holds’, which indicates that it is the intention of the legislation that the relevant status is that at the time of being ‘sponsored’.

10. The Tribunal does not accept the review applicant’s submission that whether or not the matter is a Part 5 reviewable decision does not depend on the present status of the review applicant, but on the circumstances as they pertained before the delegate.

11. The Tribunal considers the tenses used in the accompanying subparagraphs of the provision. s.338(5)(b)(i)-(iv) are present tense requirements (“holder of”  or “operates in”). The provision with which the Tribunal is presently concerned (s.338(5)(b)(v)) is also expressed in the present tense. The preponderance of the forms of sponsorship in this aspect of the Act emphasise a requirement occurring in the present state of affairs. The provision with which we are concerned is also a present requirement.

12. The Tribunal notes that s.338(5)(b) itself refers to a possible past tense of ‘was sponsored or nominated’. Nonetheless the following present tense references indicated in s.338(5)(b)(v) mean that the decision is reviewable if the sponsor at the time of applying for the review holds a special category visa of the kind noted.

13. As the decision that is the subject of the review application is a decision covered by s.338(5), the application for review could only be made by a sponsor or nominator referred to in that subsection. In the present case, the review application was made by a person who was not the holder of a special category visa. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Justin Meyer
    Member