Sivagnanasampanthan and Minister for Home Affairs (Migration)

[2018] AATA 3523

Sivagnanasampanthan and Minister for Home Affairs (Migration) [2018] AATA 3523 (19 September 2018)

Division:GENERAL DIVISION

File Number:          2018/2778

Re:Bhahirathan Sivagnanasampanthan

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 September 2018

Place:Sydney

The Tribunal does not have jurisdiction to hear the application of Mr Bhahirathan Sivagnanasampanthan made on 21 May 2018.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – whether the Tribunal has jurisdiction to determine application for review – Tribunal may only review decisions in which jurisdiction has been conferred by enactment – delegate’s decision reviewable under Part 5 of the Migration Act – whether application for review made in accordance with conditions specified by the Migration Act – visa application lodged outside the migration zone –legislative requirement for applicant’s Australian citizen or permanent resident relatives who have standing to apply for review not satisfied – application for review not properly made – no jurisdiction to hear application

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25

Migration Act 1958 (Cth) ss 347, 338, 500, 501

REASONS FOR DECISION

Dr L Bygrave, Member

19 September 2018

INTRODUCTION

1. The applicant, Mr Bhahirathan Sivagnanasampanthan, is a citizen of Sri Lanka who resided in Australia from 2007 to 2015.

2. Mr Sivagnanasampanthan was granted a partner (residence) visa on 29 April 2011. He departed Australia on 7 October 2015.

3. On 18 April 2016, Mr Sivagnanasampanthan applied for a return (residence class BB) visa (the visa) while he was outside Australia.

4. Pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Migration Act), a delegate of the Minister for Home Affairs (the Minister) decided on 24 April 2018 to refuse to grant Mr Sivagnanasampanthan the visa on the basis that he did not pass the character test.

5. On 21 May 2018, Mr Sivagnanasampanthan applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the Minister’s decision.

6. Mr Sivagnanasampanthan is currently residing in New Zealand.

7. On 23 July 2018, the Minister advised the Tribunal that an Interlocutory hearing was required to consider whether the Tribunal had jurisdiction to hear the application made on 21 May 2018.

8. The Minister’s legal representative filed written submissions on 17 August 2018.

9. The legal representative for Mr Sivagnanasampanthan filed written submissions on 22 August 2018 and 23 August 2018.

10. The Tribunal held an Interlocutory hearing on 22 August 2018.

    JURISDICTION OF THE TRIBUNAL

11. These proceedings relate to whether the Tribunal has jurisdiction to hear the matter under review. The Tribunal has no general power to review decisions; it may only review decisions in relation to which jurisdiction has been conferred on it by enactment: section 25 of the Administrative Appeals Tribunal Act 1975 (Cth).

12. Section 500(1)(b) of the Migration Act provides for applications to be made to the Tribunal for review of decisions made by a delegate of the Minister in exercising the power conferred by section 501. However, in accordance with section 500(3) of the Migration Act:

    A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) 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. [emphasis added]

13. This means the Tribunal only has jurisdiction to review a decision if the decision is reviewable under Part 5 or Part 7 of the Migration Act and is made on a ground other than the ground that the applicant does not satisfy the Minister (or his delegate) that they satisfy the character test.

    Is the decision reviewable under Part 5 or Part 7 of the Migration Act?

14. The decision by the Minister’s delegate on 24 April 2018 was not to refuse an application for a protection visa and so I am satisfied the decision is not reviewable under Part 7 of the Migration Act.

15. A decision is reviewable under Part 5 of the Migration Act if the decision is of a type described in section 338 of the Migration Act.

16. In written submissions, the Minister’s legal representative submitted that the facts of the applicant were consistent with section 338(6) of the Migration Act; that is:

    …the applicant was outside of the migration zone when he both made the application for the visa and was refused the visa, and therefore the visa could not have been granted to the applicant in the migration zone, and because it was a requirement of the visa that he was a holder of a permanent visa, the requirements of s 338(6)(a) and (b) are met….

    [T]he applicant appears to have Australian citizen or permanent resident children [and so] the requirement in s 338(6)(c) also appears to be met.[1]

    [1] Respondent’s submissions dated 17 August 2018, paragraphs 14 and 15.

17. These facts were not disputed by Mr Sivagnanasampanthan’s legal representative at the Interlocutory hearing.

18. Based on the information before the Tribunal, I am satisfied the decision by the Minister’s delegate on 24 April 2018 was a reviewable decision under Part 5 of the Migration Act because it meets the criteria in section 338(6).

    Was the applicant’s application to the Tribunal properly made?

19. Section 347(2) of the Migration Act sets out that an application for review of Part 5 reviewable decisions covered by section 338(6) may only be made by the relative referred to in the relevant subsection; that is, a parent, spouse, de facto partner, child, brother or sister of the applicant who is an Australian citizen or an Australian permanent resident: see section 338(6)(c).

20. The Minister’s legal representative submitted that, as Mr Sivagnanasampanthan made the application to the Tribunal himself on 21 May 2018, and the application was not made by a relative described in section 338(6)(c), the application for review was not properly made in accordance with section 347 of the Migration Act.

21. Counsel for Mr Sivagnanasampanthan contended that the right of review provided by sections 500(1)(b) and 500(3) of the Migration Act is remedial legislation and the phrase ‘would be entitled to seek review of this decision’ in section 500(3) should be construed broadly and any ambiguity should be resolved in Mr Sivagnanasampanthan’s favour.[2] Counsel further submitted that Mr Sivagnanasampanthan has to establish he has standing under section 500, not section 347, of the Migration Act.[3]

    [2] Applicant’s submissions filed on 22 August 2018, paragraphs 4 and 5.

    [3] Applicant’s submissions filed on 22 August 2018, paragraph 7.

22. As the decision by the Minister’s delegate on 24 April 2018 meets the criteria in section 338(6) of the Migration Act, I am satisfied the applicant ‘has standing’ in relation to making an application for review to the Tribunal. However, the wording in section 347(2)(c) of the Migration Act is unambiguous; it states ‘An application for review may only be made by… the relative referred to in [subsection 338(6)]’ [emphasis added].

23. The application made to the Tribunal on 21 May 2018 names Mr Bhahirathan Sivagnanasampanthan as the applicant. I am satisfied this application was made by Mr Sivagnanasampanthan, and not a parent, spouse, de facto partner, child, brother or sister of Mr Sivagnanasampanthan who is an Australian citizen or an Australian permanent resident.

24. I therefore find that the application for review to the Tribunal made on 21 May 2018 was not properly made in accordance with section 347 of the Migration Act.

    DECISION

25. For the reasons above, the Tribunal does not have jurisdiction to hear the application of Mr Sivagnanasampanthan made on 21 May 2018.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 19 September 2018

Date(s) of hearing:	22 August 2018
Counsel for the Applicant:	David Godwin
Solicitors for the Applicant:	Brett Slater
Solicitors for the Respondent:	Will Sharpe