Theldeniya Pasannaseela Thero (Migration)

[2023] AATA 3168

Theldeniya Pasannaseela Thero (Migration) [2023] AATA 3168 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Theldeniya Pasannaseela Thero

REPRESENTATIVE:  Mrs Damindi Dulesha Senanayake

CASE NUMBER:  2308204

HOME AFFAIRS REFERENCE(S):          BC C 2023/1262468

MEMBER:Alan McMurran

DATE:18 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2023 at 2:35pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Religious Worker stream – outside migration zone at time of lodging the review application – not Part 5-reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 9 June 2023 for review of a decision refusing the applicant a Subclass 408 (Temporary Activity) visa in the Religious Worker stream. 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 (Cth) (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 (Cth).

3. Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision is reviewable in this case if the applicant made the application for review while physically present in the migration zone[1] but is not reviewable in the circumstances of this case because at the time of lodgement of the review application with the Tribunal, the visa applicant was outside the migration zone.

   [1] Section 347(3)

   Background

4. On 4 September 2023, the Tribunal sent a natural justice letter to the applicant. The letter stated that in order to make a valid application for review, the visa applicant must have been in Australia at the time of lodgement of the application with the Tribunal on 9 June 2023. Otherwise, if not a valid application because the visa applicant was outside Australia, then the Tribunal cannot review it. The applicant was invited to respond by 18 September 2023.

5. On 5 September 2023, the applicant responded by his solicitor representative, who referred to an earlier email submission made by the solicitor on 24 August 2023. In summary the applicant’s submission stated:

   “The applicant is of the opinion that the DOHA acknowledgement letter clearly mentions that the applicant is sponsored by the Australian entity MAHASARA FOREST MONASTERY INC (ABN 79661592455). Hence it is implied that the review application includes the MAHASARA FOREST MONASTERY INC (ABN 79661592455) as the sponsor. Therefore the application is deemed to be considered as a valid application for the purpose of AAT review. Further subclass 408 applications can not be lodged without a sponsor. This visa category requires an applicant to be sponsored by an Australian entity. In all situations, any review application lodged to review a subclass 408 would be an application that is lodged by an applicant who is sponsored by an Australian entity.

   Considering all the above, we kindly request that this application be considered a valid application considering that the sponsor is an Australian entity and it remained a registered Australian entity at the time of review application lodgement therefore irrespective of the location of the applicant at the time of lodgement of the review application since the sponsor is located in Australia to allow the review application to be valid.”

6. The Tribunal has considered the submission. The Tribunal finds on the available information, which is not contested, that the visa applicant was offshore and outside the migration zone at the time of lodgement of the review application. The Tribunal finds that on its recorded lodgement date as receipted, that the application for review was lodged on 9 June 2023, at 7:25:02pm  AEST.[2] The application was accompanied by a detailed written submission from the solicitor stating that at the time of lodgement the “applicant is currently overseas (in Sri Lanka) and on a Bridging B visa allowing him to travel to and from Australia”.

   [2] Tribunal online lodgement reference number Q9D9JB

7. The application lodged for review is on behalf of the visa applicant, Rev Theldeniya Pasannaseela Thero,  a citizen of Sri Lanka. It is not an application by the sponsor or nominator, Mahasara Forest Monastery Inc which is the organisation in Australia for whom the visa applicant’s activities would be undertaken. It is for the visa applicant to meet the visa requirements in this case, not the sponsor.

8. Section 347(3) refers to Part-5 reviewable decisions relevantly covered by s 338, which in turn refers to a range of Part-5 reviewable decisions.

9. The delegate’s decision in this instance is covered by s 338(2) which requires that the visa applicant made the visa application while in the migration zone and that the decision was not made when the VA was in immigration clearance, or had been refused immigration clearance and had not subsequently been immigration cleared.

10. For its part, s 347(3) requires that at the time of making the review application, the visa applicant must be located in the migration zone.

11. The applicant does not submit that s 347(3)) is met by the applicant. The applicant submits, however, that as the visa applicant has been validly sponsored for the visa in the Religious Worker stream and that s 338(2) is met, therefore the visa application is itself nonetheless ‘valid’ because the visa could not be approved without the sponsor.

12. The Tribunal finds it cannot accept the submission as the requirement for the location of the visa applicant at the time of lodgment on review cannot be met, and which is a mandatory requirement for which there is no discretion available for the decision-maker to waive the location requirement.

13. In the circumstances therefore, the Tribunal finds that the applicant’s visa review application has not been validly made because the applicant was not in the migration zone at the date and time of lodgement, as he was required to be.

14. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Alan McMurran
    Member