Tran and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 2395
•7 August 2023
Tran and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2395 (7 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2786
Re:Nhung Thi Hong Tran
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D Cosgrave
Date:07 August 2023
Place:Brisbane
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
.................................[SGD].....................................
Member D Cosgrave
Catchwords
PRACTICE AND PROCEDURE - MIGRATION –whether the Tribunal has jurisdiction to review a refusal of a section 501(1) decision – Return Residence) (Class BB) (Subclass 155) visa – whether the decision is a Part 5 Reviewable Decision – whether requirements for making application have been met – no jurisdiction found
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Gajjar v Minister for Immigration and Citizenship, unreported decision - Matter No B72 of 2012
Trung Tien Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, unreported decision - Matter No C1 of 2022 (High Court of Australia, Steward J, 22 July 2022).
Cooper Brookes (Wollongong) Pty. Ltd. v Federal Commissioner of Taxation [1981] HCA 26
Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
Ismail v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4689
REASONS FOR DECISION
Member D Cosgrave
07 August 2023
BACKGROUND
The application relates to a decision of a delegate of the Minister under S.501 of the Migration Act 1958 (Cth) (the Act) to refuse an application for a Subclass 155—Five Year Resident Return visa (the Visa) to Mr Thanh Xuan Le (‘the Decision Under Review’).
Mr Le applied for the Visa on 25 October 2022.
On 11 April 2023[1], a delegate of the Minister refused to grant the Visa, pursuant to S.501(1) of the Act.
[1] G-Documents, page 10.
Mr Le is a former permanent resident whose previous Subclass 155 visa had expired when he last departed Australia on 8 October 2022[2]. He has remained outside of Australian since his last departure, including at the time of the decision to refuse the Visa.
[2] G-Documents, page 143.
Mr Le’s de facto partner, Ms Tran, who is an Australian citizen, lodged the current application for review on 30 April 2023.
The Tribunal conducted an interlocutory hearing addressing the Tribunal’s jurisdiction in this matter on 19 July 2023.
LEGISLATIVE FRAMEWORK
Section 500(1)(b) of the Act provides for applications to be made to the Tribunal for the review of decisions made by a delegate of the Respondent exercising the power conferred by S.501 of the Act
Section 500(3) of the Act qualifies and limits S.500(1):
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.
Part-7 reviewable decisions are defined under section 411 of the Act. The Decision Under Review does not concern an application for a Protection Visa, and therefore an assessment of Part-7 reviewable decisions of the Act is unnecessary.
Part 5-reviewable decisions are defined under section 338 of the Act. Specifically, S.338(6) of the Act provides:
(6) A decision to refuse to grant a non-citizen a visa is a Part 5-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, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.
Section 338(7A) of the Act provides:
(7A) A decision to refuse to grant a non-citizen a permanent visa is a Part 5 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.
Section 347(1) of the Act specifies what an application for review of a Part 5-reviewable decision requires.
Section 347(2) of the Act sets out who can apply for a review of a Part 5-reviewable decision:
(2) An application for review may only be made by:
(a) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non-citizen who is the subject of that decision; or
…
(c) if the Part 5-reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
…
…
(3A) If the Part 5-reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
APPLICANT’S CONTENTIONS
The Applicant contends that either:
(a)The Decision Under Review would be a Part 5-reviewable decision pursuant to S.338(6) of the Act[3]; or
(b)The Migration Amendment (2022 Measures No. 1) Regulations 2022 (the 2022 Amendments) are invalid.
A. The Decision Under Review would be a ‘Part 5-reviewable decision’ pursuant to S.338(6) of the Act
[3] if the decision had been made on another ground: section 500(3) of the Act.
The Applicant contends that the delegate’s decision is a Part 5-reviewable decision on the basis of S.338(6) of the Act, rather than S.338(7A) of the Act. As best as the Tribunal understands the Applicant’s submissions, is as follows:
(a)At the time of the decision to refuse Mr Le's Visa, the visa could only have been granted to him in Australia if he were in Australia at that date and had entered Australia using another visa[4].
(b)He could not enter Australia since as he did not hold another visa that would have permitted him to do so before the decision was made[5].
(c)The actual visa that he had applied for was not one which could have been granted to him in Australia[6].
(d)If S.338(6) applies to the decision, S.347(2)(c) stipulates that an application for review may only be made by one of the class of relatives – in this case, Ms Tran as his spouse[7].
[4] Applicant’s 15 June 2023 submission, at [15].
[5] Ibid.
[6] Ibid.
[7] Section 338(6)(c) of the Act.
B. The 2022 Amendments are invalid.
The Applicant alternatively contends that, if the Respondent's interpretation of the relevant provisions is correct and S.338(7A) of the Act is applicable, then the 2022 Amendments are invalid.
This argument, as the Tribunal comprehends it, has two limbs:
(a)The first limb:
(i)The 2022 Amendments, by changing Cl.155.411 of the Regulations, had the effect of restricting review rights. Section 338(7A) of the Act operates in conjunction with S.347(3A) of the Act. Section 347(3A) of the Act requires non-citizens to be physically present in the migration zone both when the decision is made and when the application for review is made.
(ii)The required location of the visa applicant at the time of the granting of the visa are set out in Cl.155.411, which says:
155.411
The applicant may be in or outside Australia, but not in immigration clearance, at the time of grant.
(iii)Section 347(3A) of the Act consequently further restricts Cl.155.411 of the Regulations in terms of an applicant being outside Australia.
(iv)Characterising this further restriction on Cl.155.411 as taking away previously existing appeal rights that were applicable to S.338(6) of the Act implies that the 2022 Amendments are not ‘carrying out or giving effect to’ the Act and should be treated as invalid on the basis of being arbitrary, capricious or irrational and creating an effect not intended by the legislator.
(b)The second limb:
(i)The 2022 Amendments should be found to be invalid because the rule-maker misunderstood the effect they would have on existing appeal rights and therefore failed to give reasonable consideration to whether it was appropriate to undertake consultation concerning that effect before making the amendment and therefore failed to comply with the statutory direction in s 17(1) of the Legislation Act 2003.
RESPONDENT’S CONTENTIONS
A summary of the Respondent's main argument is that:
(a)The Decision Under Review is reviewable pursuant to S.501(1) of the Act on the basis that it is a Part 5-reviewable decision pursuant to S.338(7A) of the Act because:
(ii)The Visa relates to a permanent visa;[8]
(iii)Mr Le applied for the Visa while outside the Migration Zone; and
(iv)The Visa can be granted while Mr Le is either in or outside the Migration Zone.
(b)The person with the right of review in these circumstances is the non-citizen who is subject of the decision (in this case, Mr Le); section 347(2)(a) of the Act. Mr Le is not the Applicant in this matter, Ms Tran is, and therefore the application must be dismissed.
(c)In any event, an application for review cannot be made by a person unless they are physically within the Migration Zone at the time when the decision was made and when the application for review is made; Section s37(3A) of the Act. Mr Le is not within the Migration Zone and does not have the ability to return.
[8] Migration Regulations 1994 (Cth), cl.155.511.
Were the Tribunal to adopt the Respondent’s submission that S.338(7A) of the Act is the correct category of Part 5-reviewable decision in this matter, the matter would not have jurisdiction because:
(a)Mr Le made the application for the Visa when he was outside Australia[9].
(b)The Visa’s various criteria are described in the Migration Regulations which stipulates it is “a visa that could be granted while the non-citizen is either in or outside the migration zone"[10].
(c)Mr Le is the non-citizen who is the decision’s subject, not Ms Tran.
(d)The combined effect of S.347(2)(a) and S.500(3) of the Act is that Ms Tran is not authorised to seek to review the Decision Under Review.
(e)Only Mr Le, the “non-citizen who is the subject of that decision", holds the right to appeal the Decision Under Review.
[9] Section 338(7A)(a) of the Act.
[10] Section 338(7A)(b) of the Act.
It follows from this argument that Ms Tran’s application to appeal the Decision Under Review is not properly made in accord with S.347(3A) and S.348 of the Act.
The Respondent answers the question ‘Why S.338(7A) rather than S.338(6)?’ with the following argument:
(a)Section 338 literally defines what decisions are Part 5-reviewable decisions.
(b)Section 338(6)(a) provides that: “a decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if... the visa is a visa that could not be granted while the non-citizen is in the migration zone.”
(c)Similar formulations occur throughout S.338, with the variables addressing whether the non-citizen is in the migration zone or not, whether it involves cancelling or refusing a visa (or not revoking a cancellation) and where the non-citizen applied from.
(d)The visa in this matter could be granted “while the non-citizen is in the migration zone” and as described in Cl.155.411 of the Regulations: “the applicant may be in or outside Australia, but not in immigration clearance, at the time of grant[11]”.
(e)Section 338(6) of the Act refers to visas that ‘… could not be granted while the non-citizen is in the migration zone’. This phrasing conflicts with Cl.155.411 of the Regulations[12].
(f)Consequently, S.338(6)(a) of the Act is not available as a ground for making the delegate’s decision in this matter reviewable as a Part 5-reviewable decision.
[11] Migration Regulations 1994 (Cth), Cl.155.411 and s.338(7A)(b) of the Act.
[12] Ibid.
The Respondent addresses the Applicant’s contention that the 2022 Amendments are invalid as follows:
“The Applicant’s argument that the amending regulation is invalid does not arise. That is because it is grounded in the incorrect premise that the Applicant previously had some review right by reason of s 338(6) in the past. He did not: see above. In any event, the amending regulation is plainly one within the general regulation making power in s 504(1) of the Act. The assertion (AS [29]) that the amending regulation is “based on an incorrect interpretation of the legislation” is without any basis. The assertion in AS [30] that there was a misunderstanding of the effect of the amendment on appeal rights is also without any basis. In any event, the Applicant asserts that there has been a breach of s 17(1) of the Legislation Act 2003 (Cth). That requires a rule-maker to be satisfied that there has been consultation undertaken that is “considered by the rule-maker to be appropriate”. No basis is identified to say that the rule-maker did not undertake consultation that he or she considered appropriate.”[13]
[13] Respondent’s 13 July 2023 submission, [19].
CONSIDERATION AND REASONS
The core issue before the Tribunal is whether the Decision Under Review is categorised as a Part 5-reviewable decision under S.338(7A) or S.338(6) of the Act.
The Visa Mr Le applied for allows for a visa applicant to be either in or outside of Australia at the time of the visa grant[14].
[14] Migration Regulations 1994 (Cth), cl.155.411.
This implies that S.338(6) of the Act is not applicable as it the type of visa could not be granted while the non-citizen is in the migration zone.
On the other hand, the Tribunal is satisfied that the Decision Under Review is a Part 5 – reviewable decision on the basis of S.338(7A) of the Act.
The Tribunal is further satisfied that only Mr Le is entitled to apply for review to this Tribunal, as the non-citizen who is the subject of that decision; subsection 347(2) of the Act.
Section 347(3A) of the Act mandates that an application for review of a Part 5 -reviewable decision covered by S.338(7A) of the Act may only be made by a non-citizen who:
(a)was physically present in the migration zone when the decision was made; and
(b)is physically present in the migration zone when the review application is made.
Mr Le was not present in the migration zone at either the time the decision was made or at the time when the application for review was lodged. As Mr Le also does not have a visa allowing him to return to Australia, it appears he does not have the capacity to meet S.347 of the Act’s application requirements.
A non-citizen’s failure to comply with S.347 of the Act’s application requirements where a refusal decision satisfies S.338 of the Act does not affect the refusal decision’s Part 5-reviewable decision status[15].
[15] Gajjar v Minister for Immigration and Citizenship unreported, Matter No B72 of 2012; Trung Tien Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (High Court of Australia, Steward J, 22 July 2022).
The Tribunal acknowledges that S.347(3A) of the Act consequently further restricts Cl.155.411 of the Regulations in terms of an applicant being outside Australia – but notes that S.347(3A) does not completely constrain or extinguish the requirements set out in Cl.155.411 of the Regulations.
This raises the Applicant’s contention that the 2022 Amendments are invalid because they produce an arbitrary result in this instance.
Considering this contention, the Tribunal notes Gibbs CJ’s comments at [6] in Cooper Brookes (Wollongong) Pty. Ltd. v Federal Commissioner of Taxation[16]:
“However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.”
[16] [1981] HCA 26 at [6].
The Applicant refers to Bautista v Minister for Immigration and Border Protection[17] in making this contention, averring that the Amendments arbitrarily undermined the legislative intent because they took away a review right.
[17] [2018] FCA 1114, referenced by the Applicant in their 17 July 2023 submissions.
Collier J in Bautista focused on where the consequences of legislative action may lead to absurd[18] or potentially arbitrary results[19].
[18] Ibid at [43].
[19] Ibid at [51].
The Tribunal finds that S.347(3A) of the Act further restricts Cl.155.411 of the Regulations but does not extinguish it entirely. The result may be inconvenient or unjust but is not absurd.
Section 347(3A) of the Act means that only Mr Le[20] could have applied for a review – but could only do so if he had been in Australia when the decision was made and when the review application was lodged.
[20] See Migration Act s347(2)(a).
Mr Le was not in Australia and has not met S.347(3A) of the Act’s requirements. Consequently, the Tribunal does not have jurisdiction in this matter. In summary, the incorrect Applicant applied to the Tribunal and the Tribunal does not have jurisdiction. Additionally, if Mr Le were to re-apply, the Tribunal would not have jurisdiction to hear the application.
CONCLUSION
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
.................[SGD]..................
Associate
Dated: 7 August 2023
Date of hearing: 19 July 2023 Lawyer for the Applicant: Mr. M Jones
Michael Jones SolicitorCounsel for the Respondent: Mr. N Swan
11th Floor St James’ Hall ChambersLawyer for the Respondent: Ms. Kelly
Australian Government Solicitors
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