Viengkham and Minister for Home Affairs (Migration)
[2019] AATA 636
•4 April 2019
Viengkham and Minister for Home Affairs (Migration) [2019] AATA 636 (4 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6964
Re:Daruny Viengkham
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:4 April 2019
Place:Sydney
Because the Applicant lacks standing to bring this application before the Tribunal the application for an extension of time is refused.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
EXTENSION OF TIME – resident visa refusal – character test not satisfied – issue of standing considered – spouse of applicant does not have standing to seek review – review applicant offshore at time of review application – applicant does not have standing to seek review – extension of time refused
LEGISLATION
Migration Act 1958 (Cth)
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Chris Puplick AM, Senior Member
4 April 2019
EXTENSION OF TIME APPLICATION
This is an application for an extension of time in which Ms Daruny Viengkham (the Applicant) may lodge an appeal against a decision by the Minister’s delegate to refuse a subclass 15BB (return resident visa) to her husband Finau Hakohako Tafokitau.[1]
[1] The basis of the original refusal decision was that the Delegate considered that Mr Tafokitau constituted a threat to the Australian community because of his past and current criminal activities or associations.
The original decision was made on 5 July 2018 under s. 501(1) of the Migration Act 1958 (the Act). On 17 October 2018 the Applicant (acting on behalf of her husband) lodged an application for a review of that decision with a request that an extension of time be granted for its lodgement outside the statutory 28 days as provided in the Act.
The request was for an extension to 24 October 2018.
The Tribunal (differently constituted) heard this application on 8 November 2018 and granted an extension of time to 24 October 2018.
The Tribunal Registry advised the Applicant of the success of their application for an extension of time and included with that (as requested) a form for lodgement fee reduction associated with the application. By oversight the Registry failed to send a copy of the application form which the Applicant needed to complete for the processes of the Tribunal to go ahead.
On 19 November 2018 the Applicant returned the Fee Reduction form with supporting evidence. However the Tribunal Registry then advised that the matter had been “finalised” on the basis that the Applicant had failed to return an application form as required by the specified date of 24 October 2018.
This was an error on the part of the Tribunal as the applicant had not been informed properly of the necessity to lodge such a form and provided with a copy of it.
The matter returned to the Tribunal via a fresh application for an extension of time which was lodged on 26 November 2018.
On 27 March 2019 this Tribunal heard the application and as a result of arguments put to it, granted parties until close of business on Friday 29 March 2019 to make further submission in writing on matters raised in that hearing.[2]
[2] The matter in issue was whether or not refusal decisions under s 501(1) of the Act preclude an applicant from applying for all other forms of visas. Such a decision does not constitute such a prohibition, but this matter is rendered otiose by the other issues raised for prior determination.
Both parties responded by 29 March 2019 allowing the Tribunal to move forward with consideration of the extension of time application.
RELEVANT MATTERS
There are two matters which must now be recorded as they are critical in the determination of this application.
(1)The Application was made by and stands in the name of Ms Daruny Viengkham who is the wife of the subject of the visa refusal. She is an Australian citizen.[3]
(2)At the time of the lodgement of the application, the subject of the visa refusal, Mr Tafokitau was living in his home country of Tonga[4] where he is still resident.
[3] Delegate’s original decision at paragraph [20].
[4] Travel record appended to Respondent’s Written Submissions (dated 29 March 2019).
CONSIDERATION
In the normal course of events the Tribunal would proceed to consider the application for an extension of time against the criteria set out in Hunter Valley[5] and other cases to determine the merits of the application. It would consider matters such as the reasons for the delay in lodging an extension of time application; the prejudice to parties and the prospects of ultimate success at the final merits review stage.
[5] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
However to undertake such an exercise would be futile because the Respondent has raised two matters related to the application which must, in conformity with the requirements of the Act, cause the application to fail.
The matters relate to each of the principals in the application.
Ms Daruny Viengkham
Ms Viengkham is the applicant in this matter.
Section 500 of the Act provides:
Review of decision
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
…………
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
…………..
(3) 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.
This makes clear that the jurisdiction of the Tribunal in reviewing decisions is limited to those made under Parts 5 and 7 of the Act, but not beyond. Part 7 of the Act is not relevant because it deals with the issue of protection visas.
Thus the question in issue is whether or not the application is reviewable under Part 5 of the Act.
The relevant section of Part 5 is section 338 which is a definitional clause setting out the definition of what constitutes a reviewable decision. Specifically:
s. 338: Definition of Part 5-reviewable decision
…………..
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
Appeal rights are further qualified by the operation of s. 347(2)(a) as follows:
s. 347: Application for review of Part 5-reviewable decisions
………….
(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;
The logic of all this is as follows:
(i)an application for review can be made if the original decision was made under s. 501; but
(ii)where a decision is made under that section it must be a decision that itself was made under Parts 5 or 7 of the Act (Part 7 not being relevant here); and in turn,
(iii)there are limits to the decisions which are appealable under Part 5, one of which is that the application itself must be made by the non-citizen who is the subject of the reviewable decision.
Ms Viengkham is neither the subject of the review, nor in any event, is she the relevant non-citizen. It thus follows that she does not have the necessary standing to bring the appeal in this first instance.
Mr Tafokitau
While Ms Viengkham is precluded from bring this application under s 338(2) of the Act, Mr Tafokitau clearly qualifies as the affected non-citizen subject. However in his case s. 347(3) of the Act now comes into operation. It provides:
(3) If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
Evidence before the Tribunal establishes that, at the relevant time – the date of the application (October 2018), Mr Tafokitau was not physically present in the migration zone, he was in Tonga.
As such he is precluded from lodging an application until such time as he is onshore.
How he will ever get onshore to lodge such an application is a moot point and not one that the Tribunal can consider at this stage other than to think that Joseph Heller might well have had such a situation in mind when he wrote Catch 22.[6]
[6] A "Catch-22" is a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.
CONCLUSION
This leads inevitably to the following conclusions
(i)Ms Viengkham is precluded from bringing this matter forward because she is not the non-citizen subject of the original decision, and
(ii)Mr Tafokitau is precluded from bringing the matter forward because he was not, at the relevant time, physically present in the migration zone.
It is more than unfortunate that these matters, all of which were in place at the time of the original application were not bought to the attention of the Tribunal before this date. Leaving aside the waste of the Tribunal’s scarce time which could have been better utilised, the impact upon both the Applicant and her husband of dragging this matter out for some 18 months when it never had any prospect of success is not a matter to be put aside lightly. The time, in effect wasted, on the part of the Applicant in preparing her case and in attending and participating in Tribunal proceedings, added to which is the emotional and physical strain and impact upon her, has not been inconsiderable and she has every reason to feel ill-used by the Australian government.
DECISION
Because the Applicant lacks standing to bring this application before the Tribunal the application for an extension of time is refused.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 4 April 2019
Date(s) of hearing: 27 March 2019 Date final submissions received: 29 March 2019 Advocate for the Applicant: Mr F Razzaghipour, Farnam Immigration and Language Services Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Standing
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Judicial Review
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Procedural Fairness
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