Wada (Migration)

[2017] AATA 153

Wada (Migration) [2017] AATA 153 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akira Wada

CASE NUMBER:  1700359

DIBP REFERENCE(S):  1111

MEMBER:Filip Gelev

DATE:2 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2017 at 5:46pm

CATCHWORDS

Migration – Cancellation – Electronic Travel Authority (Class UD) visa – Subclass 601 (Electronic Travel Authority) – Jurisdiction issue – Applicant not immigration cleared – Applicant previously employed on the same visa – No work rights – Visa cancellation prior to immigration refusal – Applicant not in Australia at time of application – Migration agent’s registration cancelled

LEGISLATION

Migration Act 1958, ss 116, 172, 338, 347

Migration Regulations 1994, Condition 8115

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 30 December 2016, to cancel the applicant’s Electronic Travel Authority (Class UD) visa under the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 9 January 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. The review applicant arrived in Australia as the holder of a visa subclass 601 (Electronic Travel Authority) on 30 December 2016. He was not immigration cleared. He was stopped by an officer of the Department of Immigration at the airport and after an interview he was given a Notice of Intention to Consider Cancellation of his visa under s.116 of the Act. This was because during the interview the applicant admitted that when he had previously been in Australia on the same visa, he had worked (24/11/2016 to 24/12/2016). The visa he held did not give him the right to work other than to engage in a business visitor activity (condition 8115). Thus, the officer formed the view that the applicant had not complied with condition 8115 of the visa.

4. The applicant advised the Department that he thought he had been granted a visa subclass 457 and could work. The officer of the Department decided to cancel the visa and did so at 14:38 on 30 December 2016. The applicant was never immigration cleared.

5. Movement records indicate that the applicant left the country at 11:57am on 31 December 2016.

6. In the Tribunal’s view, there are two reasons why it has no jurisdiction in this matter.

   Applicant was “in immigration clearance” when his visa was cancelled

7. Section 338(3)(b) of the Act provides that a cancellation decision is a Part 5 reviewable decision, that is, this Tribunal has jurisdiction to review such a decision unless the visa was cancelled at a time when the applicant was in immigration clearance.

8. Section 172(2) of the Act defines the expression “in immigration clearance”. It means, among other things, where a person is with an officer [of the Department of Immigration] and has not been refused immigration clearance. In the present case at the time of cancellation the applicant was at the airport “with an officer”. The visa cancellation decision states this: “As your visa has been cancelled you may be refused immigration clearance”. In other words, the decision shows that the applicant had not yet been refused immigration clearance when his visa was cancelled. It follows that the review applicant was “in immigration clearance” when the decision to cancel his visa was made.

   Applicant was not in Australia when he applied to the Tribunal

9. Pursuant to s.347(3) of the Act, an application for review under s.338(3) – a visa cancellation decision – may only be made by a non-citizen who is physically present “in the migration zone”, in Australia, when the application for review is made.

10. The applicant had left Australia and returned to Japan at the time when he made this application on 9 January 2017. Therefore he was not physically present in the migration zone when he made the application for review.

11. The Tribunal wrote to the applicant on 9 January 2017 to advise that it appeared that the Tribunal had no jurisdiction in this matter both because of s.338(3)(b) and because he was not in Australia when he lodged the application for review (s.347(3)).

12. The applicant’s authorised recipient responded on 10 January 2017. He explained that the review applicant thought that he had a visa subclass 457 and he did not realise he was in breach of the conditions of his visa when he worked in November and December 2016. The applicant had spent 9 years of his life in Australia. Both he and his employer had paid money to Ms Shannon Wood obtain a visa for him. Instead, Ms Wood forged a document which looked like a visa subclass 457 grant letter (issued in July 2016).

13. Further, the applicant has now realised that Ms Wood is no longer a registered migration agent. The Tribunal was provided with a copy of the decision, dated 22 April 2016, of the MARA to cancel her registration as a migration agent.  

14. The letter explained the applicant’s circumstances and implored the Tribunal to allow the applicant to return to Australia to pursue a compensation claim against Ms Wood and to resume his life in Australia.

15. While the Tribunal has considerable sympathy for the review applicant’s predicament, the Tribunal does not have inherent jurisdiction. It can only review decisions of the Department of Immigration if the criteria specified in ss.338 and 347 of the Act are met.

16. It is a matter for the review applicant to seek independent legal advice about his legal rights and about any avenues he can explore to return to Australia.

17. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Filip Gelev
    Member