Wilkins-Heeps and Minister for Immigration and Multicultural Affairs
[2001] AATA 174
•8 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/57
GENERAL ADMINISTRATIVE DIVISION )
Re ANNA WILKINS-HEEPS
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date8 March 2001
PlaceBrisbane
Decision The Tribunal determines that there is no jurisdiction to review the decision the subject of the application for review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE – immigration – visa application - whether jurisdiction existed to hear application for review.
Administrative Appeals Tribunal Act 1975 s 39
Migration Act 1958 s 501
REASONS FOR DECISION
8 March 2001 Deputy President DP Breen, Presidential Member
This was an appeal by Ms Wilkins-Heeps against the decision of the Department of Immigration and Multicultural Affairs made on 2 December 1999 to refuse Mr Heeps a Sub-Class 976 Visa pursuant to Section 501 of the Migration Act 1958.
At the Directions Hearing, Mrs Wilkins-Heeps represented herself and then engaged Messrs Grays, Solicitors of Edinburgh to act on her behalf. The respondent Minister was represented by Ms J Carrington, Departmental Advocate.
At that Directions Hearing before Deputy President Forgie, the respondent challenged the jurisdiction of the Tribunal to hear the matter. The matter was adjourned and copies of the relevant legislation were sent to the applicant's legal representatives in Scotland to assist them in addressing the jurisdictional issues. The matter was at this stage transferred to me to conduct the hearing of jurisdiction. Correspondence was sent to the applicant's representatives between July and November 2000 to arrange a suitable time for the hearing of jurisdiction to be listed. No response has been received to date.
Having complied with the obligations pursuant to Section 39 of the Administrative Appeals Tribunal Act 1975 to give parties a reasonable opportunity to present evidence and make submissions in their case, the Tribunal has proceeded to deal with the matter on the papers before it.
The power of the Tribunal to review decisions made pursuant to Section 501 of the Migration Act 1958 is contained in Section 500 and relevantly provide as follows:
"500
(1)Applications may be made to the Administrative Appeals Tribunal for review of:
(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or
(b)decisions of a delegate of the Minister under section 501; or
(c)a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
other than decisions to which a certificate under section 502 applies.
(2) A person is not entitled to make an application under paragraph (1)(a) unless:
(a) the person is an Australian citizen; or(b)the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.
(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."
For the purposes of subsection 500(3), the relevant sections in Part 5 are as follows:
"338.
…..(5)A decision to refuse to grant a non-citizen a visa is an MRT-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)the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i)an Australian citizen; or
(ii)a company that operates in the migration zone; or
(iii)a partnership that operates in the migration zone; or
(iv)the holder of a permanent visa; or
(v)a New Zealand citizen who holds a special category visa.
(6)A decision to refuse to grant a non-citizen a visa is an MRT-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, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.
(7)A decision to refuse to grant a non-citizen a visa is an MRT-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 intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the non-citizen; and
(c)particulars of the relative concerned are included in the application."
A Sub-Class 976 (Electronic Travel Authority) is a visa which cannot be granted whilst a non-citizen is within the migration zone.
Mr Heeps was not sponsored by any of the entities nominated in subsection 338(5)(b) of the Migration Act. He was not himself a permanent resident; nor were any of his relatives, as nominated by subsections (6) or (7), permanent residents or Australian citizens.
Therefore, this is not a review decision under Part 5 of the Migration Act 1958 and the Tribunal does not have jurisdiction to consider this application.
I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing On the papers
Date of Decision 8.3.01
App. Representative at Applicant in person
Directions HearingSolicitor for Respondent Ms J Carrington, Departmental Advocate
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