ZWNG and Minister for Immigration and Multicultural Affairs (Migration)

[2024] AATA 2773

ZWNG and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 2773 (6 August 2024)

Division:GENERAL DIVISION

File Number:          2024/3017

Re:ZWNG

APPLICANT

AndMinister for Immigration and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:6 August 2024

Date of written reasons:        6 August 2024

Place:Melbourne

Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the application is dismissed because the Tribunal is satisfied that the decision is not reviewable by the Tribunal. The reason is that the applicant did not have standing to seek review.

....................[sgd]....................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is citizen of the Socialist Republic of Vietnam – applicant is off shore – respondent refused to grant Partner (Temporary)(Class UF) visa under s 501 of Migration Act – visa had sponsor – sponsor applied for review of delegate’s decision – regulation changes in relation to review of this class of visa – review must now be made by applicant not sponsor – s 500(3) of Act found to condition the class of persons who can seek review – tribunal finds no jurisdiction to review decision in this case – no ability to join the visa applicant where there is no valid application – application dismissed for want of jurisdiction – oral decision – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023 (Cth)

Cases
Assi v Minister for Immigration [2005] FMCA 260

Heffernan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 626

REASONS FOR DECISION

Senior Member D. J. Morris

6 August 2024

BACKGROUND

1. On 24 April 2024, a delegate of the then Minister for Immigration, Citizenship and Multicultural Affairs refused to grant the Applicant’s husband (‘Husband’) a Partner (Temporary) (Class UF) visa under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’). ZWNG had sponsored the visa.

2. On 15 May 2024, ZWNG lodged an application with the Tribunal for review of the refusal decision. On 31 May 2024, directions were issued for the parties to provide statements and other evidence, and on 18 June the Respondent furnished documents under s 501G of the Act.

3. On 1 August 2024, the Respondent requested an urgent telephone directions hearing in order to put before the Tribunal a contention that the Tribunal does not have jurisdiction to consider ZWNG’s application for review. The Respondent sought an order under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) dismissing the application.

4. A hearing was held by telephone on 6 August 2024. Ms Tegan Weir, special counsel of HWL Ebsworth, represented the Minister, assisted by Ms Maryam Popal of HWL Ebsworth. Mr Patrick Lauger, migration agent of LP Migration & Education Services, represented ZWNG. Ms Weir made short oral submissions. Mr Lauger said that ZWNG would submit to the decision of the Tribunal.

5. On 29 July 2024, Her Excellency the Governor-General accepted the resignations of certain ministers and made new appointments. The Respondent in this matter thereby became the Minister for Immigration and Multicultural Affairs. This change, by itself, does not affect matters that are on foot before the Tribunal.

6. For the reasons that follow, the Tribunal agreed with the Respondent’s submissions and found that it does not have jurisdiction to consider ZWNG’s application. The purported application for review will be dismissed and the hearing that had been scheduled to hear the substantive application will be vacated.

7. The Tribunal gave an oral decision but advised the parties that short written reasons would be provided. These are those reasons.

   THE LAW

8. Section 25 of the AAT Act provides that an enactment may provide for applications for review of decisions. The word ‘enactment’ in s 3 of the AAT Act is defined to mean, inter alia, an Act of the Parliament of the Commonwealth or an instrument, including regulations, made under an Act.

9. Section 500(1)(b) of the Act provides that applications may be made to the Tribunal to review decisions of a delegate of the Respondent under s 501. Section 500(3) goes on to provide:

   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 Part 7 if the decision had been made on another ground.

10. Part 5-reviewable decisions are defined under s 338 of the Act. Section 338(9) of the Act provides that a decision that is prescribed (i.e. prescribed by regulation) for the purposes of this subsection is a Part 5-reviewable decision.

11. Division 4.1 of the Migration Regulations 1994 (Cth) (‘the Regulations’) deals with the review of decisions other than protection visa decisions. Reg 4.02(1A) prescribes certain visas for the purposes of s 338(2)(d) of the Act.

12. In this case, the Husband was not in the migration zone when he applied for the visa. The delegate’s decision was not to cancel a visa, but to refuse to grant a visa. The delegate’s decision did not relate to an application for a bridging visa and the Husband was not in immigration detention. The visa could not be granted to the Husband while in the migration zone (see reg 309.412 of Sch 2 of the Regulations).

13. Importantly, the delegate’s decision did not relate to a permanent visa. The visa in question is a subclass 309 (Partner (Provisional)) visa. Subclass 309 is prescribed in Sch 2 of the Regulations. Part 2 of Schedule 1 categorises ‘Temporary visas (other than bridging visas) [item 1201 to item 1242]’. Item 1220A falls within this range and comprises Partner (Provisional)(Class UF) visas, with one subclass – subclass 309 (Partner (Provisional)).

14. Section 347(2) of the Act sets out who can apply for review of a Part 5-reviewable decision. It provides that 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 the decision can apply for review. If the Part 5-reviewable decision is covered by ss 338(5) or (8), the sponsor or nominator referred to in the subsection can apply for review. If the Part 5-reviewable decision is covered by ss 338(6) or (7), the relative referred to in the subsection can apply for review. If the Part 5-reviewable decision is covered by subsection 338(9) of the Act – the person prescribed in respect of the kind of decision in question can apply for review of the decision.

15. In this case, none of these provisions apply, so s 347(2)(d) of the Act applies. Therefore, the Tribunal must look to the Regulations. Regulation 4.02(5) states

    For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by the following:

    …

    (raa) in the case of a decision to which paragraph (4)(saa) applies – the applicant;

16. Regulation 4(saa) refers to a decision to refuse to grant a Subclass 309 (Partner)(Provisional)) visa.

    CONSIDERATION

    Migration background of person refused visa

17. The facts before me reveal the following. The Husband is aged 33 and is a citizen of the Socialist Republic of Vietnam. He married ZWNG in 2017. She is an Australian citizen.

18. The Husband arrived in Australia on a student visa. The student visa expired at the end of 2012. The Husband resided in Australia as an unlawful non-citizen (i.e. without a valid visa) until he was voluntarily removed on 8 January 2015.

19. In 2014, the Husband was convicted before the County Court of Victoria and sentenced for the offence of cultivating a commercial quantity of cannabis. He was sentenced to two years’ gaol, with a non-parole period of 10 months.  At the end of his period in custody, the Husband was voluntarily removed from this country. He resides in Vietnam.

20. On 20 December 2017, the Husband applied for a Partner (Temporary)(Class UF) visa. The Department of Home Affairs (‘the Department’) requested further information, including a national police check.

21. On 11 September 2018, the Husband’s then representative provided to the Department an Australian Federal Police national police check, a copy of the sentencing remarks of the County Court of Victoria, and a certified copy of a police clearance certificate from Vietnam.

22. On 19 January 2024, a delegate of the Minister considering the application issued the Husband a notice of intention to refuse the visa, and invited him to comment.

23. On 8 April 2024, a delegate decided to refuse to grant the visa under s 501(1) of the Act. The delegate was not satisfied that the Husband passed the character test set out in the Act. The Husband was notified of that decision by letter from the Department dated 24 April 2024.

24. The letter was addressed to the Husband but emailed to his migration agent, authorised to act on his behalf. The letter relevantly stated:

    You can apply to have the decision to refuse to grant you a Partner (Temporary)(Class UF) visa reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have the decision reviewed, you must lodge an application with the AAT within twenty-eight (28) days after the day on which you are taken to have received this letter.

    (Underlining added. Emphasis in the original.)

25. It included content setting out the Husband’s entitlement to seek review of the decision by the Tribunal.

26. On 15 May 2024, ZWNG lodged an application for review.

    Change to regulations regarding refusal of temporary partner visa

27. The problem for the Applicant is that at the end of 2023 the Governor-General made new regulations, the Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023.

28. The Explanatory Statement set out, relevant to this case, that one of the changes that was made was to:

    Provide Subclass 309 Partner visa applicants with standing to apply for merits review themselves, rather than the sponsor, to facilitate better access for family violence victims and other compassionate circumstances…

29. Regulation 4.02(5) of the Regulations was changed, as the Explanatory Statement set out in Item [2]:

    New paragraph 4.02(5)(raa) provides that the person who may apply for merits review, in relation to the Subclass 309 visa, is the applicant. The effect of this amendment is to provide all Subclass 309 applicants with standing to seek merits review of a decision to refuse to grant their Subclass 309 visa, rather than the sponsor.

    (Emphasis added.)

30. The unfortunate consequence of this change to the principal Regulations for the Husband and ZWNG is that, while these amendments were principally designed to assist applicants for partner visas who were in Australia so that they had standing to seek review of decisions relating to their visas, rather than having to do so through the visa sponsor, the changes to the Regulations also have the effect that, in relation to a decision to refuse a Subclass 309 visa, the applicant him or herself must be the one to seek review of the decision. As the last two sentences of the third paragraph of the Explanatory Statement state:

    Subsection 338(9) provides that a prescribed decision is a Part 5-reviewable decision, for merits review purposes. Paragraph 347(2)(d) provides that for such prescribed decisions, an application for merits review may only be made by the prescribed person.

    (Emphasis added.)

31. This reflects the wording in regulation 4.02(5) where it states that an application for review, in this case, may only be made by the visa applicant.

32. As ZWNG is not the applicant for the visa, she does not have standing to bring an application for review to the Tribunal. While the decision to refuse the visa is a reviewable decision, there is no valid application before the Tribunal because one has not been lodged in accordance with the law.  It follows that the Tribunal has no jurisdiction to consider the application that was lodged in the name of ZWNG on 15 May 2024.

    Can visa applicant be substituted for review applicant?

33. Relevantly, in Assi v Minister for Immigration [2005] FMCA 260 (‘Assi’), Federal Magistrate Scarlett found, at [63] that:

    …ss 503 and 347(2) [of the Migration Act 1958] clearly manifest a legislative intention to limit the jurisdiction of the Tribunal and are not simply procedural in nature.

34. Mr Assi had brought an application but only the nominator for the visa, who was not Mr Assi, had standing to apply to the Tribunal for review under s 347(2)(b) of the Act. Mr Assi argued that his was still a valid application to which a new applicant who did have standing could be joined. Although no application for joinder had been made, the learned Federal Magistrate said he agreed with submissions from the Minister that the Tribunal would not have power to join the nominator because the applicant was not entitled to make the application in the first place, so there were no proceedings validly before the Tribunal.

35. Therefore, s 500(3) has a ‘disentitling’ effect, in that it removes the entitlement of a person to lodge an application for merits review by the Tribunal unless the person otherwise satisfies the requirements and, in this case, would have been entitled to apply for review under Part 5 of the Act (s 347). It therefore conditions the jurisdiction of the Tribunal. Assi was recently referred to, without criticism, by Collier ACJ in Heffernan v Minister forImmigration, Citizenship and MulticulturalAffairs [2024] FCA 626, which turned on whether an applicant was in the migration zone but considered the general import of s 500(3).

36. So, for completeness, and although Mr Lauger did not raise this as a submission, I find that there is no ability to substitute the Husband in the place of ZWNG for the application that was lodged before the Tribunal on 15 May 2024.

37. Section 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if it is satisfied that the decision is not reviewable by the Tribunal. I am satisfied in this case that ZWNG did not have standing to bring the application for review. Therefore there is no valid application before the Tribunal for review of the decision. It is not necessary for me to form any view about whether or not the delegate was right to be satisfied that the Husband did not satisfy the character test and therefore should be refused the visa under s 501(1) of the Act.

    DECISION

38. Pursuant to s 42A(4) of the AAT Act, the Tribunal dismisses the application for review because it is satisfied that the decision is not reviewable. The reason is that the applicant did not have standing to lodge the application for review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

....................[sgd]....................................................

Associate

Dated: 6 August 2024

Date of hearing:	6 August 2024
Applicant’s Representative:	Mr Patrick Lauger (LP Migration & Education Services)
Respondent’s Representative:	Ms Tegan Weir (HWL Ebsworth)

End note added 21 August 2024

Following the publication of these reasons, the Applicant made a request for her name to be anonymised. In the exceptional circumstances of the submission, the Tribunal made an order under s 35 of the AAT Act on 21 August 2024 to prohibit the publication of her name and substitute the anonym ‘ZWNG’. The name of her husband has also been redacted. No other part of the decision or the statement of reasons for the decision has been altered. For the power of the Tribunal to make such an order after the publication of a decision, see, relevantly, the decision of DP Forgie in Re Tam Anh Le and Secretary, Department ofEducation, Science and Training (2006) 90 ALD 83; [2006] AATA 208 at [12]-[14], with which the Tribunal respectfully agrees.