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Court Decision: Chan Ta Srey v Immigration Department (MIMIA)

The Department of Immigration is to comply with the Federal Courts' decision in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (the 'Srey decision'); following is current interpretation for affected applicants.

Which applicants?

This applies to 'Srey-affected applicants' who were:

• persons who were in Australia and
• were sent, via mail to an address within Australia, notification of a decision to refuse a visa or affirm a refusal at merits review,
• during the period 1 September 1994 to 30 June 2000 inclusive

It applies only to visa refusals that:

• carried the right to external merits review (Immigration Review Tribunal (IRT) / Migration Review Tribunal (MRT) or Refugee Review Tribunal (RRT) but
• have not been the subject of such review or where the relevant review body decided that the application was invalid

Srey-affected applicants who have since gained permanent resident status or Australian citizenship are beyond the scope of this directive, at present. This applies to Srey-affected applicants who present or come to the attention of the department of Immigration whether in Australia or at an overseas post.

Background:

From 1 September 1994 to 30 June 2000, the department relied on regulation 5.03 to determine the date upon which an unsuccessful visa applicant had been notified by mail.

The Srey decision, in combination with the decision in Minister for Immigration and Multicultural Affairs v Singh, have the effect that notification of a decision to refuse a visa which was sent by mail to an address within Australia during the period of 1 September 1994 to 30 June 2000 will have failed to satisfy the notification requirements of the Migration Act. The notification was defective.

Effect on bridging visas:

One consequence of defective notification is that any bridging visa held in association with the application to which that notification related, did not cease. Careful checking of all departmental records is required by immigration officer's to identify an applicant's current immigration status.

As a result of the Srey decision, Srey-affected applicants still in Australia will still hold a bridging visa, except where there is a later event which will have caused the bridging visa to cease.

Later events that will have caused a bridging visa to cease are:

• A decision by the IRT, MRT or RRT affirming the visa refusal. Also note:
  
• Where a tribunal has found that an application was out of time, that is not considered to be a ceasing event and
  
• Any family members included in the Srey-affected substantive visa application must have sought and got merits review for a ceasing event to apply to them
  
• Voluntary departure from Australia
  
• A decision to cancel a visa under s501 made on or after 1 June 1999 means that s501F operates to cancel any other visa held other than a protection visa
  
• A decision to cancel a substantive visa under another provision of the Act (that is not s501) may operate to cancel the bridging visa provided it is a Bridging A visa (BVA) or Bridging B visa (BVB), (but only the cancellation of the substantive visa held at the time the person applied for the new substantive visa)
  
• Valid notification on or after 1 July 2000 (provided the notification is not flawed by other legal errors and does not rely on stale addresses).

It is important to note that a decision by the IRT (now demised), MRT or RRT affirming the refusal of one decision cannot be relied upon as having ceased a bridging visa granted in association with a different substantive visa application that may be affected by the Srey decision.

Similarly re-notification on or after 1 July 2000 given to a residential address provided by the applicant at the time the application was originally dealt with, is not taken to satisfy the notification requirements of the Migration Act.

If the bridging visa has ceased for other reasons, such as cancellation on the grounds of not complying with conditions attached to a bridging visa, it may still be necessary for the Srey-affected applicant to be notified of the refusal decision.

Merits review rights are a separate issue to whether the person holds a bridging visa.

Applicants who applied for review by the former MIRO:

Notification of decisions by the Migration Internal Review Office (MIRO - now demised) sent by mail to an address within Australia during the period 1 September 1994 to 1 June 1999 relied upon regulation 5.03 for notifying a '28 day' period in which an application for review could be made to the IRT. These notifications are affected by the Srey decision. These cases are deemed MRT applications and until the MRT actually makes and notifies a merits decision, the ceasing event will not occur.

If a decision to refuse to grant a substantive visa which was the subject of review by the former MIRO has not also been reviewed by the IRT/MRT, a notification letter relating to the MIRO decision that is affected by the Srey decision cannot be relied upon to have caused the bridging visa associated with the visa application to cease. Unless a later event has caused the bridging visa to cease, the applicant should be taken to continue to hold that bridging visa.

If a MIRO decision was not notified prior to 1 June 1999 in a way that satisfied the notification requirements (1 June 1999 being the date on which all undetermined MIRO and IRT cases became MRT cases under the relevant transitional provisions), and there has been no IRT or MRT review of the decision, the applicant is to be taken as having an undetermined application to the MRT.

In such circumstances, in practice the MRT needs to be informed that the Department of Immigration considers that there may be an undetermined MRT application, and the applicant should be advised that they continue to hold a bridging visa in association with the review proceedings.

Where an immigration case officer holds a file that was subject to a Srey-affected MIRO affirmed decision and is to be referred to the MRT, the departmental officer must update the applicant's ICSE record to note the existence of any associated bridging visa, notify the applicant that the Department of Immigration will be referring all relevant records to the MRT for the MRT to consider whether there is an undetermined application before the MRT and provide the applicant client with copies of the primary and MIRO decisions.

Procedures to Establish Whether an Applicant is Affected

The tests below should be applied to establish if an applicant should be taken to be affected by the Srey decision and therefore continue to hold a bridging visa.

An immigration case officer should determine whether the applicant:

• Was the subject of a decision, or decisions, to refuse to grant a substantive visa and
• Was sent the notification letter to an address within Australia, within the period 1 September 1994 to 30 June 2000 inclusive, advising of that decision and
• Had been granted a bridging visa in respect of the application to which that decision related and
• Has not been notified of that decision on or after 1 July 2000 (and the notice was sent to a current residential or business address which has been provided by the client on or after 1 July 2000 specifically for the purpose of the receipt of documents). If notification was given to an address provided at the time the application was originally dealt with, this is not taken to satisfy the notification requirements of the Act.

AND:

• Did not apply to a merits review tribunal for review of the relevant refusal decision, noting that a decision by the IRT, MRT or RRT affirming the refusal of one decision cannot be relied upon as having ceased a bridging visa granted in association with a different substantive visa application or
• Did apply to a merits review tribunal but the application was dismissed as being invalid (eg, determined by the merits review tribunal to have been made out of time)

AND:

• Did not voluntarily depart Australia since the application for the visa was made, or, if they held a BVB in respect of the application, departed Australia and returned within the travel period allowed by that BVB
• Has not been the subject of a decision made on or after 1 June 1999 under the character provisions in s501 of the Act to cancel or refuse a visa or
• Has not been deemed to have received valid notification, on or after 1 July 2000 (provided the notification is not flawed by any other legal errors and does not rely on stale addresses).

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