1705419 (Migration)

The applicant, a New Zealand citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (Cth) to refuse to consider his application for review of the cancellation of his Special Category (Class TY) visa (subclass 444). The applicant's visa was cancelled while he was in immigration clearance, following his arrest on criminal charges and subsequent extradition proceedings.

The central legal issue before the Federal Court was whether the Tribunal had jurisdiction to review the decision to cancel the applicant's visa, given that the cancellation occurred while he was in immigration clearance. This required the Court to determine the meaning of "immigration clearance" in the context of the *Migration Act 1958* (Cth) and its impact on the Tribunal's review powers.

Justice Redfern reasoned that the applicant was not in immigration clearance at the time of the visa cancellation. The Court found that "immigration clearance" refers to the process of entering Australia, and the applicant, having already entered Australia and been granted a visa, was no longer undergoing this process. Therefore, the cancellation did not occur during immigration clearance, and the Tribunal retained jurisdiction to review the cancellation decision. The Court quashed the Tribunal's decision and remitted the matter to the Tribunal for reconsideration according to law.