Chapa v Minister for Immigration

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to hear an appeal against a delegate's refusal to grant a Regional Employer Nomination (Permanent) visa. The applicant, a non-citizen, sought review of the delegate's decision to refuse his visa application. The AAT determined it had no jurisdiction because the applicant was not physically present in the migration zone at the time he lodged his application for review.

The central legal issue before the Federal Court was whether the AAT had erred in finding it lacked jurisdiction. Specifically, the Court was required to determine if the applicant met the jurisdictional prerequisite stipulated by s 347(3) of the Migration Act 1958 (Cth), which mandates that a non-citizen must be physically present in the migration zone when lodging an application for review of certain decisions, including those covered by s 338(2). The applicant contended that he was onshore, and therefore the AAT did have jurisdiction.

Justice Kendall reasoned that the definition of "migration zone" in s 5(1) of the Act, which generally refers to Australian States and Territories, was not disputed. The evidence before the Court, including an affidavit from Daphne Jones-Bolla, definitively showed that the applicant had departed Australia on 30 March 2019 and remained offshore when his review application was lodged on 4 April 2019. Consequently, the requirement under s 347(3) was not satisfied, meaning the AAT correctly concluded it had no jurisdiction. The Court found no jurisdictional error in the AAT's decision.

The application for judicial review was dismissed. The Court expressed sympathy for the applicant's unfortunate circumstances but stated it could not provide assistance as there was no evidence of jurisdictional error by the AAT, which was the sole basis upon which the Court could intervene.