DALAL (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The dispute arose because the application for review was made by the visa sponsor, not the visa applicant, and the visa applicant was not physically present within the migration zone at the relevant times.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear the application for review. This turned on the interpretation of section 338(7A) of the Migration Act 1958 (Cth) and section 347 of the Migration Act 1958 (Cth), specifically concerning the requirements for making a valid application for review when the applicant is outside the migration zone.

The Tribunal reasoned that for a decision covered by section 338(7A) to be reviewable, the non-citizen who is the subject of the decision must be physically present in the migration zone at the time of both the primary decision and the application for review. In this instance, the review application was lodged by the sponsor, and crucially, the visa applicant was not in the migration zone when the primary decision was made, nor when the application for review was filed. Consequently, the Tribunal concluded that the application for review was not properly made under section 347, and therefore, the Tribunal lacked jurisdiction. The Tribunal determined it did not have jurisdiction in this matter.