Hui (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 155 (Five Year Resident Return) visa. The applicant, who had departed Australia prior to lodging her visa application and remained outside the migration zone, contended that the use of the word "must" in a natural justice letter from the Tribunal indicated a discretionary power to validate a review application lodged from outside the migration zone. The applicant argued this discretion was intended to protect fundamental human rights, uphold the separation of powers, and preserve the rule of law. The Tribunal, however, focused on the wording of the Migration Act 1958 (Cth) and the relevant visa refusal notification.

The primary legal issue before the Tribunal was whether it had jurisdiction to consider the applicant's review application. This turned on the interpretation of Section 338(2) of the Act, which defines a Part 5-reviewable decision, and Section 347(2) and (3), which stipulate the conditions for making a valid application for review. Specifically, the Tribunal had to determine whether the applicant's physical presence within the migration zone at the time of lodging her review application was a mandatory requirement for jurisdiction, or if discretion existed to waive this requirement, particularly in light of the COVID-19 pandemic.

The Tribunal reasoned that Section 338(2) of the Act was applicable, as the visa refusal decision was made while the applicant was outside the migration zone, and the visa could have been granted while she was in the migration zone. Crucially, the Tribunal found that Section 347(2)(a) and (3) of the Act clearly stated that an application for review could only be made by a non-citizen who was the subject of the decision and was physically present in the migration zone when the application was made. The Tribunal interpreted the word "may" in these sections as conveying that it was "possible" only for such a person to apply, and that they had "permission to" apply. The Tribunal acknowledged the difficult circumstances arising from the COVID-19 pandemic but concluded that its role was to apply the legislation as it stood, and that no discretion was provided to allow for applications lodged from outside the migration zone.

Consequently, the Tribunal found that the applicant was not in the migration zone at the relevant time, meaning her application for review was not properly made under Section 347 of the Act. Therefore, the Tribunal concluded that it did not have jurisdiction in the matter.