Jia (Migration)

This matter concerned a review application before the Tribunal concerning a subclass 132 (Business Talent) visa. The first applicant's visa was refused due to the second applicant's alleged involvement in unacceptable business practices. The primary dispute revolved around the Tribunal's jurisdiction to hear the review application, particularly in light of the first applicant's location at the time of lodgement and the substantive criteria for the visa in relation to the second applicant.

The Tribunal was required to determine whether it had jurisdiction to review the decision to refuse the first applicant a subclass 132 visa, and whether the second applicant met the substantive criteria for that visa. A key legal issue was whether the first applicant's physical presence within the migration zone at the time of lodging the review application was a jurisdictional requirement, and if so, whether any exceptions applied due to COVID-19 related travel restrictions.

The Tribunal found that it lacked jurisdiction in relation to the first applicant because section 347(2) of the Migration Act 1958 (Cth) requires an applicant for review of a subclass 132 visa refusal made onshore to be physically present in the migration zone when the review application is made. The applicants did not dispute that the first applicant was outside the migration zone on the relevant date. While acknowledging the difficult circumstances arising from COVID-19 travel restrictions, the Tribunal held that section 347(2) contains no discretion to waive this requirement, even for compassionate reasons or circumstances beyond an applicant's control. The Tribunal also noted that concessional arrangements cited by the applicants applied to a different visa subclass and that there had been no legislative amendment to relax the jurisdictional requirement. Consequently, the Tribunal affirmed the decision not to grant the visa to the second applicant.