Moana and Minister for Home Affairs (Migration)

This matter concerned an application for merits review of a decision made by a delegate of the Minister for Home Affairs concerning Mr Moana. The delegate's decision, made under section 116(1)(e) of the *Migration Act 1958* (Cth), was communicated to Mr Moana by letter dated 7 June 2016. The letter advised Mr Moana of his right to apply to the Administrative Appeals Tribunal (AAT) for merits review within seven working days of receiving the letter, with receipt presumed seven working days after the date of the letter. The letter also stipulated that an application for merits review could only be sought if Mr Moana was physically present in the migration zone at the time of application. The AAT, noting that the matter involved decisions under both section 501CA and section 116(1)(e) of the *Migration Act*, referred the case to a presidential member with jurisdiction in both the Migration and Refugee Division and the General Division.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the decision made under section 116(1)(e) of the *Migration Act*. This required an examination of the *Administrative Appeals Tribunal Act 1975* (Cth) (AAT Act) and the *Migration Act* to ascertain if an enactment permitted an application for review of this specific decision and if such an application had been validly made. The Tribunal was also required to consider whether the decision fell within the category of "Part 5-reviewable decisions" as defined in section 338 of the *Migration Act*.

The Tribunal reasoned that its jurisdiction to review a decision is contingent upon an enactment providing for such review, as stipulated by section 25(1)(a)(i) of the AAT Act. The Tribunal identified that the decision in question was made under section 116(1)(e) of the *Migration Act*. It then examined section 338 of the *Migration Act*, which enumerates "Part 5-reviewable decisions". The Tribunal found that the delegate's decision under section 116(1)(e) qualified as a reviewable decision under section 338(3) because Mr Moana was within the migration zone when the decision was made, and the decision was not of a type excluded by paragraphs (a) to (d) of section 338(3). Consequently, the Tribunal concluded that it had jurisdiction to review the decision.