Pheng v Minister for Immigration and Multicultural Affairs

In Pheng v Minister for Immigration and Multicultural Affairs, Ms Sokyet Pheng, a Cambodian citizen, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a visa review. Ms Pheng had entered Australia on a visitor visa and married an Australian citizen, Mr Nivo Uch, subsequently applying for a residence visa. Her application was refused, and Mr Uch, acting as her sponsor, applied for a review by the Migration Internal Review Office (MIRO). However, MIRO found that Mr Uch had no standing to apply for review, and Ms Pheng's bridging visa was deemed invalid. Consequently, Ms Pheng sought review by the MRT, which similarly found that it had no jurisdiction to review the decision, as the initial application for review had been improperly made by Mr Uch.

The court had to determine whether the MRT's decision was legally sound. The primary issue revolved around the statutory requirement that only the non-citizen subject to the visa refusal decision could apply for internal review, as outlined in sections 339(2)(a) and 340 of the Migration Act. Given that Mr Uch did not have standing to apply for review, the court needed to assess whether the MRT had jurisdiction to review the delegate's decision. The transitional provisions of the Migration Legislation Amendment Act (No 1) 1998 (Cth) were also considered, as they affected the timing and applicability of review rights. The court highlighted that the mandatory nature of the proper application for internal review was firmly established in previous cases, such as Tabet v Minister for Immigration and Multicultural Affairs and Kirk v Minister for Immigration and Multicultural Affairs.

The court concluded that the MRT's decision was correct, as there was no proper application for review made within the stipulated timeframe, and the statutory requirement for the non-citizen to apply for review was not satisfied. The court dismissed Ms Pheng's application and ordered her to pay the respondent's costs, including reserved costs. The judgment underscored the necessity for precise compliance with statutory requirements for visa review and highlighted the consequences of procedural errors, while also noting the unfortunate circumstances leading to Ms Pheng's predicament.