TAHERE v Minister for Home Affairs and Anor

This matter concerned an application for review by the applicant, a New Zealand citizen, of a decision by a delegate of the Minister for Home Affairs to refuse her application for a Special Category (Temporary) (Class T4) visa. The applicant arrived in Australia on 16 March 2018 and, not holding any other visa, was taken to have applied for a Special Category visa upon presenting her passport and incoming passenger card at immigration clearance. The delegate refused the visa application on the basis that the applicant was a "behaviour concern non-citizen" due to previous removals from Australia. The applicant was subsequently notified that she was an unlawful non-citizen and detained pending removal, before applying for review of the visa refusal. The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to review the delegate's decision.

The primary legal issues before the court were whether the applicant's application for review was made while she was physically present in the migration zone, and whether the delegate's decision was a "Part 5-reviewable decision" under section 338 of the Migration Act 1958 (Cth). Specifically, the court had to determine if the applicant was in immigration clearance or had been refused immigration clearance at the time of the decision, and whether she was in the migration zone when she lodged her application for review. The court also considered the definition of the migration zone and the circumstances under which a person is deemed to have been immigration cleared or refused immigration clearance.

The court reasoned that for the AAT to have jurisdiction, the applicant must have been in the migration zone when she applied for review, and the decision must not have been made while she was in immigration clearance or had been refused immigration clearance and not subsequently cleared. Section 172 of the Act defines when a person is immigration cleared or refused immigration clearance. The court noted that the applicant was notified of the visa refusal at 11:10 am while still in immigration clearance at Sydney Airport, and at 11:25 am was notified she was an unlawful non-citizen and would be detained. Therefore, the decision was made while the applicant was in immigration clearance. Furthermore, the applicant was subsequently detained in immigration detention, which the court considered to be within the migration zone. However, the critical factor was that the decision to refuse the visa was made while the applicant was in immigration clearance, which excluded it from being a Part 5-reviewable decision under s 338(2)(c)(i) of the Act.

Consequently, the Administrative Appeals Tribunal lacked jurisdiction to review the delegate's decision. The court found that the applicant's application for review was not validly made because the delegate's decision was not a Part 5-reviewable decision.