Thlork v Minister for Immigration

In *Thlork v Minister for Immigration*, the applicants sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to review a delegate's refusal to grant them Student (Temporary) (Class TU) (Subclass 500) visas. The applicants had lodged their visa applications while outside Australia, and the delegate refused their applications on the basis that the primary applicant was not a genuine applicant for entry and stay as a student. The AAT determined that the delegate's decision was not a Part 5-reviewable decision under the *Migration Act 1958* (Cth) due to the combined effect of sections 347(2) and 338(2) of the Act, and therefore it had no jurisdiction to conduct a merits review.

The central legal issue before the court was whether the applicants had a right to merits review by the AAT, notwithstanding that they were outside Australia when they lodged their visa applications and the delegate's decision was not, on its face, a reviewable decision. The applicants contended that they were misled by erroneous advice from both the delegate and their former migration agent regarding their review rights, and that this misinformation should grant them a right of review.

The court held that the applicants' contention was incorrect in law. It reasoned that the AAT's jurisdiction is determined by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), not by erroneous advice provided by a delegate or a migration agent. The court affirmed that the delegate's decision was not a Part 5-reviewable decision as defined by the Act, and therefore the AAT correctly found it lacked jurisdiction to review the decision under section 347(2)(a) of the Act. The court found no jurisdictional error on the part of the AAT.

Consequently, the application for judicial review was dismissed.