Tran and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 155 (Return) (Class BB) visa. The applicant, Mr Tran, contended that the decision was a Part 5 reviewable decision and that the Tribunal had jurisdiction to hear his appeal. The Minister for Immigration, Citizenship, and Multicultural Affairs argued that the Tribunal lacked jurisdiction. The case was heard by D Cosgrave M.

The primary legal issue before the Tribunal was whether the refusal decision was a Part 5 reviewable decision under section 338(7A) or section 338(6) of the Migration Act 1958 (Cth). A related issue was whether the applicant met the requirements for making an application for review under section 347 of the Act. The applicant also raised arguments regarding the validity of certain amendments to the Migration Regulations 1994 (Cth) and compliance with consultation requirements under the Legislation Act 2003 (Cth).

The Tribunal found that section 338(6) of the Act was not applicable because the Subclass 155 visa could be granted to an applicant whether they were in or outside of Australia. However, the Tribunal was satisfied that the decision was a Part 5 reviewable decision under section 338(7A). Crucially, section 347(3A) mandates that an application for review of a decision covered by section 338(7A) can only be made by a non-citizen who was physically present in the migration zone when the decision was made and is physically present in the migration zone when the review application is lodged. The Tribunal determined that the applicant was not present in the migration zone at either of these times and did not hold a visa allowing him to return to Australia, thus failing to meet the application requirements of section 347. The Tribunal also rejected the applicant's arguments regarding the invalidity of the amending regulation and consultation requirements, finding them to be without basis.

Consequently, the Tribunal concluded that it did not have jurisdiction to hear the application. The application was dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).