Vechvimol (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review by Vechvimol concerning a decision to refuse a Partner (Residence) (Class BS) visa. The primary dispute revolved around whether Vechvimol had lodged their application for review within the prescribed timeframes and in the correct manner, as required by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

The Tribunal was required to determine two key legal issues. Firstly, whether the application for review was lodged within the 21-day time limit stipulated by s 347(1)(b) of the Act and r 4.10 of the Regulations, considering the date of notification of the original decision. Secondly, the Tribunal had to ascertain whether the application for review met the requirements of s 347(1)(a) of the Act, specifically regarding the approved form and prescribed fee, and whether the applicant was physically present in the migration zone at the time of lodging the review application, as relevant to the definition of a Part 5 reviewable decision under s 338(2) of the Act.

The Tribunal reasoned that Vechvimol was taken to have been notified of the original decision on 3 July 2017, meaning the 21-day period for lodging a review application expired on 24 July 2017. As the application was received on 31 July 2017, it was lodged out of time. Furthermore, the Tribunal found that no application in the approved form had been received, nor had any prescribed fee been paid, which also failed to meet the statutory requirements for a valid review application. Additionally, the Tribunal noted that Vechvimol was likely outside the migration zone when the review application was lodged, which was a relevant consideration for the nature of the decision being reviewable under s 338(2) of the Act.

Consequently, the Tribunal concluded that it lacked jurisdiction to review the decision because the application for review was not made in accordance with the relevant legislative provisions.