Viengkham and Minister for Home Affairs (Migration)

This matter concerned an application for an extension of time to seek review of a decision to refuse a visa to Mr Tafokitau, a non-citizen who was offshore in Tonga at the time of the application. The application for review was made by Ms Daruny Viengkham, Mr Tafokitau's Australian citizen wife. The Administrative Appeals Tribunal was required to determine whether Ms Viengkham had standing to make the application and, consequently, whether an extension of time should be granted.

The Tribunal considered the provisions of section 500 of the Migration Act 1958 (Cth), which limits who may apply for review of certain decisions, including those made under section 501 (character test). Section 500(3) stipulates that a person is only entitled to apply for review if they would be entitled to seek review under Part 5 or Part 7 of the Act if the decision had been made on another ground. The Tribunal examined section 338, which defines a "Part 5-reviewable decision," and noted that decisions to refuse a visa to a non-citizen are only reviewable under Part 5 if specific conditions are met, including that the visa could have been granted while the non-citizen was in the migration zone and that the application for the visa was made while the non-citizen was in the migration zone.

The Tribunal reasoned that because Mr Tafokitau was offshore at the time of the visa refusal and the application for review, the decision was not a Part 5-reviewable decision. Consequently, Ms Viengkham, as the applicant, did not have standing to bring the application before the Tribunal. The Tribunal noted that it would have considered the merits of an extension of time application under established principles, such as those in *Hunter Valley Developments Pty Ltd v Cohen*, but found it futile to do so given the lack of jurisdiction.

The Tribunal concluded that the applicant lacked standing to bring the application before it. Accordingly, the application for an extension of time was refused.