Wada (Migration)

This matter concerned an application for review of a visa cancellation decision made by the Department of Immigration. The applicant, who had previously been employed in Australia on an Electronic Travel Authority (ETA) visa (Subclass 601) without work rights, had his visa cancelled. The applicant was at the airport with an officer when the cancellation decision was made, and subsequently left Australia before lodging his application for review with the Tribunal. The applicant's migration agent's registration had also been cancelled.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant was "in immigration clearance" at the time his visa was cancelled, which would affect the Tribunal's jurisdiction to review the cancellation decision under section 338(3)(b) of the *Migration Act 1958* (Cth). Secondly, the Tribunal had to consider whether the applicant had made a valid application for review, given that he was not physically present in the migration zone (Australia) when he lodged the application, as required by section 347(3) of the Act.

The Tribunal reasoned that the applicant was "in immigration clearance" when his visa was cancelled because the cancellation decision itself indicated that he might be refused immigration clearance, meaning he had not yet been refused. This satisfied the definition of being "in immigration clearance" under section 172(2) of the Act. However, the Tribunal found that the applicant had not made a valid application for review because he was not physically in Australia when he lodged it, failing to meet the requirements of section 347(3). Despite having sympathy for the applicant's difficult circumstances, including being misled by a former migration agent, the Tribunal concluded that it could only exercise jurisdiction if the statutory criteria were met, which they were not in this instance.

Consequently, the Tribunal determined that it had no jurisdiction to hear the application for review. The application was therefore not considered valid.