Zhang (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, a citizen of China, had applied for the visa while in Australia but departed the country before the delegate's decision to refuse the visa. She subsequently lodged an application for merits review with the Tribunal after being notified of the refusal. The Tribunal was required to determine whether it had jurisdiction to review the delegate's decision, given the applicant's physical absence from the migration zone at the time she lodged her review application.

The central legal issue before the Tribunal was whether the applicant had made a valid application for review under the relevant provisions of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to consider the requirements of section 347(2) of the Act, which dictates who may apply for review of certain decisions, and the definition of the "migration zone" as provided in section 5(1) of the Act. The applicant contended that exceptional circumstances beyond her control prevented her presence in Australia when she lodged the review application, and that the Department had acknowledged these circumstances.

The Tribunal reasoned that section 347(2)(a) and (3) of the Act explicitly requires that an applicant for review of a decision described in section 338(2) must be physically present in the migration zone at the time the application for review is made. The Tribunal found that the applicant was not in Australia when she lodged her review application, and therefore, the application was not made in accordance with the legislative requirements. The Tribunal concluded that it had no discretion to waive this mandatory requirement and, consequently, lacked jurisdiction to review the delegate's decision. The Tribunal therefore found that it did not have jurisdiction in this matter.