ZWNG and Minister for Immigration and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UF) visa made by the respondent, the Minister for Immigration and Multicultural Affairs, in relation to the applicant, a citizen of Vietnam. The visa applicant, the husband, had married an Australian citizen. The husband had a criminal history, including a conviction for cultivating a commercial quantity of cannabis, for which he received a custodial sentence. Following his release from custody, he was voluntarily removed from Australia. He subsequently applied for the Partner visa from offshore. A delegate of the Minister refused to grant the visa on character grounds. The decision notice informed the husband of his right to seek review by the Administrative Appeals Tribunal (AAT). However, the application for review was lodged by his wife, ZWNG, who was the sponsor of the visa application.

The Administrative Appeals Tribunal was required to determine whether it had jurisdiction to hear the review application lodged by ZWNG. Specifically, the Tribunal had to consider the effect of recent amendments to the Migration Regulations 1994, which altered the standing requirements for seeking merits review of decisions to refuse a Subclass 309 Partner visa. The Tribunal also had to consider whether the visa applicant could be substituted for the applicant of the review application, or if a new applicant with standing could be joined to the proceedings.

The Tribunal reasoned that the Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023, which came into effect at the end of 2023, had changed regulation 4.02(5) of the Regulations. The amendment provided that for a Subclass 309 visa refusal, the person who may apply for merits review is the visa applicant themselves, rather than the sponsor. This change was intended to facilitate better access to review for certain applicants, but it had the consequence that only the visa applicant could lodge a valid application for review. The Tribunal noted that subsection 338(9) of the Migration Act 1958 defines prescribed decisions as Part 5-reviewable decisions, and paragraph 347(2)(d) provides that for such decisions, an application for merits review may only be made by the prescribed person. As ZWNG was not the visa applicant, she did not have the legal standing to lodge the review application. The Tribunal relied on the decision in *Assi v Minister for Immigration* [2005] FMCA 260, which held that provisions limiting jurisdiction are not merely procedural and that a tribunal lacks power to join a new applicant if the original application was not validly before it. Therefore, section 500(3) of the Act was found to condition the jurisdiction of the Tribunal by requiring the applicant to satisfy specific eligibility criteria to lodge an application.

Consequently, the Tribunal found that it had no jurisdiction to consider the application lodged by ZWNG because it was not made by the prescribed person, meaning there was no valid application before the Tribunal. The application was therefore dismissed for want of jurisdiction.