Hirae (Migration) [2019] AATA 5600 | Case summary

The Administrative Appeals Tribunal (AAT) determined it could not review a decision to refuse Employer Nomination visas because the applicants were not in Australia when the original decision was made. Under the Migration Act, people applying to the AAT to review certain visa decisions must be physically present in Australia both when the original decision is made and when they apply for review. The applicants had left Australia before the decision was made and returned afterwards. Because this legal requirement was not met, the AAT had no power to hear the case. The applicants later tried to withdraw their application, but the AAT said this was not possible because there was never a valid application in the first place.

An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 October 2019, to refuse to grant Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.
The review application was lodged with the Tribunal on 29 October 2019. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone at the time of primary decision and when the application for review is made: s.347(2)(a) and (3). 'Migration zone' is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.
The Department's movement records show that the first named applicant departed Australia on 25 September 2019 and arrived back in Australia on 20 October 2019 and that the secondary applicant departed Australia on 4 October 2019 and arrived back in Australia on 20 October 2019. This indicates the applicants were absent from Australia at the relevant time, specifically, the time of primary decision.
On 13 November 2019 the Tribunal sent the applicants a letter inviting them to comment on its preliminary view that because the applicants were not in the migration zone at the time of primary decision it has no jurisdiction to review the matter.
On 26 November 2019 the applicants sent in a request for withdrawal of review application. The Tribunal considers that because it has no jurisdiction to review the matter, there is no valid application to withdraw.
The Tribunal finds that the applicants were not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

Hirae (Migration) [2019] AATA 5600 (5 December 2019)

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Hirae (Migration) [2019] AATA 5600 (5 December 2019)

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