Does the Migration Zone include pre-clearance area?

Tip Series - the Migration Zone (MZ): many practitioners believe that a person only enters the MZ after that person is immigration cleared. With respect, that is wrong, which is good for some Tribunal applicants.

We thank reader Owen Harris for helping us improve the content of this article.

The misconception

It is common for practitioners to state that clients only enter the Migration Zone (MZ) after they have been immigration cleared. With respect, that is wrong and that misconception can lead to incorrect advice, such as that clients cannot make a valid Tribunal application in circumstances where they actually can.

The importance of the concept

There are several circumstances where the location of a person, that is whether in or outside of the MZ, has serious consequences for clients. To give just one example, a visa refusal is only reviewable by the AAT under s 338(2) of the Migration Act 1958 if the non-citizen is physically present in the MZ at the time of making the review application. That is because s 347(2) provides as follows (emphasis added):

(3)  If the Part 5-reviewable decision was covered by subsection 338(2) ..., an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

To avoid doubt, this article is NOT about s 338(2)(c), according to which a refusal is only reviewable under s 338(2) if the refusal was not made when the applicant was in immigration clearance or had been refused immigration clearance. This article is about where the applicant must be at the time of application for review, not at the time of visa refusal.

Imagine a scenario where a client applies onshore for a substantive visa and that, before that application is decided and while their BVB is in effect, the client temporarily leaves Australia. Imagine that, while the client is offshore, their substantive visa application is refused. The writer has seen a few cases of self-represented clients in that situation. Can that client apply to the AAT under s 338(2)?

One of the criteria for such a review application is that the client must be in the MZ at the time of the review application. As the client is the holder of a BVB, they should, in most cases, be able to re-enter Australia, pass immigration clearance and then apply for review. But what if, for whatever reason, the client's BVB is cancelled at the airport and the client is not immigration cleared? Is the client nevertheless already in the MZ while still in Australia pending removal at the airport so as to enable them to make a valid AAT application?

Yes they are, for the following reasons...

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