Offshore Merit Review Applicants
This provision causes many problems:
(3) If the MRT-reviewable decision was covered by s. 338(2), (3), (3A) or (4), 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.
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
These provisions require the failed visa applicant to be present in Australia in order to lodge the MRT application. Particularly pernicious is the review rights of a merit review decision under s. 338(7A) which reads:
(7A) A decision to refuse to grant a non-citizen a permanent visa is an MRT-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
This requires the applicant to try and track when a decision may be made and ensure that the visa applicant is present when the decision is made.