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MIGRATION ACT 1958 - SECT 338

Definition of Part 5-reviewable decision

             (1)  A decision is a Part 5-reviewable decision if this section so provides, unless:

                     (a)  the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

                     (b)  the decision is a Part 7-reviewable decision; or

                     (c)  the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or

                     (d)  the decision is a fast track decision.

             (2)  A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

                     (a)  the visa could be granted while the non-citizen is in the migration zone; and

                     (b)  the non-citizen made the application for the visa while in the migration zone; and

                     (c)  the decision was not made when the non-citizen:

                              (i)  was in immigration clearance; or

                             (ii)  had been refused immigration clearance and had not subsequently been immigration cleared; and

                     (d)  where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

                              (i)  the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

                             (ii)  an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

             (3)  A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a Part 5-reviewable decision unless the decision:

                     (a)  is covered by subsection (4); or

                     (b)  is made at a time when the non-citizen was in immigration clearance; or

                     (c)  was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or

                     (d)  was made personally by the Minister under section 109 or 116 or subsection 140(2).

          (3A)  A decision under section 137L not to revoke the cancellation of a non-citizen's visa is a Part 5-reviewable decision if the non-citizen was in the migration zone when the decision was made.

             (4)  The following decisions are Part 5-reviewable decisions :

                     (a)  a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal;

                     (b)  a decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation.

             (5)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

                     (b)  the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

                              (i)  an Australian citizen; or

                             (ii)  a company that operates in the migration zone; or

                            (iii)  a partnership that operates in the migration zone; or

                            (iv)  the holder of a permanent visa; or

                             (v)  a New Zealand citizen who holds a special category visa.

             (6)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

                     (b)  a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and

                     (c)  a parent, spouse, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.

Note:          Section 5G may be relevant for determining family relationships for the purposes of this subsection.

             (7)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

                     (b)  a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and

                     (c)  particulars of the relative concerned are included in the application.

Note:          Section 5G may be relevant for determining family relationships for the purposes of this subsection.

          (7A)  A decision to refuse to grant a non-citizen a permanent visa is a Part 5-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.

             (8)  A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5-reviewable decision if:

                     (a)  the visa is a visa that could not be granted while the applicant is in the migration zone; and

                     (b)  the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

                              (i)  an Australian citizen; or

                             (ii)  the holder of a permanent visa; or

                            (iii)  a New Zealand citizen who holds a special category visa; and

                     (c)  the Minister has not refused to grant the visa.

             (9)  A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision .



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