1617393 (Migration)

The applicant sought review of a decision made by the delegate of the Minister concerning a Temporary Work (Long Stay Activity) visa (subclass 401), Religious Worker Stream. The dispute arose because the applicant was not identified in a current approved nomination, and the sponsorship nomination had expired prior to the visa refusal. Crucially, there was no nomination application awaiting approval at the time of the delegate's decision. The matter came before the Tribunal for determination.

The primary legal issue before the Tribunal was whether the delegate's decision was a reviewable decision under section 338(2)(d) of the Migration Act 1958 (Cth). This section pertains to decisions that are prescribed as reviewable. The Tribunal was required to ascertain if the specific circumstances of the applicant's case, particularly the expired nomination and the absence of a pending nomination application, rendered the delegate's decision one that could be subject to review.

The Tribunal reasoned that for a decision to be reviewable under section 338(2)(d), the applicant must meet the criteria for reviewability as prescribed by the Migration Regulations 1994. In this instance, the regulations require that the applicant be identified in a current approved nomination. As the applicant's sponsorship nomination had expired and no new nomination was awaiting approval, the applicant did not satisfy this essential requirement for reviewability. Consequently, the delegate's decision was not a reviewable decision.

As a result of the delegate's decision not being reviewable, the Tribunal concluded that the application for review had not been properly made. Therefore, the Tribunal determined that it did not have jurisdiction to hear the matter.