Cho (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 407 (Training) visa. The applicants were seeking review of the delegate's decision to refuse their visa applications, which had been refused following the refusal of two nomination applications made by their prospective sponsor, YT Pty Ltd T/A Yi Dynasty. The Tribunal was required to determine whether it had jurisdiction to hear the review application.

The central legal issue before the Tribunal was whether the applicants met the criteria for reviewability under section 338(2)(d) of the Migration Act 1958 (Cth). Specifically, the Tribunal had to consider whether the applicants were identified in an approved nomination that had not ceased, or whether a review of a decision not to approve the sponsor or the nomination was pending at the time the visa refusal decision was made. The Tribunal noted that paragraphs (a) to (c) of section 338(2) were satisfied, and the dispute centred on paragraph (d).

The Tribunal reasoned that the applicants' sponsor's first nomination was refused on 10 September 2019, and no review was sought. A second nomination was subsequently refused on 17 October 2019, shortly before the applicants' visa applications were refused on the same day. Consequently, at the time of the visa refusal, the applicants were not identified in an approved nomination that had not ceased, failing criterion (i) of section 338(2)(d). Furthermore, as no review of the nomination refusal was pending, criterion (iii) was also not met. The Tribunal also noted that there was no pending review of a decision not to approve the sponsor, failing criterion (ii). Therefore, the applicants did not satisfy the requirements of section 338(2)(d) of the Act.

As the Tribunal concluded that the criteria for reviewability under section 338(2)(d) were not met, it found that the delegate's decision was not reviewable. Accordingly, the application for review was not properly made, and the Tribunal determined that it did not have jurisdiction in the matter.