Dyankov v Minister for Immigration

The applicant, Mr. Dyankov, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute centred on whether the applicant was "sponsored" by an approved sponsor for the purposes of s 338(2)(d)(i) of the Migration Act 1958 (Cth) (the Act), which would render the refusal a Part 5-reviewable decision. The court hearing this matter was the Federal Circuit Court of Australia.

The primary legal issue before the court was to determine the meaning of "sponsored" in the context of s 338(2)(d)(i) of the Act, specifically whether an applicant is considered "sponsored" if an approved sponsor has applied for approval of a nomination identifying the applicant, even if that nomination application was subsequently refused and no review of that refusal was sought. The court was required to interpret the interplay between the definition of "sponsored" in s 337 of the Act, Regulation 4.02 of the Migration Regulations 1994 (Cth), and the specific provisions of s 338(2)(d) concerning temporary visas.

Judge Hartnett reasoned that the definition of "sponsored" under s 337 of the Act, as elaborated by Regulation 4.02(1AA), includes being identified in a nomination under s 140GB of the Act. However, for the purposes of s 338(2)(d)(i), the applicant must be sponsored by an approved sponsor at the time the application for review is made. The court found that the applicant's argument that "sponsored" should encompass the ordinary English meaning of promising or vouching for another, irrespective of third-party approval, was not supported by the statutory framework. The Act and Regulations clearly link sponsorship to the approval of a nomination. Therefore, the applicant was not considered sponsored under s 338(2)(d)(i) because the nomination application identifying him had been refused, and there was no pending review of that refusal.