El Masri v Minister for Immigration and Border Protection

El Masri brought an appeal against a decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal had held that it had no jurisdiction to review a decision to refuse the appellant a Temporary Business Entry (Class UC) subclass 457 (Temporary Work (Skilled)) visa. The central issues were whether the appellant was sponsored by an approved sponsor and whether there was a pending application for review of the decision not to approve the sponsor as a standard business sponsor.

The court held that the primary judge had misconstrued the relevant statutory provisions. The term "sponsored" in s 338(2)(d)(i) of the Migration Act 1958 (Cth) when read with s 337 of the Act and subreg 4.02(1AA) of the Migration Regulations 1994 (Cth) included "being identified in a nomination under s 140GB of the Act." This meant that the Tribunal had jurisdiction to review the visa decision despite the pending review of the nomination decision.

The appeal was allowed, the orders of the Federal Circuit Court were set aside, and the Tribunal's decision was remitted for hearing and determination according to law. The Minister for Immigration and Border Protection was ordered to pay the appellant's costs of and incidental to the appeal. The court also declared that the Tribunal had jurisdiction in relation to the appellant's application for review dated 1 October 2014.