Gurung v Minister for Immigration & Border Protection

The applicant, Mr. Gurung, sought judicial review of a decision by the Migration Review Tribunal (MRT) which found it lacked jurisdiction to review the Minister for Immigration and Border Protection's refusal to grant Mr. Gurung a Subclass 457 visa. The visa refusal was based on the applicant not being the subject of an approved nomination. Mr. Gurung had applied for the visa while offshore, and the MRT determined that, under the relevant regulations, only the sponsor could apply for a review of such a decision.

The central legal issue before the court was whether the MRT correctly determined that it lacked jurisdiction to review the delegate's decision to refuse the Subclass 457 visa. This required the court to consider the interplay between s 338(9) and reg 4.02(4)(l) of the Migration Act 1958 (Cth) and its associated regulations, which define "MRT-reviewable decisions," and s 347(2)(d) and reg 4.02(5)(k), which specify who may apply for a review of such decisions.

Emmett J reasoned that the delegate's decision to refuse the visa was indeed a "MRT-reviewable decision" under reg 4.02(4)(l) because the applicant was offshore when he applied for the visa and was sponsored by a company operating in the migration zone. Crucially, reg 4.02(5)(k) stipulated that for decisions falling under reg 4.02(4)(l), only the sponsor or nominator could apply for a review. As Mr. Gurung, the applicant himself, had lodged the review application, the MRT correctly concluded that it was not an application made by a person with the standing to do so under the Act and regulations, and therefore, the Tribunal lacked jurisdiction. The application for judicial review was dismissed.