Minister for Immigration and Border Protection v Lee

The Minister for Immigration and Border Protection appealed a decision of the Administrative Appeals Tribunal concerning visa applications made by Mr. Lee and other respondents. The dispute centred on whether the Tribunal had jurisdiction to review the Minister's decision to refuse to grant the respondents subclass 457 visas, given the specific requirements of section 338(2)(d) of the Migration Act 1958 (Cth).

The primary legal issue before the Federal Court was whether the respondents met the criteria for an MRT-reviewable decision under section 338(2)(d) of the Act. This section requires that for certain temporary visas granted on the basis of sponsorship, the applicant must be sponsored by an approved sponsor at the time the review application is made, or an application for review of a sponsorship refusal must be pending at that time. The Minister argued that this criterion was not met.

The Court considered the precedent set in *Minister for Immigration and Citizenship v Islam* [2012] FCA 195, which involved similar circumstances and statutory provisions. In *Islam*, the Federal Court held that the visa applicant was not "sponsored" by an "approved sponsor" at the time of the review application, nor was a review of a sponsorship refusal pending. The Court in the present case found itself bound by the legal findings in *Islam*. Applying this reasoning, the Court concluded that the respondents did not satisfy the requirements of section 338(2)(d) because, at the time their review application was lodged, they were not sponsored by an approved sponsor, and no review of a sponsorship refusal was pending.

Consequently, the Federal Court allowed the Minister's appeal, finding that the Tribunal did not have jurisdiction to review the decision to refuse the visa applications.