Minister for Immigration and Citizenship v Islam

In the case of Minister for Immigration and Citizenship v Islam, the Federal Court of Australia addressed the question of whether a delegate's decision to refuse a visa application under the Migration Act 1958 was subject to review by the Migration Review Tribunal (MRT). The respondents, Mrs and Mr Islam, had applied for a subclass 457 Business (Long Stay) Visa, but their applications were refused by a delegate. They sought review of the decision by the MRT, which was denied on the basis that the respondents were not sponsored by an approved sponsor, as required by the Act and Regulations. The primary issue before the court was whether the refusal of the visa application was a decision that could be reviewed by the MRT under section 338(2)(d) of the Act.

The court considered whether it was a criterion for the grant of the visa that the non-citizen was sponsored by an approved sponsor. It found that, according to the Regulations, it was indeed a criterion. The court then examined whether the respondents were sponsored by an approved sponsor at the time they applied for review of the decision to refuse the visa. The Tribunal had determined that they were not, and that no review of the decision not to approve the sponsor was pending. The court held that the Tribunal was correct in its finding that it did not have jurisdiction to review the decision under section 338(2)(d) of the Act, as the respondents were not sponsored by an approved sponsor at the relevant time.

The appeal was allowed, and the orders made by the Federal Magistrates Court of Australia were set aside. Instead, it was ordered that the application to that Court be dismissed, with each party to bear their own costs. Additionally, each party to the appeal was ordered to bear their own costs. This decision highlights the importance of sponsorship by an approved sponsor for visa applications under the Migration Act and the limited jurisdiction of the MRT to review such decisions.