Nguyen v Minister for Home Affairs

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to dismiss an appeal relating to a Skilled Work visa. The applicant’s original sponsor had ceased to hold approval as a business sponsor, and the applicant had been invited to comment on this adverse information. The applicant contended that a new sponsor would support their application. However, the Tribunal concluded it lacked jurisdiction to hear the appeal.

The central legal issue before the court was whether the Tribunal erred in finding that it did not have jurisdiction to review the delegate's decision to refuse to grant the visa. This required the court to determine whether the applicant met the criteria for a "Part 5 reviewable decision" as defined by section 338 of the Migration Act 1958 (Cth). Specifically, the court had to consider the requirements of section 338(2)(d), which pertains to sponsorship for temporary visas.

The court reasoned that for the Tribunal to have jurisdiction, the applicant needed to satisfy one of the cumulative requirements in section 338(2)(d)(i) or (ii). These requirements stipulate that either the applicant must be sponsored by an approved sponsor at the time the application for review is made, or an application for review of a decision not to grant sponsorship must be pending at that time. Drawing on previous Full Federal Court decisions in *Kandel v Minister for Immigration and Border Protection* and *Ahmad v Minister for Immigration and Border Protection*, the court affirmed that the expression "sponsored by an approved sponsor" in section 338(2)(d)(i) necessitates both an approved sponsor and the applicant being identified in a nomination. The court found that the applicant had not met these jurisdictional requirements.

Consequently, the court dismissed the application, upholding the Tribunal's conclusion that it lacked jurisdiction to review the visa refusal.