Rosa Santiago (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal by Rosa Santiago, who sought to challenge a decision by the Department of Home Affairs regarding her Employer Nomination Scheme visa (Subclass 186). The core of the dispute was whether a review application could be validly filed in anticipation of a refusal decision.

The legal issue before the Tribunal was whether it possessed jurisdiction to hear a review application that was lodged before the Department had formally made and communicated a decision to refuse the visa application. The Tribunal was required to determine the point at which a decision becomes "made" for the purposes of triggering the right to seek merits review.

Member Hugh Sanderson reasoned that it is a fundamental principle of administrative law that a review application can only be filed after a reviewable decision has been made and notified to the applicant. Filing an application in anticipation of a future refusal is misconceived. If the Department ultimately decides to refuse the visa application, the applicant will have a right to seek review, but this right can only be exercised once that refusal decision has been formally made and within the prescribed time limits. Consequently, the Tribunal concluded it did not have jurisdiction to entertain the application as presented.