Sahay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This case concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicants, citizens of India, had applied for a skilled independent visa. Their application was refused by a delegate of the Minister on 8 February 2019. The applicants subsequently lodged an application for review with the AAT, which was dismissed on 20 March 2019 on the grounds that the applicants were outside the migration zone at the time of the delegate's decision, meaning the Tribunal lacked jurisdiction. A further application for review was lodged on 28 March 2019.

The legal issues before the court were whether the AAT had correctly determined it lacked jurisdiction to consider the applicants' application for merits review. Specifically, the court had to consider the impact of the applicants being outside the migration zone at the time of the delegate's decision, and whether any jurisdictional error had occurred in the AAT's determination. The court also considered whether the applicants had raised an arguable case for relief, given the lack of evidence filed by them and the history of previous jurisdictional findings.

Justice Kelly found that the AAT had correctly concluded it had no jurisdiction to consider the application for review. The court reasoned that the applicants were outside the migration zone when the delegate's decision was made, which was a fatal circumstance for their application for merits review by the Tribunal, as stipulated by the Migration Act 1958 (Cth). The court noted that the applicants had not provided any evidence to support their claims or to demonstrate an arguable case for relief, and that opportunities to do so had not been taken. The Minister's submission that the applicants' presence outside the migration zone at the time of the delegate's decision was determinative of the Tribunal's jurisdiction was accepted.

The application for judicial review was dismissed. The court noted that, given the history of the matter, if the applicants' case were accepted, it might be appropriate for Ministerial intervention under section 351 of the Migration Act 1958 (Cth).