Tennakoon Mudiyanselage (Migration)

This matter concerned an appeal to the Tribunal regarding a Subclass 188 Business Skills (Provisional) visa. The primary applicant, Mr Ruwan Tennakoon Mudiyanselage, was not in the migration zone when he made his visa application. His wife, Mrs Indira Sembapperuma Arachchige, and son, Mr Diluk Tennakoon Mudiyansalage, were secondary applicants and were in the migration zone at the relevant times. The Tribunal was required to determine whether it had jurisdiction to consider the primary applicant's case and, if so, whether the decision under review should be affirmed for the secondary applicants.

The central legal issue was whether the Tribunal had jurisdiction to review the decision concerning the primary applicant, Mr Ruwan Tennakoon Mudiyanselage. This depended on whether his visa application was considered to have been "made" within the migration zone, as required by section 338(2)(b) of the Migration Act 1958 (Cth) for a Part 5-reviewable decision. A further issue arose regarding the secondary applicants, as the delegate had found that they did not meet primary visa criteria because they had not been invited to apply for the visa.

The Tribunal reasoned that for an online visa application, the application is deemed to have been made in Australia when it is received by the Department, irrespective of the applicant's physical location, by operation of section 14B of the Electronic Transactions Act 1999 (Cth). Therefore, the application was considered to have been made within the migration zone. However, the Tribunal found that it had no jurisdiction to consider the primary applicant's case because he was not in the migration zone when the application was made, and the visa could not be granted while he was outside the migration zone. For the secondary applicants, the Tribunal affirmed the delegate's decision, noting that no evidence had been provided to demonstrate they had been invited to apply for the visa, a necessary primary criterion.