Theldeniya Pasannaseela Thero (Migration)

This matter concerned an application for review of a decision concerning a Temporary Activity (Class GG) visa, subclass 408 (Temporary Activity) – Religious Worker stream. The applicant, Theldeniya Pasannaseela Thero, sought review of a decision made by a delegate. The core of the dispute revolved around the validity of the review application lodged with the Migration and Refugee Division of the Administrative Appeals Tribunal.

The legal issue before the Tribunal was whether it had jurisdiction to consider the applicant's review application. Specifically, the Tribunal was required to determine if the applicant's physical location outside the migration zone at the time of lodging the review application rendered the application invalid and thus outside the Tribunal's jurisdiction, notwithstanding the applicant's contention that the presence of an Australian-based sponsor should validate the application.

The Tribunal reasoned that under sections 338 and 411 of the Migration Act 1958 (Cth) and regulation 4.02(4) of the Migration Regulations 1994 (Cth), a decision is only reviewable by the Tribunal if the applicant was physically present within the migration zone at the time of lodging the review application. The Tribunal found, based on uncontested information, that the applicant was outside the migration zone when the review application was lodged on 9 June 2023. The applicant's submission that the presence of an Australian sponsor should cure this jurisdictional defect was rejected, as the legislation clearly links reviewability to the applicant's physical location.

Consequently, the Tribunal concluded that the application for review was not properly made and therefore it lacked jurisdiction to consider the matter.