TONG v Minister for Immigration

This matter concerned an application for judicial review brought by the applicant against the Minister for Immigration. The applicant sought to challenge a decision by the Migration Review Tribunal (MRT) which found it lacked jurisdiction to hear his application for review. The MRT's decision was based on its interpretation of section 338 of the *Migration Act 1958* (Cth).

The central legal issue before the Court was whether the MRT had erred in law by determining it lacked jurisdiction to review the applicant's visa refusal. Specifically, the Court was required to consider whether the applicant met the sponsorship requirements stipulated in section 338(2)(d) of the *Migration Act 1958* at the time he lodged his application for review with the MRT. The applicant also raised several other grounds for judicial review, including allegations of jurisdictional error, misinterpretation of regulations, breaches of natural justice, and improper exercise of power.

The Court found that the MRT's decision was correct on the facts before it. Section 338(2)(d) of the *Migration Act 1958* requires that for a visa refusal to be reviewable by the MRT, the applicant must either be sponsored by an approved sponsor at the time of the review application, or have a pending review of a sponsorship refusal. The Court noted there was no evidence before the MRT that the applicant had an approved sponsor at the relevant time, nor was there evidence of a pending review of a sponsorship decision. Consequently, the MRT correctly concluded it did not have jurisdiction. The Court also observed that the applicant's other grounds for judicial review appeared to be generic and lacked specific application to the facts of the case, with the exception of ground 2 which touched upon the sponsorship issue.

The application for judicial review was dismissed.