Zalesky (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant for a Temporary Work (Class GC) Training and Research visa (subclass 402) and the Minister for Immigration and Border Protection. The dispute concerned the validity of the applicant's application for review of the delegate's decision to refuse his visa. The applicant contended that a nomination application lodged by the sponsor after the visa refusal should be considered in determining the validity of his review application.

The primary legal issue before the Tribunal was whether the delegate's decision to refuse the applicant's subclass 402 visa was a "reviewable decision" under section 338(2)(d)(i) of the Migration Act 1958 (Cth). This required the Tribunal to determine whether, at the time the applicant lodged his application for review, he was identified in a nomination that was either approved or pending.

The Tribunal reasoned that section 338(2)(d)(i) requires the relevant state of affairs to exist "at the time the application to review the decision is made." It found that a nomination application lodged after the visa refusal could not be taken into account, as there was no legislative scope for such a later application to validate a review. This reasoning was reinforced by the Full Federal Court's decision in *Ahmad v Minister for Immigration and Border Protection* [2015] FCAFC 182, which held that section 338(2)(d)(i) is not satisfied if, at the time of the review application, the visa applicant had not been identified in a nomination, even if a nomination decision was later made or had lapsed. The Tribunal noted that at the time the applicant lodged his review application on 16 December 2016, there were no pending nomination approval applications in respect of the applicant, nor were there pending review applications by the sponsor concerning previous nomination refusals.

Consequently, the Tribunal found that the delegate's decision to refuse the applicant's subclass 402 visa application was not a reviewable decision for the purposes of section 338(2)(d)(i). The Tribunal made no orders as the matter was not properly before it.