Al Hamid v Minister for Immigration and Border Protection [2017] FCA 1256

Al Hamid v Minister for Immigration and Border Protection [2017] FCA 1256

Following the binding Full Court authority in Dyankov, the applicants' proposed appeal had to fail. The withdrawal of sponsorship meant that at the time the Tribunal review application was made the first applicant could not be said to be sponsored as required, so the visa criteria could not be met and the Tribunal had no jurisdiction. It was therefore futile to grant leave to appeal.

Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Application for Leave to Appeal From Orders of the Federal Circuit Court of Australia Refusing an Application to Reinstate an Application for Judicial Review / Leave to Appeal
Outcome
The amended application for leave to appeal was refused with costs.
Legal Topics
['application for Leave to Appeal' 'federal Circuit Court Refusal to Reinstate Judicial Review Application' 'administrative Appeals Tribunal Jurisdiction' 'merits Review of Visa Refusal' 'temporary Business Entry (class Uc) Visas' 'subclass 457 Visas' 'approved Sponsor and Nomination Requirements' 'migration Act 1958 S 338(2)(d)']
['administrative Law' 'migration Law'] ['application for Leave to Appeal' 'federal Circuit Court Refusal to Reinstate Judicial Review Application' 'administrative Appeals Tribunal Jurisdiction' 'merits Review of Visa Refusal' 'temporary Business Entry (class Uc) Visas' 'subclass 457 Visas' 'approved Sponsor and Nomination Requirements' 'migration Act 1958 S 338(2)(d)']

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Procedural Posture

Application for Leave to Appeal From Orders of the Federal Circuit Court of Australia Refusing an Application to Reinstate an Application for Judicial Review / Leave to Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's refusal to reinstate the judicial review application." "Whether the Administrative Appeals Tribunal had jurisdiction to review the delegate's refusal of the applicants' Temporary Business Entry (Class UC) visa applications where the sponsor had withdrawn its sponsorship and no approved or pending nomination or related review was before the Tribunal." 'Whether Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 required the proposed appeal to fail.']

Ratio Decidendi

Following the binding Full Court authority in Dyankov, the applicants' proposed appeal had to fail. The withdrawal of sponsorship meant that at the time the Tribunal review application was made the first applicant could not be said to be sponsored as required, so the visa criteria could not be met and the Tribunal had no jurisdiction. It was therefore futile to grant leave to appeal.

Court Disposition

The amended application for leave to appeal was refused with costs.

Orders

  • ['The amended application for leave to appeal be refused with costs.']