Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224

Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224

The appeal was dismissed because the appellants' grounds did not identify jurisdictional error and amounted to impermissible merits review. Since the sponsor's nomination was not approved, cl 186.223 imposed a mandatory requirement that the first appellant could not satisfy, so the Tribunal made the only decision open to it in affirming refusal of the visa application. In any event, remittal would have been futile because the required nomination could not be substituted later and remained unapproved.

Jurisdiction
Australia
Judgment Date
13 October 2023
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs fixed in the amount of $4000.
Legal Topics
['employer Nomination (permanent) (class En) (subclass 186) Visa' 'temporary Residence Transition Stream' 'approved Nomination Requirement' 'jurisdictional Error' 'impermissible Merits Review' 'futility of Remittal']
['migration Law' 'administrative Law'] ['employer Nomination (permanent) (class En) (subclass 186) Visa' 'temporary Residence Transition Stream' 'approved Nomination Requirement' 'jurisdictional Error' 'impermissible Merits Review' 'futility of Remittal']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing the appellants' application for judicial review of the Tribunal's decision affirming refusal of the Subclass 186 visa application." "Whether the Tribunal made a jurisdictional error where the sponsor's nomination had not been approved and cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) required an approved nomination." 'Whether remittal to the Tribunal would be futile even if error were established.']

Ratio Decidendi

The appeal was dismissed because the appellants' grounds did not identify jurisdictional error and amounted to impermissible merits review. Since the sponsor's nomination was not approved, cl 186.223 imposed a mandatory requirement that the first appellant could not satisfy, so the Tribunal made the only decision open to it in affirming refusal of the visa application. In any event, remittal would have been futile because the required nomination could not be substituted later and remained unapproved.

Court Disposition

Appeal dismissed with costs fixed in the amount of $4000.

Orders

  • ['The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".' 'The appeal be dismissed.' "The appellants pay the first respondent's costs of and incidental to the appeal fixed in the amount of $4000."]