Cai v Minister for Immigration and Border Protection [2018] FCA 782

Cai v Minister for Immigration and Border Protection [2018] FCA 782

The appeal had to be dismissed because Country Noodles' employer nomination had not been approved and the challenge to that refusal had failed. As cl 857.221 required an approved employer nomination at the time of decision and allowed no discretion to waive that requirement, the Tribunal was required to affirm the refusal of the appellant's Subclass 857 visa, and the Federal Circuit Court did not err in dismissing judicial review.

Jurisdiction
Australia
Judgment Date
29 May 2018
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Dismissal / Appeal Dismissed by Federal Court
Outcome
Appeal dismissed with costs fixed for the first respondent.
Legal Topics
['employer Nomination (residence) Class BW Subclass 857 Visa' 'employer Nomination Approval' 'judicial Review' 'mandatory Visa Criteria' 'costs']
['migration Law' 'administrative Law'] ['employer Nomination (residence) Class BW Subclass 857 Visa' 'employer Nomination Approval' 'judicial Review' 'mandatory Visa Criteria' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Dismissal / Appeal Dismissed by Federal Court

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in dismissing the first appellant's judicial review application concerning refusal of a Subclass 857 visa." 'Whether the absence of an approved employer nomination for Country Noodles meant the appellant could not satisfy cl 857.221(a) and (d).' "Whether proposed new appeal grounds about access to other visa applicants' documents, Tribunal questioning style, and the interpreter could affect the outcome."]

Ratio Decidendi

The appeal had to be dismissed because Country Noodles' employer nomination had not been approved and the challenge to that refusal had failed. As cl 857.221 required an approved employer nomination at the time of decision and allowed no discretion to waive that requirement, the Tribunal was required to affirm the refusal of the appellant's Subclass 857 visa, and the Federal Circuit Court did not err in dismissing judicial review.

Court Disposition

Appeal dismissed with costs fixed for the first respondent.

Orders

  • ['The appeal is dismissed.' 'The first appellant pay the costs of the first respondent, fixed in the sum of $4,509.00']