Kaur v Minister for Immigration and Border Protection [2014] FCA 520

Kaur v Minister for Immigration and Border Protection [2014] FCA 520

The appeal failed because the relevant regulations required the original employer nomination and appointment to remain approved and available at the time of decision. Hot Az was the nominating employer, its nomination had been rejected and there was no evidence it had ever been approved, Hot Az had ceased business and the position was no longer available. The regulations did not allow the Tribunal to continue the visa nomination on the basis of a different prospective employer. No error was shown in the Tribunal's decision or in the Federal Circuit Court's review of it.

Jurisdiction
Australia
Judgment Date
22 May 2014
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal
Outcome
Appeal dismissed with costs to be assessed if not otherwise agreed.
Legal Topics
['employer Nomination (residence) (class Bw) Visas' 'subclass 856 Visa Criteria' 'employer Nomination Approval' 'jurisdictional Error' 'migration Review Tribunal Review']
['migration Law' 'administrative Law'] ['employer Nomination (residence) (class Bw) Visas' 'subclass 856 Visa Criteria' 'employer Nomination Approval' 'jurisdictional Error' 'migration Review Tribunal Review']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal erred by refusing to consider a possible new nomination by a different employer after the original nominating employer ceased business.' 'Whether cl 856.221(d) of the Migration Regulations 1994 (Cth) required the original nominated appointment to remain available to the applicant at the time of decision.' "Whether the Tribunal failed to take into account relevant considerations concerning the closure of the nominating employer's business and circumstances beyond the first appellant's control." "Whether the Federal Circuit Court erred in finding no jurisdictional error in the Tribunal's decision."]

Ratio Decidendi

The appeal failed because the relevant regulations required the original employer nomination and appointment to remain approved and available at the time of decision. Hot Az was the nominating employer, its nomination had been rejected and there was no evidence it had ever been approved, Hot Az had ceased business and the position was no longer available. The regulations did not allow the Tribunal to continue the visa nomination on the basis of a different prospective employer. No error was shown in the Tribunal's decision or in the Federal Circuit Court's review of it.

Court Disposition

Appeal dismissed with costs to be assessed if not otherwise agreed.

Orders

  • ['The appeal be dismissed with costs to be assessed if not otherwise agreed.']