Xu v Minister for Immigration and Border Protection [2019] FCA 294

Xu v Minister for Immigration and Border Protection [2019] FCA 294

The extension of time was refused because none of the proposed grounds of appeal had merit. The applicants did not identify evidence about exceptional circumstances that the Tribunal ignored or show materiality; the employer nomination approval had been refused, so the visa criteria requiring an approved nomination were not met and the Tribunal had no alternative but to affirm the delegate's refusal; and the allegations of unfair process and bias were unsupported and not properly proven.

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Migration Application for an Extension of Time to Appeal / Application for an Extension of Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of a Tribunal Decision
Outcome
Application for an extension of time dismissed with costs fixed at $2,700.
Legal Topics
['extension of Time to Appeal' 'employer Nomination (residence) (class Bw) Visa' 'subclass 857 Visa Criteria' 'exceptional Circumstances Waiver' 'employer Nomination Approval' 'procedural Fairness' 'bias' 'jurisdictional Error']
['migration' 'administrative Law'] ['extension of Time to Appeal' 'employer Nomination (residence) (class Bw) Visa' 'subclass 857 Visa Criteria' 'exceptional Circumstances Waiver' 'employer Nomination Approval' 'procedural Fairness' 'bias' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Application for an Extension of Time to Appeal / Application for an Extension of Time to Appeal From a Federal Circuit Court Decision Dismissing Judicial Review of a Tribunal Decision

Legal Issues

  1. 1 ['Whether an extension of time should be granted for a proposed appeal commenced five days late.' 'Whether the proposed appeal had sufficient prospects of success.' 'Whether the Tribunal ignored evidence about exceptional circumstances for waiver of functional English and diploma level qualification requirements under cl 857.213(b)(ii)(B) and (C) of Sch 2 to the Migration Regulations 1994 (Cth).' "Whether any issue about the expiry date of the regional certifying body's approval established jurisdictional error." 'Whether alleged unfair process or bias before the Tribunal or Federal Circuit Court had merit.' 'Whether refusal of the employer nomination approval under reg 5.19 was fatal to the visa application under cl 857.221.']

Ratio Decidendi

The extension of time was refused because none of the proposed grounds of appeal had merit. The applicants did not identify evidence about exceptional circumstances that the Tribunal ignored or show materiality; the employer nomination approval had been refused, so the visa criteria requiring an approved nomination were not met and the Tribunal had no alternative but to affirm the delegate's refusal; and the allegations of unfair process and bias were unsupported and not properly proven.

Court Disposition

Application for an extension of time dismissed with costs fixed at $2,700.

Orders

  • ['The application for an extension of time be dismissed.' "The applicant pay the respondent's costs fixed in the sum of $2,700."]