Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1173

Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1173

The extension of time was refused because the proposed appeal had no merit. On the material before the Tribunal, there was no evidence that, when the review application was made, the first applicant was sponsored by an approved sponsor, that there was a pending application to review the refusal to approve Northern Beaches Taxi Services as a standard business sponsor, or that an approved nomination was in place. Accordingly, s 338(2)(d) of the Migration Act 1958 (Cth) was not satisfied, the delegate's decision was not a Part 5-reviewable decision, and the Tribunal lacked jurisdiction. The Federal Circuit Court did not err in dismissing the judicial review application.

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Migration Application for Extension of Time to Bring an Appeal From a Judgment of the Federal Circuit Court / Application for Extension of Time to Appeal From Dismissal of Judicial Review Proceedings
Outcome
Application for extension of time refused; applicants ordered to pay the first respondent's costs.
Legal Topics
['extension of Time to Appeal' 'subclass 457 Visa' 'part 5 Reviewable Decision' 'tribunal Jurisdiction' 'approved Sponsor and Nomination']
['migration' 'administrative Law'] ['extension of Time to Appeal' 'subclass 457 Visa' 'part 5 Reviewable Decision' 'tribunal Jurisdiction' 'approved Sponsor and Nomination']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Bring an Appeal From a Judgment of the Federal Circuit Court / Application for Extension of Time to Appeal From Dismissal of Judicial Review Proceedings

Legal Issues

  1. 1 ["Whether time should be extended to bring an appeal from the Federal Circuit Court's judgment." 'Whether the proposed appeal had sufficient merit.' "Whether the Administrative Appeals Tribunal had jurisdiction to review the delegate's decision refusing the first applicant's Subclass 457 visa application under s 338(2)(d) of the Migration Act 1958 (Cth)." 'Whether there was evidence that the first applicant was sponsored by an approved sponsor or had an approved nomination at the relevant time.']

Ratio Decidendi

The extension of time was refused because the proposed appeal had no merit. On the material before the Tribunal, there was no evidence that, when the review application was made, the first applicant was sponsored by an approved sponsor, that there was a pending application to review the refusal to approve Northern Beaches Taxi Services as a standard business sponsor, or that an approved nomination was in place. Accordingly, s 338(2)(d) of the Migration Act 1958 (Cth) was not satisfied, the delegate's decision was not a Part 5-reviewable decision, and the Tribunal lacked jurisdiction. The Federal Circuit Court did not err in dismissing the judicial review application.

Court Disposition

Application for extension of time refused; applicants ordered to pay the first respondent's costs.

Orders

  • ['The application for an extension of time filed on 18 May 2021 be refused.' "The applicants pay the first respondent's costs."]