Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536

Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536

Leave to rely on the new grounds was refused and the appeal was dismissed because the proposed grounds did not identify appellable error by the primary judge or jurisdictional error by the Tribunal, largely invited merits review or raised irrelevant circumstances, and in any event any remittal would be futile because the first appellant did not have an approved sponsor nomination satisfying cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Decision Concerning Refusal of a Regional Employer Nomination (class Rn) (subclass 187) Visa / Appeal to the Federal Court; Leave Sought to Raise New Appeal Grounds; Appeal Dismissed
Outcome
Leave to rely on the new grounds of appeal refused; appeal dismissed with costs.
Legal Topics
['judicial Review' 'jurisdictional Error' 'administrative Appeals Tribunal Non Attendance Dismissal' 'leave to Raise New Appeal Grounds' 'subclass 187 Visa Nomination Criterion' 'futility of Remittal' 'merits Review']
['migration' 'administrative Law'] ['judicial Review' 'jurisdictional Error' 'administrative Appeals Tribunal Non Attendance Dismissal' 'leave to Raise New Appeal Grounds' 'subclass 187 Visa Nomination Criterion' 'futility of Remittal' 'merits Review']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Decision Concerning Refusal of a Regional Employer Nomination (class Rn) (subclass 187) Visa / Appeal to the Federal Court; Leave Sought to Raise New Appeal Grounds; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the appellants should be granted leave to rely on seven new grounds of appeal not advanced before the primary judge.' 'Whether the primary judge erred in holding that the appellants were properly notified of the Tribunal hearing and that the Tribunal was entitled to dismiss the application for non-attendance and later confirm that dismissal.' "Whether the appellants' work history, personal hardship, compassionate circumstances, alleged migration agent negligence, circumstances of nomination refusal, lack of time to arrange an alternative nomination, or departmental delay established appellable error or jurisdictional error." 'Whether any remittal would be futile because the first appellant did not satisfy the mandatory requirement for an approved nomination under cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).']

Ratio Decidendi

Leave to rely on the new grounds was refused and the appeal was dismissed because the proposed grounds did not identify appellable error by the primary judge or jurisdictional error by the Tribunal, largely invited merits review or raised irrelevant circumstances, and in any event any remittal would be futile because the first appellant did not have an approved sponsor nomination satisfying cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

Court Disposition

Leave to rely on the new grounds of appeal refused; appeal dismissed with costs.

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 sum of $4,000."]