Mora v Minister for Immigration and Border Protection [2018] FCA 1819

Mora v Minister for Immigration and Border Protection [2018] FCA 1819

The Tribunal's assessment of the genuineness of the nominated position was fatally affected by its reliance on an outdated version of the ANZSCO description, resulting in a misapplication of reg 2.72(10)(f) of the Migration Regulations and thus jurisdictional error; as the visa refusal decision was inextricably linked to the nomination decision, it too was affected by jurisdictional error and could not stand.

Parties
First Appellant: Marcela Osorio Mora; Second Appellant: Benjamin Munoz Santamaria; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
23 November 2018
Procedural Posture
Appeal / Judgment on Appeal From Federal Circuit Court Decision Dismissing Application for Judicial Review
Outcome
Appeal allowed; both nomination and visa refusal decisions quashed.
Legal Topics
Judicial Review of Administrative Decisions, Visa Nomination, Jurisdictional Error, Application of ANZSCO Criteria, Genuine Position Requirement
Administrative Law Migration Law Judicial Review of Administrative Decisions Visa Nomination Jurisdictional Error Application of ANZSCO Criteria Genuine Position Requirement

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Parties

Marcela Osorio Mora

First Appellant

Benjamin Munoz Santamaria

Second Appellant

Minister for Immigration and Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From Federal Circuit Court Decision Dismissing Application for Judicial Review

Legal Issues

  1. 1 Whether the Tribunal failed to correctly apply the relevant criteria in refusing to approve the nomination, resulting in jurisdictional error
  2. 2 Whether the Tribunal failed to take into account mandatory relevant considerations or took into account irrelevant considerations in referring to an outdated ANZSCO version
  3. 3 Whether as a necessary consequence of jurisdictional error in the nomination decision, the decision refusing the visa was also affected by jurisdictional error

Ratio Decidendi

The Tribunal's assessment of the genuineness of the nominated position was fatally affected by its reliance on an outdated version of the ANZSCO description, resulting in a misapplication of reg 2.72(10)(f) of the Migration Regulations and thus jurisdictional error; as the visa refusal decision was inextricably linked to the nomination decision, it too was affected by jurisdictional error and could not stand.

Court Disposition

Appeal allowed; both nomination and visa refusal decisions quashed.

Orders

  • The appeal be allowed.
  • The orders of the Federal Circuit Court in proceeding BRG1096/2016 made on 3 October 2017 be set aside.