Kaur v Minister for Immigration and Border Protection [2018] FCA 779

Kaur v Minister for Immigration and Border Protection [2018] FCA 779

The appeal failed because the Tribunal's 12 April 2016 invitation complied with the statutory requirements, the appellants did not respond within the prescribed period or at all, and the operation of ss 359C, 360(3) and 363A meant they lost their entitlement to appear before the Tribunal and the Tribunal could decide the review without offering a hearing. The proposed challenge concerning cl 187.233 had no merit because the sponsor's nomination application had been refused and that refusal affirmed, leaving no approved nomination as required by the visa criterion.

Jurisdiction
Australia
Judgment Date
25 May 2018
Procedural Posture
Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Regional Employer Nomination Permanent (class Rn) (subclass 187) Visa / Federal Court Appeal; Reasons for Judgment and Orders Dismissing the Appeal
Outcome
Appeal dismissed.
Legal Topics
['judicial Review of Migration Decisions' 'regional Employer Nomination Permanent (class Rn) (subclass 187) Visa' 'approved Nomination Criterion' 'tribunal Invitation to Comment on Adverse Information' 'entitlement to Appear Before the Tribunal']
['administrative Law' 'migration Law'] ['judicial Review of Migration Decisions' 'regional Employer Nomination Permanent (class Rn) (subclass 187) Visa' 'approved Nomination Criterion' 'tribunal Invitation to Comment on Adverse Information' 'entitlement to Appear Before the Tribunal']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Regional Employer Nomination Permanent (class Rn) (subclass 187) Visa / Federal Court Appeal; Reasons for Judgment and Orders Dismissing the Appeal

Legal Issues

  1. 1 ["Whether the primary judge erred in relation to ss 359A and 359(2) of the Migration Act 1958 (Cth) by finding that the Tribunal was not required to offer the appellants a hearing after they failed to respond to the Tribunal's invitation to comment." 'Whether the appellants should be permitted to raise, and whether there was merit in, the allegation that cl 187.233 and cl 187.233(1)(b) of Sch 2 to the Migration Regulations 1994 (Cth) were incorrectly interpreted or applied.' 'Whether the absence of an approved nomination for the nominated position meant that the visa criterion in cl 187.233 was not met.']

Ratio Decidendi

The appeal failed because the Tribunal's 12 April 2016 invitation complied with the statutory requirements, the appellants did not respond within the prescribed period or at all, and the operation of ss 359C, 360(3) and 363A meant they lost their entitlement to appear before the Tribunal and the Tribunal could decide the review without offering a hearing. The proposed challenge concerning cl 187.233 had no merit because the sponsor's nomination application had been refused and that refusal affirmed, leaving no approved nomination as required by the visa criterion.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The appellants pay to the first respondent the costs of and in connection with the appeal.']