Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81

Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81

A visa applicant is not 'sponsored by an approved sponsor' for the purposes of s 338(2)(d)(i) of the Migration Act where a nomination under s 140GB has been refused and no application for review of the nomination refusal is pending; accordingly, in such circumstances, the Tribunal does not have jurisdiction to review the visa refusal.

Jurisdiction
Australia
Judgment Date
23 May 2017
Procedural Posture
Appeal / Full Court Appeal From Federal Circuit Court of Australia
Outcome
Appeal dismissed
Legal Topics
['merits Review Jurisdiction' 'statutory Construction' 'sponsorship and Nomination Under Migration Act' 'subclass 457 Visa Refusal' 'migration Review Tribunal Jurisdiction']
['immigration Law' 'administrative Law'] ['merits Review Jurisdiction' 'statutory Construction' 'sponsorship and Nomination Under Migration Act' 'subclass 457 Visa Refusal' 'migration Review Tribunal Jurisdiction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Full Court Appeal From Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether a visa applicant is 'sponsored by an approved sponsor' under s 338(2)(d)(i) Migration Act when the nomination has been refused and the adverse nomination decision has not been reviewed" 'Whether the Tribunal has jurisdiction to review the refusal of a Subclass 457 visa in these circumstances']

Ratio Decidendi

A visa applicant is not 'sponsored by an approved sponsor' for the purposes of s 338(2)(d)(i) of the Migration Act where a nomination under s 140GB has been refused and no application for review of the nomination refusal is pending; accordingly, in such circumstances, the Tribunal does not have jurisdiction to review the visa refusal.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' "The appellants pay the first respondent's costs of the appeal, to be taxed if not agreed."]