Kim v Minister for Immigration and Citizenship [2007] FCA 138

Kim v Minister for Immigration and Citizenship [2007] FCA 138

The appeal failed because the refusal of Shark Australia Pty Ltd's nomination was not an MRT-reviewable decision and, even if it were, only Shark Australia Pty Ltd as the prescribed business sponsor or employer could seek review. The appellant's review application concerned refusal of her visa, and no separate duty required the Tribunal to inquire into or review Shark Australia's nomination refusal. Without an approved nomination, the appellant could not satisfy cl 442.222 of Schedule 2 to the Migration Regulations 1994, and the Tribunal did not fail to consider material before it.

Jurisdiction
Australia
Judgment Date
09 March 2007
Procedural Posture
Migration Appeal / Appeal From an Order of the Federal Magistrates Court Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of an Educational (temporary) (class Th) Visa
Outcome
Appeal dismissed.
Legal Topics
['occupational Trainee Visa' 'mrt Reviewable Decision' 'nomination Approval' 'jurisdictional Error' 'tribunal Duty to Inquire' 'non Appearance on Appeal']
['migration Law' 'administrative Law'] ['occupational Trainee Visa' 'mrt Reviewable Decision' 'nomination Approval' 'jurisdictional Error' 'tribunal Duty to Inquire' 'non Appearance on Appeal']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From an Order of the Federal Magistrates Court Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of an Educational (temporary) (class Th) Visa

Legal Issues

  1. 1 ["Whether the Minister's delegate's decision to refuse Shark Australia Pty Ltd's nomination for occupational training was an MRT-reviewable decision" "Whether the appellant could require the Tribunal to review the refusal of Shark Australia Pty Ltd's nomination" 'Whether the Tribunal committed jurisdictional error by failing to review the nomination application or make further inquiries' 'Whether the appellant satisfied cl 442.222 of Schedule 2 to the Migration Regulations 1994']

Ratio Decidendi

The appeal failed because the refusal of Shark Australia Pty Ltd's nomination was not an MRT-reviewable decision and, even if it were, only Shark Australia Pty Ltd as the prescribed business sponsor or employer could seek review. The appellant's review application concerned refusal of her visa, and no separate duty required the Tribunal to inquire into or review Shark Australia's nomination refusal. Without an approved nomination, the appellant could not satisfy cl 442.222 of Schedule 2 to the Migration Regulations 1994, and the Tribunal did not fail to consider material before it.

Court Disposition

Appeal dismissed.

Orders

  • ['The title of the first respondent be changed to Minister for Immigration and Citizenship.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs."]