Gena v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 603

Gena v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 603

The application for extension of time and leave to appeal had to be dismissed because the first applicant indisputably could not satisfy the essential requirement in cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth), there being no approved nomination. Any appeal would therefore be futile. In any event, the proposed grounds were without merit: the primary judge correctly found no arguable case of relevant error, the grounds directed to the Tribunal were not competent as grounds against the Federal Circuit Court judgment, the Tribunal did not err in refusing to hold the review indefinitely, and the separate nomination judicial review proceeding was not relevant to the primary...

Jurisdiction
Australia
Judgment Date
05 June 2023
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal From Dismissal of Judicial Review Application / Application for Extension of Time and Leave to Appeal
Outcome
Application for extension of time and leave to appeal dismissed with costs.
Legal Topics
['regional Employer Nomination (permanent) (class Rn) Visas' 'subclass 187 Visa Criteria' 'approved Nomination Requirement' 'extension of Time and Leave to Appeal' 'dismissal of Judicial Review Application']
['migration' 'administrative Law'] ['regional Employer Nomination (permanent) (class Rn) Visas' 'subclass 187 Visa Criteria' 'approved Nomination Requirement' 'extension of Time and Leave to Appeal' 'dismissal of Judicial Review Application']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal From Dismissal of Judicial Review Application / Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ["Whether the applicants should be granted an extension of time and leave to appeal from the Federal Circuit Court's dismissal of their judicial review application." 'Whether the absence of an approved employer nomination meant the first applicant could not satisfy cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth).' "Whether the proposed grounds of appeal identified appealable error in the Federal Circuit Court's judgment." 'Whether the Tribunal erred by refusing to place the visa review on hold pending judicial review of the nomination decision.']

Ratio Decidendi

The application for extension of time and leave to appeal had to be dismissed because the first applicant indisputably could not satisfy the essential requirement in cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth), there being no approved nomination. Any appeal would therefore be futile. In any event, the proposed grounds were without merit: the primary judge correctly found no arguable case of relevant error, the grounds directed to the Tribunal were not competent as grounds against the Federal Circuit Court judgment, the Tribunal did not err in refusing to hold the review indefinitely, and the separate nomination judicial review proceeding was not relevant to the primary...

Court Disposition

Application for extension of time and leave to appeal dismissed with costs.

Orders

  • ['The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.' 'The application for an extension of time and leave to appeal be dismissed.' "The applicants pay the first respondent's costs as agreed or taxed."]