Suh v Minister for Immigration and Citizenship [2009] FCAFC 42

Suh v Minister for Immigration and Citizenship [2009] FCAFC 42

Because the refusal to approve the occupational training nomination under cl 442.222(1) was not reviewable by the Migration Review Tribunal, the visa applications had a fatal defect that the Tribunal could not cure. The Tribunal therefore did not commit jurisdictional error in affirming the visa refusals, and the Federal Magistrates Court did not err in dismissing judicial review. The extension of time was granted, but the appeal was dismissed with costs.

Jurisdiction
Australia
Judgment Date
01 April 2009
Procedural Posture
Migration Appeal From the Federal Magistrates Court of Australia Concerning Refusal of Subclass 442 Occupational Trainee Visas / Application for Extension of Time to Appeal and Appeal
Outcome
Extension of time granted; appeal dismissed with costs.
Legal Topics
['reviewability of Nomination Refusal' 'subclass 442 Occupational Trainee Visa' 'migration Review Tribunal Jurisdiction' 'jurisdictional Error' 'authority of Single Judges of the Federal Court']
['administrative Law' 'migration' 'practice and Procedure'] ['reviewability of Nomination Refusal' 'subclass 442 Occupational Trainee Visa' 'migration Review Tribunal Jurisdiction' 'jurisdictional Error' 'authority of Single Judges of the Federal Court']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Magistrates Court of Australia Concerning Refusal of Subclass 442 Occupational Trainee Visas / Application for Extension of Time to Appeal and Appeal

Legal Issues

  1. 1 ['Whether a decision not to approve a nomination made for the purpose of cl 442.222(1) of Sch 2 to the Migration Regulations was reviewable by the Migration Review Tribunal.' "Whether the Migration Review Tribunal committed jurisdictional error by affirming the delegate's refusal of the appellants' visa applications where there was no approved nomination." "Whether the Federal Magistrates Court erred in dismissing judicial review of the Migration Review Tribunal's decision." 'Whether the authority of judgments of single judges of the Federal Court changes according to whether they sit in original or appellate jurisdiction.']

Ratio Decidendi

Because the refusal to approve the occupational training nomination under cl 442.222(1) was not reviewable by the Migration Review Tribunal, the visa applications had a fatal defect that the Tribunal could not cure. The Tribunal therefore did not commit jurisdictional error in affirming the visa refusals, and the Federal Magistrates Court did not err in dismissing judicial review. The extension of time was granted, but the appeal was dismissed with costs.

Court Disposition

Extension of time granted; appeal dismissed with costs.

Orders

  • ['The appellants are granted an extension of time in which to appeal.' 'The appeal is dismissed with costs.']