James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1201

James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1201

The appellants could not satisfy cl 457.223(4)(a) because the first nomination for the subclass 457 visa had ceased before the Amending Regulations commenced and item 6704(15) did not apply to revive it, while the second nomination was for a subclass 482 visa and could not constitute the required approved nomination for the subclass 457 visa application under s 140GB. The Tribunal therefore did not make the alleged jurisdictional error, and the primary judge did not err in dismissing the application.

Jurisdiction
Australia
Judgment Date
12 October 2022
Procedural Posture
Migration Appeal / Appeal to the Federal Court of Australia From Orders of the Federal Circuit and Family Court of Australia (division 2)
Outcome
Appeal dismissed.
Legal Topics
['subclass 457 (temporary Work (skilled)) Visa' 'subclass 482 (temporary Skill Shortage) Visa' 'sponsor Nominations Under S 140 GB of the Migration Act 1958 (cth)' 'transitional Provisions' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['subclass 457 (temporary Work (skilled)) Visa' 'subclass 482 (temporary Skill Shortage) Visa' 'sponsor Nominations Under S 140 GB of the Migration Act 1958 (cth)' 'transitional Provisions' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal / Appeal to the Federal Court of Australia From Orders of the Federal Circuit and Family Court of Australia (division 2)

Legal Issues

  1. 1 ['Whether a nomination under s 140GB of the Migration Act 1958 (Cth) expressed to be for a subclass 482 visa could satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth) for an application for a subclass 457 visa.' 'Whether the second nomination could be treated as an approved nomination under s 140GB(1)(b) rather than s 140GB(1)(a).' 'Whether item 6704(15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) meant that the first nomination had not ceased.']

Ratio Decidendi

The appellants could not satisfy cl 457.223(4)(a) because the first nomination for the subclass 457 visa had ceased before the Amending Regulations commenced and item 6704(15) did not apply to revive it, while the second nomination was for a subclass 482 visa and could not constitute the required approved nomination for the subclass 457 visa application under s 140GB. The Tribunal therefore did not make the alleged jurisdictional error, and the primary judge did not err in dismissing the application.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellants pay the Minister's costs of the appeal."]