Maskey v Minister for Immigration and Border Protection [2018] FCA 1268

Maskey v Minister for Immigration and Border Protection [2018] FCA 1268

The appeal was dismissed because the appellants did not establish error in the Federal Circuit Court's conclusion that the Tribunal committed no jurisdictional error. The Tribunal had no evidence that the first appellant satisfied the employer nomination requirements of cl 457.223(4)(a), and the employer later confirmed it did not wish to proceed with the nomination. The claimed injuries were not before the Tribunal and were not relevant to whether Part 457 of Schedule 2 to the Regulations was satisfied. After the appellants failed to provide information requested under s 359 by the nominated date, the Tribunal was entitled under ss 359C and 360(3) to proceed without further information...

Jurisdiction
Australia
Judgment Date
23 August 2018
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia
Outcome
Appeal dismissed with costs; interlocutory application dated 13 July 2018 dismissed.
Legal Topics
['temporary Business Entry (class Uc) Subclass 457 Visa' 'employer Nomination' 'procedural Fairness' 'administrative Appeals Tribunal Review' 'jurisdictional Error' 'adjournment Application']
['migration' 'administrative Law'] ['temporary Business Entry (class Uc) Subclass 457 Visa' 'employer Nomination' 'procedural Fairness' 'administrative Appeals Tribunal Review' 'jurisdictional Error' 'adjournment Application']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in dismissing the appellants' application for judicial review of the Tribunal's decision affirming refusal of subclass 457 visas." "Whether information about the first appellant's claimed injuries was a relevant consideration for the Tribunal's decision under Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth)." 'Whether the Tribunal denied procedural fairness by proceeding after the appellants did not provide requested information by the nominated date and lost their entitlement to a hearing.' 'Whether the interlocutory application to vacate the appeal hearing should be granted.']

Ratio Decidendi

The appeal was dismissed because the appellants did not establish error in the Federal Circuit Court's conclusion that the Tribunal committed no jurisdictional error. The Tribunal had no evidence that the first appellant satisfied the employer nomination requirements of cl 457.223(4)(a), and the employer later confirmed it did not wish to proceed with the nomination. The claimed injuries were not before the Tribunal and were not relevant to whether Part 457 of Schedule 2 to the Regulations was satisfied. After the appellants failed to provide information requested under s 359 by the nominated date, the Tribunal was entitled under ss 359C and 360(3) to proceed without further information...

Court Disposition

Appeal dismissed with costs; interlocutory application dated 13 July 2018 dismissed.

Orders

  • ['The appeal be dismissed.' "The first and second appellants pay the first respondent's costs of the appeal as agreed or taxed."]