Lee v Minister for Immigration and Citizenship [2007] FCAFC 62

Lee v Minister for Immigration and Citizenship [2007] FCAFC 62

The Tribunal was required by s 379G to give the s 359A invitation to the appellants' authorised recipient. Because it did not do so, s 359C did not apply and the Tribunal was required by s 360 to invite the appellants to appear. Its failure to do so was jurisdictional error. The Federal Magistrate erred in refusing relief for futility because the sponsorship requirement was to be assessed at the time of a valid future decision and the Court could not be certain that the appellants would not then have an approved standard business sponsor. However, the appellants were not competent to challenge the separate Tribunal decision concerning Konel Trading Co's sponsorship application, and that...

Jurisdiction
Australia
Judgment Date
11 May 2007
Procedural Posture
Migration Appeal From the Federal Magistrates Court Concerning Constitutional Writs and Relief Under the Administrative Decisions (judicial Review) Act 1977 (cth) in Respect of Migration Review Tribunal Decisions / Full Court Appeal From an Order Dismissing the Appellants' Federal Magistrates Court Application
Outcome
Appeal allowed; Federal Magistrate's orders set aside; certiorari and mandamus granted in relation to the appellants' visa review; challenge to the Tribunal's decision on Konel Trading Co's sponsorship review dismissed.
Legal Topics
['temporary Business Entry (class Uc) Visas' 'subclass 457 (business (long Stay))' 'approved Standard Business Sponsor' 'authorised Recipient' 'migration Review Tribunal Procedure' 'jurisdictional Error' 'procedural Fairness' 'discretionary Relief' 'futility' 'standing to Challenge Sponsor Review Decision']
['migration' 'administrative Law'] ['temporary Business Entry (class Uc) Visas' 'subclass 457 (business (long Stay))' 'approved Standard Business Sponsor' 'authorised Recipient' 'migration Review Tribunal Procedure' 'jurisdictional Error' 'procedural Fairness' 'discretionary Relief' 'futility' 'standing to Challenge Sponsor Review Decision']

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Procedural Posture

Migration Appeal From the Federal Magistrates Court Concerning Constitutional Writs and Relief Under the Administrative Decisions (judicial Review) Act 1977 (cth) in Respect of Migration Review Tribunal Decisions / Full Court Appeal From an Order Dismissing the Appellants' Federal Magistrates Court Application

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal complied with s 359A of the Migration Act 1958 (Cth) when it sent the invitation to comment to the first appellant care of the authorised recipient and copied it to the first appellant, rather than giving it to the authorised recipient under s 379G.' 'Whether failure to comply with s 379G meant that s 359C did not apply and the Tribunal was obliged under s 360 to invite the appellants to appear before it.' 'Whether that failure constituted jurisdictional error.' 'Whether the Federal Magistrate erred in refusing relief on the ground that remittal would be futile because there was no approved standard business sponsor.' "Whether the appellants could challenge the Tribunal's separate decision affirming refusal of Konel Trading Co's sponsorship application."]

Ratio Decidendi

The Tribunal was required by s 379G to give the s 359A invitation to the appellants' authorised recipient. Because it did not do so, s 359C did not apply and the Tribunal was required by s 360 to invite the appellants to appear. Its failure to do so was jurisdictional error. The Federal Magistrate erred in refusing relief for futility because the sponsorship requirement was to be assessed at the time of a valid future decision and the Court could not be certain that the appellants would not then have an approved standard business sponsor. However, the appellants were not competent to challenge the separate Tribunal decision concerning Konel Trading Co's sponsorship application, and that...

Court Disposition

Appeal allowed; Federal Magistrate's orders set aside; certiorari and mandamus granted in relation to the appellants' visa review; challenge to the Tribunal's decision on Konel Trading Co's sponsorship review dismissed.

Orders

  • ['The name of the first respondent be amended from "Minister for Immigration and Multicultural Affairs" to "Minister for Immigration and Citizenship".' 'The time for filing the notice of contention be extended up to and including 30 October 2006.' 'The appeal be allowed and the orders of the Federal Magistrate made...