Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1547

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1547

The appeal was without merit because, at the time of the Tribunal hearing, the first appellant did not have an approved nomination by an approved occupational training sponsor and no review or further nomination application was extant. The mandatory criterion in cl 402.221 could not be met, and any new nomination after 19 November 2016 could not satisfy reg 2.72I because that regulation had been repealed. The Tribunal therefore made no error of law in affirming the refusal of the visa without considering cl 402.214, and the Federal Circuit Court was correct to dismiss the judicial review application.

Jurisdiction
Australia
Judgment Date
07 December 2021
Procedural Posture
Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Migration Visa Decision / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['training and Research (class Gc) (subclass 402) Visa' 'mandatory Visa Criteria' 'approved Nomination by an Approved Occupational Training Sponsor' 'repeal of Nomination Approval Criteria' 'procedural Fairness']
['migration Law' 'administrative Law'] ['training and Research (class Gc) (subclass 402) Visa' 'mandatory Visa Criteria' 'approved Nomination by an Approved Occupational Training Sponsor' 'repeal of Nomination Approval Criteria' 'procedural Fairness']

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Procedural Posture

Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal Migration Visa Decision / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Tribunal erred by affirming refusal of the subclass 402 visa because the first appellant did not meet cl 402.221 of sch 2 to the Migration Regulations 1994 (Cth).' "Whether the Tribunal was required to consider cl 402.214 before affirming the delegate's decision." 'Whether there was procedural unfairness by the Tribunal making a decision on the visa application prior to making a decision on the nomination application.' 'Whether a new nomination lodged after 19 November 2016 could satisfy cl 402.221 after repeal of reg 2.72I.']

Ratio Decidendi

The appeal was without merit because, at the time of the Tribunal hearing, the first appellant did not have an approved nomination by an approved occupational training sponsor and no review or further nomination application was extant. The mandatory criterion in cl 402.221 could not be met, and any new nomination after 19 November 2016 could not satisfy reg 2.72I because that regulation had been repealed. The Tribunal therefore made no error of law in affirming the refusal of the visa without considering cl 402.214, and the Federal Circuit Court was correct to dismiss the judicial review application.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The appellants to pay the costs of the first respondent, such costs to be taxed in default of agreement.']