Oad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 91

Oad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 91

Leave to appeal was refused because the proposed grounds did not identify error by the Federal Circuit Court or jurisdictional error by the Tribunal. Several grounds accepted the correctness of Judge Driver's conclusion; the invitation for the Federal Court to find or formulate jurisdictional error was rejected; and the assertion that the Applicant was a genuine student did not provide a judicial review ground. The proposed appeal therefore had no prospects of success.

Jurisdiction
Australia
Judgment Date
13 February 2023
Procedural Posture
Migration Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Orders of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review After a Show Cause Hearing
Outcome
The application for leave to appeal was dismissed with costs.
Legal Topics
['student (subclass 573) Visa' 'genuine Applicant for Entry and Stay as a Student' 'judicial Review' 'jurisdictional Error' 'leave to Appeal' 'show Cause Hearing']
['migration' 'administrative Law'] ['student (subclass 573) Visa' 'genuine Applicant for Entry and Stay as a Student' 'judicial Review' 'jurisdictional Error' 'leave to Appeal' 'show Cause Hearing']

Case Brief

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Procedural Posture

Migration Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Orders of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review After a Show Cause Hearing

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's interlocutory orders dismissing the judicial review application under Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)." "Whether the proposed grounds of appeal identified any error by the Federal Circuit Court or any jurisdictional error in the Tribunal's decision affirming refusal of the student visa application." 'Whether the Court should search for or formulate a jurisdictional error argument not put below.']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds did not identify error by the Federal Circuit Court or jurisdictional error by the Tribunal. Several grounds accepted the correctness of Judge Driver's conclusion; the invitation for the Federal Court to find or formulate jurisdictional error was rejected; and the assertion that the Applicant was a genuine student did not provide a judicial review ground. The proposed appeal therefore had no prospects of success.

Court Disposition

The application for leave to appeal was dismissed with costs.

Orders

  • ['The application for leave to appeal be dismissed.' "The Applicant is to pay the First Respondent's costs in the sum of $4000."]