Josan v Minister for Immigration and Border Protection [2017] FCA 1418

Josan v Minister for Immigration and Border Protection [2017] FCA 1418

The appeal was dismissed because the Tribunal's separate finding that the appellant's Diploma in Business Management was not closely related to the nominated occupation of pastry cook was reasoned, independent and open on the evidence, so the procedural fairness breach concerning Public Interest Criterion 4020 did not warrant quashing and remitter. The Minister's short delay in filing the cross-appeal was adequately explained, so time was extended. The cross-appeal was dismissed because the Federal Circuit Court was not shown to have erred in finding utility in the declaration; the Public Interest Criterion 4020 finding could have practical implications for future visa applications...

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review, With Application for Leave to Cross Appeal / Appeal and Cross Appeal in the Federal Court of Australia From Josan V Minister for Immigration and Border Protection [2016] FCCA 493
Outcome
Appeal dismissed; time to file the cross-appeal extended; cross-appeal dismissed; no order as to costs subject to any application to set aside or vary the costs order within 5 days.
Legal Topics
['skilled (residence) (class Vb) Subclass 886 (skilled Sponsored) Visa' 'public Interest Criterion 4020' 'bogus Document' 'procedural Fairness' 'access to Tribunal Material Under S 362 A' 'non Disclosure Certificate Under S 375 A' 'declaratory Relief' 'closely Related Study Requirement' 'extension of Time for Cross Appeal']
['migration Law' 'administrative Law'] ['skilled (residence) (class Vb) Subclass 886 (skilled Sponsored) Visa' 'public Interest Criterion 4020' 'bogus Document' 'procedural Fairness' 'access to Tribunal Material Under S 362 A' 'non Disclosure Certificate Under S 375 A' 'declaratory Relief' 'closely Related Study Requirement' 'extension of Time for Cross Appeal']

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review, With Application for Leave to Cross Appeal / Appeal and Cross Appeal in the Federal Court of Australia From Josan V Minister for Immigration and Border Protection [2016] FCCA 493

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred by not quashing the Tribunal decision and remitting it after finding procedural unfairness in relation to Public Interest Criterion 4020.' "Whether the Tribunal's breach of procedural fairness in relation to the s 375A material infected its separate finding that the appellant did not satisfy the closely related study criterion." "Whether there was utility in the Federal Circuit Court's declaration that the Tribunal erred in finding breach of Public Interest Criterion 4020." 'Whether time should be extended for the Minister to file the cross-appeal.']

Ratio Decidendi

The appeal was dismissed because the Tribunal's separate finding that the appellant's Diploma in Business Management was not closely related to the nominated occupation of pastry cook was reasoned, independent and open on the evidence, so the procedural fairness breach concerning Public Interest Criterion 4020 did not warrant quashing and remitter. The Minister's short delay in filing the cross-appeal was adequately explained, so time was extended. The cross-appeal was dismissed because the Federal Circuit Court was not shown to have erred in finding utility in the declaration; the Public Interest Criterion 4020 finding could have practical implications for future visa applications...

Court Disposition

Appeal dismissed; time to file the cross-appeal extended; cross-appeal dismissed; no order as to costs subject to any application to set aside or vary the costs order within 5 days.

Orders

  • ['The appeal be dismissed.' 'The time within which to file the cross-appeal be extended.' 'The cross-appeal be dismissed.' 'Subject to order 5, there be no order as to costs.' 'Any application to set aside or vary order 4 be made within 5 days.']