Kim v Minister for Immigration and Citizenship [2007] FCA 1695

Kim v Minister for Immigration and Citizenship [2007] FCA 1695

Although the Federal Magistrate's decision was affected by legal error following Minister for Immigration and Citizenship v SZKKC, remittal would be futile because it was not open to the Minister to grant the visa application without a lodged nomination of occupational training at the time of decision, and the application for review by the Migration Review Tribunal was out of time. The application for leave to appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
05 November 2007
Procedural Posture
Application for Leave to Appeal / Federal Court Application for Leave to Appeal From a Judgment of Federal Magistrate Emmett Dismissing an Application for Review of a Migration Review Tribunal Decision
Outcome
Application dismissed; no order as to costs.
Legal Topics
['judicial Review of Migration Decisions' 'time Limits' 'jurisdiction' 'futility of Remittal' 'occupational Training Visa Nomination Requirement']
['migration Law' 'administrative Law'] ['judicial Review of Migration Decisions' 'time Limits' 'jurisdiction' 'futility of Remittal' 'occupational Training Visa Nomination Requirement']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Federal Court Application for Leave to Appeal From a Judgment of Federal Magistrate Emmett Dismissing an Application for Review of a Migration Review Tribunal Decision

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the Federal Magistrates Court decision was affected by legal error in its consideration of s 477 of the Migration Act 1958 (Cth).' 'Whether remittal to the Federal Magistrate or the Migration Review Tribunal would be futile because the Minister could not grant the visa application and the Tribunal review application was out of time.']

Ratio Decidendi

Although the Federal Magistrate's decision was affected by legal error following Minister for Immigration and Citizenship v SZKKC, remittal would be futile because it was not open to the Minister to grant the visa application without a lodged nomination of occupational training at the time of decision, and the application for review by the Migration Review Tribunal was out of time. The application for leave to appeal was therefore dismissed.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • ['The application be dismissed.' 'There be no order as to costs.']