Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 297

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 297

No jurisdictional error by the Tribunal and no error by the Federal Circuit Court was established because Northland's nomination application had been refused and that refusal was affirmed by the Tribunal, with no further review brought by Northland. As a result, there was no approved nomination in relation to Mr Ali, so he could not satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal in Mr Ali's review was not empowered to review Northland's nomination decision, and any issue about IMMI 17/040 did not alter the decisive absence of an approved nomination.

Jurisdiction
Australia
Judgment Date
29 March 2022
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal to the Federal Court of Australia From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision
Outcome
Leave to amend grounds of appeal granted; appeal dismissed with costs.
Legal Topics
['temporary Business Entry (class Uc) Subclass 457 Visa' 'standard Business Sponsor Nomination' 'approved Nomination Requirement' 'merits Review by Administrative Appeals Tribunal' 'jurisdictional Error' 'legislative Instruments IMMI 16/059 and IMMI 17/040']
['migration Law' 'administrative Law'] ['temporary Business Entry (class Uc) Subclass 457 Visa' 'standard Business Sponsor Nomination' 'approved Nomination Requirement' 'merits Review by Administrative Appeals Tribunal' 'jurisdictional Error' 'legislative Instruments IMMI 16/059 and IMMI 17/040']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in not finding that the Administrative Appeals Tribunal fell into jurisdictional error when affirming refusal of the appellant's subclass 457 visa application." 'Whether the Tribunal erred by relying on the absence of an approved nomination for the appellant under cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).' "Whether changes introduced by IMMI 17/040 and Note 10 could affect the sponsor's nomination application before the Tribunal where the visa and nomination applications pre-dated those changes." "Whether the appellant could challenge, in his visa review proceeding, the Tribunal's decision concerning Northland Commercial Services Pty Ltd's nomination application."]

Ratio Decidendi

No jurisdictional error by the Tribunal and no error by the Federal Circuit Court was established because Northland's nomination application had been refused and that refusal was affirmed by the Tribunal, with no further review brought by Northland. As a result, there was no approved nomination in relation to Mr Ali, so he could not satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal in Mr Ali's review was not empowered to review Northland's nomination decision, and any issue about IMMI 17/040 did not alter the decisive absence of an approved nomination.

Court Disposition

Leave to amend grounds of appeal granted; appeal dismissed with costs.

Orders

  • ['The appellant have leave to rely on the amended application provided to the Court on 25 March 2021 and filed as a submission on 1 April 2021, and such application stand as his grounds of appeal.' 'The appeal be dismissed.' "The appellant pay the first respondent's cost of the appeal to be determined by a registrar...