Nguyen v Minister for Home Affairs [2019] FCA 2031

Nguyen v Minister for Home Affairs [2019] FCA 2031

Leave to raise the new grounds was refused because the appellant gave no adequate explanation for not raising them below and the grounds lacked merit. At the time the appellant applied to the Tribunal for review, he was not sponsored by an approved sponsor and no relevant sponsorship or nomination review was pending, so the delegate's decision was not a Part 5-reviewable decision and the Tribunal had no jurisdiction. A later or proposed nomination by a new employer could not cure the absence of jurisdiction at the relevant time, and the Tribunal had no utility or power to adjourn under s 363(1)(b) where there was no review of a decision before it.

Jurisdiction
Australia
Judgment Date
04 December 2019
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision / Appeal to the Federal Court of Australia; Application for Leave to Raise New Grounds of Appeal
Outcome
Appeal dismissed; leave to raise new grounds of appeal refused.
Legal Topics
['temporary Work (skilled) (subclass 457) Visa' 'part 5 Reviewable Decisions' 'administrative Appeals Tribunal Jurisdiction' 'approved Sponsor and Nomination Requirements' 'legal Unreasonableness' 'adjournment' 'leave to Raise New Grounds on Appeal']
['migration' 'administrative Law' 'practice and Procedure'] ['temporary Work (skilled) (subclass 457) Visa' 'part 5 Reviewable Decisions' 'administrative Appeals Tribunal Jurisdiction' 'approved Sponsor and Nomination Requirements' 'legal Unreasonableness' 'adjournment' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision / Appeal to the Federal Court of Australia; Application for Leave to Raise New Grounds of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to raise new grounds of appeal not raised before the Federal Circuit Court.' 'Whether the Tribunal acted with legal unreasonableness by not adjourning its proceeding to allow the appellant to obtain a fresh nomination from a new employer.' "Whether the delegate's refusal of the appellant's Subclass 457 visa application was a Part 5-reviewable decision under s 338(2)(d) of the Migration Act 1958 (Cth)." "Whether the Tribunal had power to adjourn under s 363(1)(b) of the Migration Act 1958 (Cth) where it had no jurisdiction to review the delegate's decision."]

Ratio Decidendi

Leave to raise the new grounds was refused because the appellant gave no adequate explanation for not raising them below and the grounds lacked merit. At the time the appellant applied to the Tribunal for review, he was not sponsored by an approved sponsor and no relevant sponsorship or nomination review was pending, so the delegate's decision was not a Part 5-reviewable decision and the Tribunal had no jurisdiction. A later or proposed nomination by a new employer could not cure the absence of jurisdiction at the relevant time, and the Tribunal had no utility or power to adjourn under s 363(1)(b) where there was no review of a decision before it.

Court Disposition

Appeal dismissed; leave to raise new grounds of appeal refused.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal."]