Singh v Minister for Home Affairs [2019] FCA 291

Singh v Minister for Home Affairs [2019] FCA 291

The appeal failed because, when the appellant applied to the Tribunal on 28 September 2017, SSS WA Group Pty Ltd was not an approved sponsor, the appellant was not nominated by an approved sponsor, and SSS WA had not sought Tribunal review of the 10 August 2017 refusal of its sponsorship application. The visa refusal therefore did not satisfy s 338(2)(d) of the Migration Act 1958 (Cth), was not a Part 5-reviewable decision, and the Tribunal had no power or authority to review it. The pending August Sponsorship Application could not cure the lack of authority because the statutory requirement had to be met at the time the Tribunal review application was made.

Jurisdiction
Australia
Judgment Date
01 March 2019
Procedural Posture
Migration Appeal / Appeal From a Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision That It Lacked Authority to Review a Visa Refusal
Outcome
Appeal dismissed with costs as agreed or assessed.
Legal Topics
['temporary Work (skilled) (subclass 457) Visa' 'part 5 Reviewable Decisions' 'approved Sponsor' 'nomination by Approved Sponsor' 'administrative Appeals Tribunal Authority to Review']
['migration Law' 'administrative Law'] ['temporary Work (skilled) (subclass 457) Visa' 'part 5 Reviewable Decisions' 'approved Sponsor' 'nomination by Approved Sponsor' 'administrative Appeals Tribunal Authority to Review']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From a Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision That It Lacked Authority to Review a Visa Refusal

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in dismissing the application for judicial review' 'Whether the visa refusal was a Part 5-reviewable decision under s 338(2)(d) of the Migration Act 1958 (Cth)' 'Whether the appellant was sponsored by an approved sponsor at the time the application for review was made' 'Whether a pending sponsorship application or undecided nomination application gave the Tribunal authority to review the visa refusal']

Ratio Decidendi

The appeal failed because, when the appellant applied to the Tribunal on 28 September 2017, SSS WA Group Pty Ltd was not an approved sponsor, the appellant was not nominated by an approved sponsor, and SSS WA had not sought Tribunal review of the 10 August 2017 refusal of its sponsorship application. The visa refusal therefore did not satisfy s 338(2)(d) of the Migration Act 1958 (Cth), was not a Part 5-reviewable decision, and the Tribunal had no power or authority to review it. The pending August Sponsorship Application could not cure the lack of authority because the statutory requirement had to be met at the time the Tribunal review application was made.

Court Disposition

Appeal dismissed with costs as agreed or assessed.

Orders

  • ['The appeal be dismissed with costs as agreed or assessed.']