Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160

Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160

The Tribunal's decision was not affected by jurisdictional error. Schedule 3 criterion 3005 is itself a criterion set out in Schedule 3, and "this Schedule" in cl 3005 means Schedule 3. Because the appellant had previously been granted a substantive visa on 6 July 2010 after relying on criterion 3005 as incorporated into Schedule 2 by a Schedule 2 visa criterion and r 2.03(2), she could not again satisfy criterion 3005 for the purposes of cl 573.211(3)(d). The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
01 December 2014
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Full Court Appeal Against Dismissal of Judicial Review Application
Outcome
Appeal dismissed with costs.
Legal Topics
['student (temporary) (class Tu) Visa' 'jurisdictional Error' 'migration Regulations 1994 (cth) Schedule 2 Cl 573.211(3)(d)' 'migration Regulations 1994 (cth) Schedule 3 Criterion 3005' 'construction of "this Schedule"']
['migration Law' 'administrative Law' 'statutory Construction'] ['student (temporary) (class Tu) Visa' 'jurisdictional Error' 'migration Regulations 1994 (cth) Schedule 2 Cl 573.211(3)(d)' 'migration Regulations 1994 (cth) Schedule 3 Criterion 3005' 'construction of "this Schedule"']

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Full Court Appeal Against Dismissal of Judicial Review Application

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal misconstrued and misapplied cl 573.211 in Schedule 2 and cl 3005 in Schedule 3 to the Migration Regulations 1994 (Cth).' 'Whether the words "this Schedule" in Schedule 3 criterion 3005 refer to Schedule 2 or Schedule 3.' 'Whether the appellant satisfied Schedule 3 criterion 3005 where she had previously been granted a visa on the basis of satisfaction of Schedule 3 criterion 3005 as incorporated into a Schedule 2 criterion.' 'Whether dicta in Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66; (2013) 136 ALD 226 were plainly wrong.']

Ratio Decidendi

The Tribunal's decision was not affected by jurisdictional error. Schedule 3 criterion 3005 is itself a criterion set out in Schedule 3, and "this Schedule" in cl 3005 means Schedule 3. Because the appellant had previously been granted a substantive visa on 6 July 2010 after relying on criterion 3005 as incorporated into Schedule 2 by a Schedule 2 visa criterion and r 2.03(2), she could not again satisfy criterion 3005 for the purposes of cl 573.211(3)(d). The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

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