Jahangir v Minister For Immigration & Border Protection [2014] FCA 218

Jahangir v Minister For Immigration & Border Protection [2014] FCA 218

The requirement in subclause 885.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) that an applicant met the requirements of subitem 1136(5) of Schedule 1 (to hold a subclass 485 visa) is a time of application criterion; an applicant must hold such a visa at the time of application, not afterwards. The Tribunal could not treat a later date as the date of application, as the relevant date is the actual date of lodgement.

Jurisdiction
Australia
Judgment Date
14 March 2014
Procedural Posture
Appeal / Judgment on Appeal From Federal Circuit Court
Outcome
appeal dismissed
Legal Topics
['visas' 'statutory Interpretation' 'skilled (residence) (class Vb) Subclass 885' 'time of Application Criteria']
['migration'] ['visas' 'statutory Interpretation' 'skilled (residence) (class Vb) Subclass 885' 'time of Application Criteria']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Federal Circuit Court

Legal Issues

  1. 1 ['Whether the requirement in subclause 885.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) that the visa applicant met the requirements of subitem 1136(5) of Schedule 1 (by holding a subclass 485 visa) is a time of application criterion or can be satisfied after lodgement but before decision' 'Whether the Tribunal could treat the date of grant of subclass 485 visa (4 May 2009) as the date of the subclass 885 visa application']

Ratio Decidendi

The requirement in subclause 885.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) that an applicant met the requirements of subitem 1136(5) of Schedule 1 (to hold a subclass 485 visa) is a time of application criterion; an applicant must hold such a visa at the time of application, not afterwards. The Tribunal could not treat a later date as the date of application, as the relevant date is the actual date of lodgement.

Court Disposition

appeal dismissed

Orders

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