Mir v Minister for Immigration and Border Protection [2018] FCA 697

Mir v Minister for Immigration and Border Protection [2018] FCA 697

The proposed appeal had no merit because Mr Mir did not satisfy cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth): when his visa application was made it was not accompanied by evidence that he had applied for an Australian Federal Police check during the preceding 12 months, and he only applied for and provided the check months later. Clause 485.213 was a criterion for grant of the visa, not a validity requirement, and Berenguel and Gowda concerned materially different criteria. The primary judge was correct to find no arguable jurisdictional error by the Tribunal, so the interlocutory decision was not attended by sufficient doubt to justify leave, notwithstanding the short...

Jurisdiction
Australia
Judgment Date
08 May 2018
Procedural Posture
Application for Extension of Time and Leave to Appeal From Interlocutory Judgment Dismissing Judicial Review Proceedings / Federal Court Application for Extension of Time and Leave to Appeal
Outcome
The application for an extension of time and leave to appeal was dismissed, and the applicant was ordered to pay the first respondent's costs.
Legal Topics
['extension of Time' 'leave to Appeal Interlocutory Judgment' 'adjournment' 'judicial Review' 'skilled (subclass 485) Visa' 'australian Federal Police Check' 'jurisdictional Error']
['practice and Procedure' 'migration' 'administrative Law'] ['extension of Time' 'leave to Appeal Interlocutory Judgment' 'adjournment' 'judicial Review' 'skilled (subclass 485) Visa' 'australian Federal Police Check' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From Interlocutory Judgment Dismissing Judicial Review Proceedings / Federal Court Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted for an application for leave to appeal filed three days out of time.' "Whether leave to appeal should be granted from the Federal Circuit Court's interlocutory dismissal of the judicial review application." "Whether the primary judge's decision was attended by sufficient doubt to warrant reconsideration by an appellate court." 'Whether cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required evidence, when the visa application was made, that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the application.' 'Whether non-compliance with cl 485.213 was a matter affecting validity of the visa application or a criterion for grant of the visa.' 'Whether the applicant had advanced a sufficient basis for an adjournment of the hearing.']

Ratio Decidendi

The proposed appeal had no merit because Mr Mir did not satisfy cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth): when his visa application was made it was not accompanied by evidence that he had applied for an Australian Federal Police check during the preceding 12 months, and he only applied for and provided the check months later. Clause 485.213 was a criterion for grant of the visa, not a validity requirement, and Berenguel and Gowda concerned materially different criteria. The primary judge was correct to find no arguable jurisdictional error by the Tribunal, so the interlocutory decision was not attended by sufficient doubt to justify leave, notwithstanding the short...

Court Disposition

The application for an extension of time and leave to appeal was dismissed, and the applicant was ordered to pay the first respondent's costs.

Orders

  • ['The application for an extension of time and leave to appeal filed on 7 July 2017 be dismissed.' 'The applicant pay the costs of the first respondent as agreed or taxed.']