Gohil v Minister for Home Affairs

[2019] FCA 977

FEDERAL COURT OF AUSTRALIA

Gohil v Minister for Home Affairs [2019] FCA 977

Appeal from:

Gohil v Minister for Home Affairs [2018] FCCA 3027

File number:

NSD 2030 of 2018

Judge:

PERRAM J

Date of judgment:

21 June 2019

Catchwords:

MIGRATION – appeal from Federal Circuit Court – where Court dismissed application for judicial review of decision of Administrative Appeals Tribunal – where Tribunal found it had no jurisdiction – where appellant was not subject to approved nomination at time of Tribunal decision – whether Tribunal erred in finding it had no jurisdiction

Legislation:

Migration Act 1958 (Cth) ss 140GB, 338, 348

Migration Regulations 1994 (Cth) Sch 2 cl 457.223

Cases cited:

Singh v Minister for Home Affairs [2019] FCA 291

Date of hearing:

20 June 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

Mr M Cleary

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 2030 of 2018

BETWEEN:

SHNEHALBEN DINESHBHAI GOHIL

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	21 JUNE 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs as taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. This is an appeal from the Federal Circuit Court: Gohil v Minister for Home Affairs [2018] FCA 3027. That Court dismissed the Appellant’s application for orders quashing an earlier decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 April 2018. The Tribunal had found that it did not have jurisdiction to review the Appellant’s application for review of a decision by a delegate of the Minister made on 8 March 2018 to refuse to grant the Appellant a Temporary Work (Skilled) (subclass 457) visa.

2. The Appellant, Ms Gohil, is a citizen of India and applied for the visa on 6 April 2016. There were several criteria which needed to be satisfied before the Minister was authorised to issue her with a visa. One such criterion is that an applicant must demonstrate that the nomination of the applicant’s proposed occupation has been approved under s 140GB of the Migration Act 1958 (Cth) (‘the Act’), as required by cl 457.223(4) of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). However, with respect to the Appellant’s application, the delegate of the Minister was not satisfied that this was the case and refused to grant her a visa on that basis.

3. The Appellant applied to the Tribunal for review on 22 March 2018. A decision to refuse to grant a subclass 457 visa is a reviewable decision as defined by s 338(2) of the Act and reg 4.02(4)…