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

FEDERAL COURT OF AUSTRALIA

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

Appeal from: Sapkota v Minister for Immigration [2014] FCCA 1285

Parties: SRIJANA GURUNG SAPKOTA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL

File number: VID 401 of 2014

Judges: KENNY, GREENWOOD, TRACEY, PERRAM AND ROBERTSON JJ

Date of judgment: 1 December 2014

Catchwords: MIGRATION – whether jurisdictional error on the part of the Migration Review Tribunal – the Tribunal affirmed the decision of the delegate not to grant the appellant a Student (Temporary) (Class TU) visa – the Tribunal held that a visa was previously granted to the appellant on the basis of the satisfaction of the criteria set out in Schedule 3 to the Migration Regulations 1994 (Cth) and accordingly the appellant did not satisfy criterion 3005 and the requirements of cl 573.211(3)(d) – whether the Tribunal misconstrued the words "the applicant satisfies Schedule 3 criterion 3005" within the meaning of cl 573.211(3)(d) of Schedule 2 to the Migration Regulations where Schedule 3 criterion 3005 referred to a visa not having previously been granted to the visa applicant on the basis of the satisfaction of any of the criteria set out in "this Schedule" – whether "this Schedule" meant Schedule 2 or Schedule 3 – whether dicta in Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66; (2013) 136 ALD 226 plainly wrong

Legislation: Migration Act 1958 (Cth) ss 31, 65 Migration Regulations 1994 (Cth) rr 1.03, 2.01, 2.03(1), 2.03(2), Sch 2 cl 573.211(3)(d), Sch 3 cl 3005