Chew v Minister for Immigration
[2007] FMCA 1792
•5 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEW & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1792 |
| MIGRATION – Migration Review Tribunal – Employer Nomination – application for review of MRT decision – employer and employee applications linked and heard together – employer’s application dismissed – costs. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.15, sch. 1 |
| Applicant: | LIN MEE CHUN CHEW & OTHERS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | LNG 32 of 2006 |
| Judgment of: | Roberts FM |
| Hearing date: | 28 May 2007 |
| Date of Last Submission: | 28 May 2007 |
| Delivered at: | Hobart |
| Delivered on: | 5 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Argyle Law |
| Counsel for the Respondent: | Mr Moseley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of one thousand five hundred dollars ($1,500.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNG 32 of 2006
| LIN MEE CHUN CHEW & OTHERS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant LIN MEE CHUN CHEW and other members of her family are seeking a review of a decision of the Migration Review Tribunal (“MRT”) of 7 August 2006 and the quashing of that decision. The decision relates to a nomination of the applicant (“the employee”) by EVA AIRWAYS CORPORATION (“the employer”) under the Employer Nomination Scheme for a position in Sydney.
The employer has also made a similar application[1] and the two applications were heard together. It was accepted by counsel that both applications are inextricably linked and must stand or fall together.
[1] LNG 33 of 2006
The respondents are the Minister for Immigration and Citizenship (“the Minister”) and the MRT. The MRT submitted to the jurisdiction of the Court but did not take any other part in the proceedings. The Minister opposed the application.
Outcome
In my decision in relation to the employer’s application which was handed down today[2], I concluded that the employer’s application must be dismissed. It necessarily follows that the employee’s application must also be dismissed.
[2] [2007] FMCA 1791
Although one may have some sympathy for an applicant who has been living in Australia since 1986 and has two children who were born in this country[3], those are not matters that carry any weight in the decision that I have to make.
[3] Court Book page 3
Costs
Rule 44.15 of the Federal Magistrates Court Rules 2001 provides:
The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1.
Part 2 of Schedule 1 provides that the Court may make an order for costs in the sum of $5,000 if the proceeding is concluded at a final hearing. However, this application was heard at the same time as the application by the employer, Eva Airways Corporation, and I said in that matter that it was appropriate to order for the employer to pay a lesser sum because the applications were heard together. The same applies in this case. In my view the applicant in this matter should only be liable for one thousand five hundred dollars.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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