Chew v Minister for Immigration

[2007] FMCA 1792

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

1. That the Application is dismissed.

2. 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

1. 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.

2. 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

3. 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

1. 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

2. 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

1. 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.

2. 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: