Hui v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUI v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 486
MIGRATION – MRT decision – skilled independent visa – refused by delegate on opinion that claimed qualification did not exist – decision affirmed by Tribunal because the qualification was not ‘relevant to’ nominated skilled occupation – no jurisdictional error in reasoning of Tribunal – procedural fairness when raising new issue – issue sufficiently raised at end of hearing – no jurisdictional error found – application dismissed.
Migration Act 1958 (Cth), ss.47, 65, 348, 349, 351, 357A, 359AA, 359B, 360, 474, 476, 477
Migration Regulations 1994 (Cth), Schedule 2, Subclass 880, cll.880.215, 880.224, 880.230
Ahmed v Minister for Immigration & Citizenship [2011] HCA Trans 35
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
AZAAD v Minister for Immigration & Citizenship (2010) 189 FCR 494
Herft v Minister for Immigration [2007] FMCA 756
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
MZYII v Minister for Immigration & Citizenship [2011] FMCA 193
Pasula v Minister for Immigration [2010] FMCA 219
Plaintiff M90/2009 v Minister for Immigration and Citizenship& Anor [2009] HCATrans 279
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Seema & Ors v Minister for Immigration [2011] FMCA 454
SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZDFZ v Minister for Immigration & Citizenship (2008) 168 FCR 1
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
SZNZU v Minister for Immigration [2010] FMCA 197
Thongsuk v Minister for Immigration [2007] FMCA 655
Vu vMinister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59
Zhou v Minister for Immigration [2010] FMCA 653
Applicant: XING HUI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 2820 of 2010
Judgment of: Smith FM
Hearing dates: 6 April, 16 June 2011
Delivered at: Sydney
Delivered on: 2 August 2011

REPRESENTATION

Counsel for the Applicant: In Person
Counsel for the Respondents: Ms S Sirtes
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 December 2010.

  2. The application is dismissed.

  3. The applicant must pay the first respondent’s costs in the sum of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2010

XING HUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. Ms Hui studied in Australia before applying on 26 August 2005 for a ‘Skilled – Independent Overseas Student’ residence visa Class DD, subclass 880.  The decision-making on her application became protracted, and the Department of Immigration had difficulty verifying one of her qualifications, a Certificate III in Hospitality (Commercial Cookery) issued by Sydney International College of Business (“SICB”) dated 23 June 2005.   Eventually, a delegate refused…

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Details
Case
[2011] FMCA 486
Decision Date

CaseChat Overview and Summary

The matter before the court was a case between Hui and the Minister for Immigration, concerning an application for judicial review of a decision made under the Migration Act 1958 (Cth). Hui sought an extension of time to lodge an application for review and for the application itself to be granted. The Federal Court of Australia was tasked with determining whether the application met the criteria for an extension of time and if the application for review was valid.

The primary legal issues before the court were whether the applicant had demonstrated sufficient grounds to warrant an extension of time under section 477(1) of the Migration Act, and whether the application for review was substantively valid. The court had to consider the principles of procedural fairness and whether there were any exceptional circumstances that justified an extension of time.

In delivering its judgment, the court found that while the applicant had shown some justification for the delay, it did not meet the threshold required for an extension of time. The court held that the applicant had not demonstrated sufficient grounds to warrant an extension, as there were no exceptional circumstances present that would justify such a delay. Additionally, the court determined that the application for review was not substantively valid, leading to its dismissal. Consequently, the court ordered that the application be dismissed, and the applicant was directed to pay the respondent’s costs in the sum of $7,000.

Orders

Orders of the court

1.

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 December 2010.

2.

The application is dismissed.

3.

The applicant must pay the first respondent’s costs in the sum of $7,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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