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 |
| 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
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.
The application is dismissed.
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
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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- Case
- [2011] FMCA 486
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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