Jia v Minister for Immigration & Anor

[2011] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JIA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 422

MIGRATION – Alleged jurisdictional error by Migration Review Tribunal – consideration of “exceptional circumstances” in reg.856.213(c)(ii) of the Migration Regulations 1994 – whether Tribunal addressed particular claim made by applicant – whether failure to address claim led to jurisdictional error.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Hatcher v Cohn [2004] FCA 1548
Gaffar v Minister for Immigration and Multicultural Affairs (2000) FCA 293
Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612
Craig v State of South Australia (1995) 184 CLR 163
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant: WEN SHU JIA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1226 of 2010

Judgment of: Burchardt FM

Hearing date: 11 May 2011

Date of Last Submission: 11 May 2011

Delivered at: Melbourne

Delivered on: 16 June 2011

REPRESENTATION

Counsel for the Applicant: Mr C. Fairfield

Solicitors for the Applicant: Cornwall Stodart Lawyers

Counsel for the Respondents: Mr W. Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 30 July 2010.

2. A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs in the amount of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1226 of 2010

WEN SHU JIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 30 July 2010.  Putting the matter shortly he says that the Tribunal fell into jurisdictional error because it failed to address the applicant’s case as put to the Tribunal.  For the reasons that follow, I think that the applicant is right and that he should have the orders that he seeks.

Facts

1. The facts in this matter are not contentious and what follows is an amalgam of the written submissions of the parties and the reasons for judgment of the Tribunal.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 1 February 2005.  He was the holder of a sub-class 457 visa.

3. He had previously spent a year in Japan where he had obtained a welder’s qualification, although I note that in his account of his experiences he says this was to do with robotics.  Following several transient periods of employment, the applicant obtained a job as a welder with a company called Dimal Metal Works, for whom he still works.  The company regards the applicant highly as an employee and wishes to keep him.  I will return to the reasons why the company wishes to keep him in due course.

4. On 30 June 2009 the applicant…