Joshi v MIMIA

[2005] FMCA 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOSHI v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1116

MIGRATION – Review of Migration Review Tribunal decision – refusal to grant temporary business entry visa – whether Regulation applied – whether error by relying on Australian Standard Classification of Occupations (ASCO).

Migration Act 1958, s.474

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 (18 May 2005)
Zeng Guang Wang v Minister for Immigration & Multicultural Affairs (1998) 30 FCA (30 January 1998)
Ye Hu v John Rees and Minister for Immigration & Ethnic Affairs (1997) 160 FCA (4 March 1997)
Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473

Applicant: RAJEN KISHOR JOSHI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 755 of 2004

Judgment of: McInnis FM

Hearing date: 21 July 2005

Delivered at: Melbourne

Delivered on: 12 August 2005

REPRESENTATION

Counsel for the Applicant: Mr A.F.L. Krohn

Solicitors for the Applicant: Valerie Da Gama Pereira

Counsel for the Respondents: Dr S. Donaghue

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The decision of the Migration Review Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for consideration according to law.

2. The First Respondent shall pay the Applicant's costs of the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 755 of 2004

RAJEN KISHOR JOSHI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application leave was granted to the applicant to add as a second respondent the ‘Migration Review Tribunal’.  Specifically an order was made that leave be granted to add the Migration Review Tribunal (the MRT) as a second respondent nunc pro tunc.  The addition of the MRT as a second respondent is consistent with the recent High Court of Australia decision in the matter of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 (18 May 2005).

2. By way of background, the applicant is a citizen of India who had arrived in Australia on a student (temporary) (class TU) visa on 10 February 1998.  He subsequently held a number of other student visas during the duration of which he obtained a diploma of computer systems from Chisholm Institute.  On 29 August 2003 the applicant applied for a temporary business entry (class UC) subclass 457 (business (long stay)) visa (the visa).  An associated application to sponsor temporary overseas employees was lodged by the applicant's prospective employer, ‘Track-N-Field Pty Ltd’.  On 10 September 2003 the Department wrote to Track-N-Field Pty Ltd to advise that its application for standard business sponsorship had been approved.  It is appropriate to set out an extract from correspondence as follows where the Department in part states,

   “You may now nominate a business activity (ie, occupation) by completing the nomination part of DIMIA form 1196 with this office if you've not already…