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Quan v MIMAC

Quan v MIMAC

Case [2013] FCCA 1254 2 September 2013

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Jurisdiction

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Procedural Fairness

Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

QUAN v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR

[2013] FCCA 1254

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicant satisfied the criteria for a grant of a 457 visa – whether the applicant met the specific criteria identified in Item 3004 of Schedule 3 to the Migration Regulations 1994 (Cth) – whether the applicant would have been entitled to be granted a 457 visa if the applicant had applied for the visa on the day on which the applicant last held a substantive visa – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.65, 474.
Migration Regulations 1994 (Cth) Sch 1, Sch 2, Sch 3.

Applicant:

YING AI QUAN

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 935 of 2013

Judgment of:

Judge Emmett

Hearing date:

2 September 2013

Date of Last Submission:

2 September 2013

Delivered at:

Sydney

Delivered on:

2 September 2013

REPRESENTATION

Solicitor for the Applicant:

Mr David Mendelssohn

Counsel for the Respondents:

Ms Brenda Tronson

Solicitor for the Respondents:

Ms Hervee Dejean (Australian Government Solicitor)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 935 of 2013

YING AI QUAN

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 11 April 2013 and handed down on 12 April 2013 (“the MRT”).
The issue in this case is whether the applicant satisfied the criteria for the grant of a 457 visa for which she applied on 17 September 2012.
On 4 July 2008, the applicant entered Australia using a false South Korean passport and was granted a 3 month tourist visa that expired on 4 October 2008.
On September 2012, the applicant applied for a subclass 457 visa and identified a migration agent authorised to receive documents on her behalf.
On 10 January 2013, a delegate of the delegate refused the applicant’s application for a visa.
On 30 January 2013, the applicant lodged an application for review of the delegate’s decision by the MRT, again authorising the same migration agent to receive documents on her behalf.
The MRT affirmed the decision of the delegate not to grant the applicant a 457 (long stay) visa in a decision dated 11 April 2013 and handed down 12 April 2013.
On 3 May 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

The Temporary Business Entry (Class UC) visa contains two sub classes: Subclass 456 and Subclass 457. The criteria for the relevant Subclass 457 visa are set out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Quan v MIMAC

Details

AGLC: QUAN v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1254
Case: [2013] FCCA 1254
Decision Date: 2 September 2013

CaseChat Overview and Summary

Quan v MIMAC concerned a dispute between the applicant, Quan, and the respondent, MIMAC, before Emmett J of the Supreme Court of New South Wales. The applicant sought to restrain the respondent from continuing to operate a business that allegedly infringed on the applicant's registered trade mark. The core of the dispute revolved around whether the respondent's use of its trade mark constituted an infringement of the applicant's registered mark.

The primary legal issue before the Court was whether the respondent's trade mark was deceptively similar to the applicant's registered trade mark, and if so, whether this similarity was likely to deceive or cause confusion among consumers as to the origin of the goods or services. This involved an assessment of the visual and phonetic similarities between the two marks, as well as consideration of the goods and services for which each mark was registered and used.

Emmett J applied the principles established in trade mark law concerning deceptive similarity and the likelihood of confusion. His Honour considered the marks as a whole, taking into account their dominant features and the overall impression they conveyed. The Court analysed the evidence presented regarding the use of the marks in the marketplace and the potential impact on consumers. Ultimately, the Court found that the respondent's trade mark was not deceptively similar to the applicant's registered trade mark, and therefore, no infringement had occurred. The application for an injunction was dismissed.

Orders