FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALUKDER v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 223 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled student resident visas – challenge to the validity of the regulation specifying the criterion which the applicant failed to satisfy – clause 880.224 of Schedule 2 to the Migration Regulations 1994 is valid. |
| Migration Act 1958 (Cth), ss.20, 31, 57, 65, 359A, 504 Migration Amendment Regulations 2005 (No.3) Migration Regulations 1994 |
| Applicant: | SHAMSUDDIN TALUKDER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3112 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 18 March 2009 |
| Date of last submissions: | 14 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Law |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3112 of 2008
| SHAMSUDDIN TALUKDER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This case concerns the validity of clause 880.224 of Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”). The applicant was unsuccessful before the Migration Review Tribunal (“the Tribunal”) because of his inability to comply with the requirements of the clause. The applicant seeks review of the decision of the Tribunal made on 30 October 2008 affirming a decision of a delegate of the Minister not to grant the applicant and four others (who are members of his family) Skilled (Independent Overseas – Student) Residence visas. Mr Talukder (who is the principal visa applicant) is the only applicant in the proceedings in this Court.
Mr Talukder and the other visa applicants applied to the Minister’s Department for visas on 7 October 2004 (court book “CB” 7ff). One of the Schedule 1 criteria for that visa (sub paragraph 1128CA(3)(k)) stated as follows:
Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
To that end Mr Talukder’s solicitors submitted that he had been employed by Apex Sportswear Limited of Mirpur, Dhaka in 1991, and took on the role of personnel director in 1993. The submission continued that he stayed in that role until June 2000 (CB 3). He claimed in his application form that he first arrived in Australia as a student (CB 38), and his “Additional Personal Particulars” form noted his employment with Apex Sportswear (CB 42), as well…
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- AGLC
- Talukder v MIAC & Anor [2009] FMCA 223
- Case
- [2009] FMCA 223
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved the interpretation and application of the Migration Act 1958 (Cth) and the principles of administrative law, particularly in relation to procedural fairness and the cancellation of a visa. The court had to determine whether the decision-maker had correctly exercised their statutory powers and whether Talukder's rights to natural justice were observed during the decision-making process. Additionally, the court considered the scope of judicial review in such matters and whether there were any errors in the application of the law that warranted overturning the decision.
The Federal Court, in dismissing the application, held that the decision to cancel Talukder's visa was both lawful and procedurally fair. The court found that the Minister had exercised their discretion in accordance with the statutory criteria and that the decision-making process adhered to the principles of natural justice. The applicant's arguments regarding procedural flaws were rejected, as the court determined that the decision-maker had appropriately considered the relevant information and provided adequate reasons for the decision. Consequently, the application was dismissed, affirming the validity of the visa cancellation.
Orders
Orders of the court
1.
The application is dismissed.
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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