Tian v Minister for Immigration and Citizenship [2008] FCA 1334

Tian v Minister for Immigration and Citizenship [2008] FCA 1334

The Tribunal erred in law by misconstruing r 5.19(3)(a) to require more than three years of equivalent experience; three years suffices if equivalent to formal training. The Tribunal's error constitutes jurisdictional error, and the Federal Magistrates Court erred in upholding the Tribunal's construction.

Parties
First Appellant: Li Tian; Second Appellant: Jia Jun Ye; Third Appellant: Jia Xin Ye; Fourth Appellant: Song Tao Ye; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Migration Review Tribunal
Jurisdiction
Australia
Judgment Date
29 August 2008
Procedural Posture
Appeal / Appeal From Federal Magistrates Court to Federal Court
Outcome
Appeal allowed
Legal Topics
Employer Nomination Scheme, Visa Criteria, Jurisdictional Error, Statutory Construction
Migration Employer Nomination Scheme Visa Criteria Jurisdictional Error Statutory Construction

Case Brief

Summary, issues, holding and outcome

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Parties

Li Tian

First Appellant

Jia Jun Ye

Second Appellant

Jia Xin Ye

Third Appellant

Song Tao Ye

Fourth Appellant

Minister for Immigration and Citizenship

First Respondent

Migration Review Tribunal

Second Respondent

Procedural Posture

Appeal / Appeal From Federal Magistrates Court to Federal Court

Legal Issues

  1. 1 Proper construction of 'highly skilled person' in r 5.19(3) of the Migration Regulations 1994 (Cth).
  2. 2 Whether Tribunal misapplied the requirements for 'equivalent experience' under r 5.19(3)(a).
  3. 3 Whether the Tribunal was required to consider if an approved appointment was 'exceptional' under r 5.19(3)(b).

Ratio Decidendi

The Tribunal erred in law by misconstruing r 5.19(3)(a) to require more than three years of equivalent experience; three years suffices if equivalent to formal training. The Tribunal's error constitutes jurisdictional error, and the Federal Magistrates Court erred in upholding the Tribunal's construction.

Court Disposition

Appeal allowed

Orders

  • The appeal be allowed.
  • The orders of the Federal Magistrates Court of 21 April 2008 be set aside.