Li Tian v Minister for Immigration and Citizenship [2009] FCA 1406

Li Tian v Minister for Immigration and Citizenship [2009] FCA 1406

The Federal Court held that, on the proper construction of Migration Regulations 1994 (Cth) regs 5.19, 856.221, and 856.222, approval of a nominated position is employer-specific; as Revetec Limited, the approved employer, had been deregistered and no longer existed, the appellant could not satisfy the visa criteria through employment with the successor entity (Revetec Holdings Limited) without fresh ministerial approval, and thus the appeal must be dismissed.

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
02 December 2009
Procedural Posture
Appeal / Judgment on Appeal From the Federal Magistrates Court
Outcome
appeal dismissed
Legal Topics
Employer Nomination Scheme, Subclass 856 Visa, Visa Eligibility Criteria, Effect of Business Succession on Employer Nomination, Migration Regulations 1994 Interpretation
Migration Law Employer Nomination Scheme Subclass 856 Visa Visa Eligibility Criteria Effect of Business Succession on Employer Nomination Migration Regulations 1994 Interpretation

Case Brief

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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 / Judgment on Appeal From the Federal Magistrates Court

Legal Issues

  1. 1 Whether the appellant satisfied the criteria in regs 856.221 and 856.222 of the Migration Regulations 1994 (Cth) when the nominating employer ceased to exist and its business was acquired by another company without fresh approval under reg 5.19.
  2. 2 Whether approval under reg 5.19 could be relied upon when the original employer had been deregistered and employment was offered by the successor entity.

Ratio Decidendi

The Federal Court held that, on the proper construction of Migration Regulations 1994 (Cth) regs 5.19, 856.221, and 856.222, approval of a nominated position is employer-specific; as Revetec Limited, the approved employer, had been deregistered and no longer existed, the appellant could not satisfy the visa criteria through employment with the successor entity (Revetec Holdings Limited) without fresh ministerial approval, and thus the appeal must be dismissed.

Court Disposition

appeal dismissed

Orders

  • The appeal be dismissed.
  • The first and fourth appellants pay the first respondent's costs.