Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329 MIGRATION – regulations – whether ultra vires – whether operating when validity of application is considered or when application is considered – condition created by regulation arising after application made

Migration Act 1958 (Cth) ss 46, 48 Migration Regulations 1994 reg 2.12; Sch 2 cl 832.211 Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69 referred to Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 referred to Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 referred to MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v MUONG GI KIM NSD1180 OF 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v MYUNG SOO KIM NSD1181 OF 2004 MOORE, TAMBERLIN & ALLSOP JJ 22 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1180 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND: MUONG GI KIM

RESPONDENT

JUDGES: MOORE, TAMBERLIN & ALLSOP JJ

DATE OF ORDER: 22 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Order 1 of the Court of 23 July 2004 be set aside.

2. The appeal otherwise be dismissed.

3. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1181 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS