Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375

FEDERAL COURT OF AUSTRALIA

Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375

MIGRATION – review of decision of Migration Review Tribunal – refusal to grant visa within subclass 805 – error of law – Tribunal failed to review employer nomination as part of review of visa application.

Migration Act 1958 (Cth): s 476(1)(e) Migration Regulations 1994: reg 5.19, Sch 2 subclass 805

Hu v Minister for Immigration and Multicultural Affairs [2001] FCA 66 distinguished ALEXANDRE TVARKOVSKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 452 of 2000 GOLDBERG J 4 APRIL 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY V 452 of 2000

BETWEEN: ALEXANDRE TVARKOVSKI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 4 APRIL 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal on 29 May 2000 be set aside. 2. The matter be remitted to the Migration Review Tribunal differently constituted to be determined according to law. 3. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY V 452 of 2000

BETWEEN: ALEXANDRE TVARKOVSKI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE: 4 APRIL 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicant has sought review of a decision of the Migration Review Tribunal ("the Tribunal") on 29 May 2000 affirming the decision of a delegate of the respondent ("the Minister") refusing to grant the applicant a General (Residence) (Class AS) subclass 805 (skilled visa). The applicant raised one short issue before the Court. The Tribunal concluded that it could not review as part of its process of review of the decision to refuse the visa what it called "the regulation 5.19 issues". Did the Tribunal fall into an error of law in so concluding? The applicant contended that the Tribunal did, within s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant, a citizen of Russia, arrived in Australia with his family on a temporary residence class 414 visa on 14 October 1994 which expired on 19 August 1996. On 6 February 1996, the applicant lodged an application for a General (Residence) (Class AS) subclass 805 (skilled) visa pursuant to the provisions of the Act. The application was supported by an employer nomination under the employer nomination scheme. A delegate of the Minister refused the employer nomination and the visa application on 12 February 1998. The delegate's refusal of the visa application was affirmed by a review officer of the Migration Internal Review Office on 14 April 1998. On 12 May 1998, the applicant lodged an application for review of the delegate's decision with the Immigration Review Tribunal which ceased to exist on 31 May 1999. The application was transferred to the Tribunal pursuant to the Migration Legislation Amendment Act (No 1) 1998 (Cth). On 29 May 2000, the Tribunal affirmed the decision of the delegate to refuse the visa application and found that it did not have jurisdiction to review the refusal of the employer nomination. On 26 June 2000, the applicant applied to the Court for an order of review in respect of the Tribunal's decision pursuant to Pt 8 of the Act.