Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655

FEDERAL COURT OF AUSTRALIA Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655

MIGRATION - Appeal from Federal Magistrates Court decision dismissing application for judicial review of Migration Review Tribunal (MRT) decision - refusal of Temporary Business (Class UC) Subclass 457 visa where appellant not in possession of substantive visa when visa application lodged - whether appellant not in possession of substantive visa for 'factors beyond his control' - whether MRT committed jurisdictional error by mechanically applying Migration Series Instruction 374 - appeal allowed Migration Act 1958 (Cth) s 5, 359A Migration Regulations 1994 Schedule 3, criterion 3004 Migration Series Instructions 374 Susaki v Minister for Immigration & Multicultural Affairs [1999] FCA 196 cited PIN LIANG SU & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 357 OF 2005 HELY J 24 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 357 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PIN LIANG SU

XIN QUIONG SU

APPELLANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 24 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be upheld. 2. The orders made by Lloyd-Jones FM on 24 February 2005 be set aside. 3. The decision made by the MRT on 21 July 2004 be set aside. 4. The matter be remitted to the MRT for determination according to law. 5. The Minister pay the appellant's costs of the proceedings in the Federal Magistrates Court, and of the appeal to this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.