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

FEDERAL COURT OF AUSTRALIA

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

MIGRATION – Employee Nomination Scheme – subclass 856 visa – definition of "highly skilled person" in r 5.19(3) of the Migration Regulations 1994 (Cth) – meaning of expression "the person has completed, over a period of 3 years, formal training or equivalent experience" found in r 5.19(3)(a) – whether the Migration Review Tribunal was required to consider whether the approved appointment is "exceptional" for the purposes of r 5.19(3)(b)

Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), r 5.19, Item 1114A of Schedule 1, and Clause 856 of Schedule 2 An v Minister for Immigration and Citizenship (2007) 160 FCA 480 TIAN and ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ANOR

NSD 652 OF 2008

EMMETT J

29 AUGUST 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 652 OF 2008

BETWEEN: LI TIAN

First Appellant

JIA JUN YE

Second Appellant

JIA XIN YE

Third Appellant

SONG TAO YE

Fourth Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 29 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders of the Federal Magistrates Court of 21 April 2008 be set aside and, in their place, it be ordered that: (a) The decision of the Migration Review Tribunal be quashed. (b) The matter be remitted to the Migration Review Tribunal for determination according to law. (c) The First Respondent pay the Applicants' costs of the application. 3. The First Respondent pay the Applicants' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA