Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Martinez v Minister for Immigration and Citizenship [2009] FCA 781
MIGRATION – Judicial review – new grounds of appeal – principles governing leave – privative clause – jurisdictional error – failure to make a finding in relation to a jurisdictional requirement Migration Act 1958 (Cth): ss 48, 51A, 57(3)(b), 338, 474 Migration Regulations1994: cl 136.213 of Sch 2
O'Brien v Komesaroff (1982) 150 CLR 310, followed Coulton v Holcombe (1986) 162 CLR 1, considered Vishnumolakala v Minister for Immigration and Indigenous Affairs [2007] FCA 248, followed MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635, followed Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, cited Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, followed Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476, followed Water Board v Moustakas (1988) 180 CLR 491, followed Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, followed FERDINAND MARTINEZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP
VID 1004 of 2008
GOLDBERG J
23 JULY 2009
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
general division VID 1004 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: FERDINAND MARTINEZ
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE: GOLDBERG J
DATE OF ORDER: 23 JULY 2009
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be allowed. 2. The order of the Federal Magistrates Court made on 14 November 2008 be set aside. 3. In lieu of the order of the Federal Magistrates Court made on 14 November 2008 it be ordered that a writ of certiorari be issued, directed to the respondent, removing into this Court the decision of the respondent's delegate made on 11 April 2008 refusing to grant a Skilled‑Independent (Migrant) (Class BN) Visa to the appellant and the secondary applicants included in the appellant's application for the visa for the purpose of quashing that decision. 4. The said decision of the delegate of the respondent be quashed. 5. A writ of mandamus be issued, directed to the respondent requiring him to hear and determine the appellant's application for a Skilled‑Independent Visa according to law. 6. The respondent pay the appellant's costs of the proceeding before the Federal Magistrates Court and the costs of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
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