Australian Liangwei Enterprises Pty Ltd; v Minister for Immigration
[2005] FMCA 289
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTRALIAN LIANGWEI ENTERPRISES PTY LTD v MINISTER FOR IMMIGRATION | [2005] FMCA 289 |
| MIGRATION – Review of MRT decision rejecting application for business sponsor – whether applicant was given opportunity to explain case. |
Migration Act 1958
| Applicant: | AUSTRALIAN LIANGWEI ENTERPRISES PTY LTD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1410 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2005 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant to pay the respondent’s costs set in the amount of $3000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1410 of 2004
| AUSTRALIAN LIANGWEI ENTERPRISES PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed in this Court on 13 May 2004 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 30 April 2004 to affirm the decision of the delegate of the respondent Minister made on 4 September 2003, to reject the application by Australian Liangwei Enterprises Pty Ltd (the applicant) for approval as a business sponsor.
The applicant is a company incorporated in New South Wales. Rule 9.04
of the Federal Magistrates Court Rules requires a corporation to not start or carry on proceedings otherwise than by a lawyer, except with leave of the Court. At the hearing before me today the Company was not legally represented. Mr Xueren Liu, a principal of the applicant company appeared on behalf of the company. Mr. Liu is a Chinese national who was assisted by an interpreter in the Mandarin language. When Rule 9.04 was explained to him Mr. Liu sought an adjournment on the basis that he said, it was “in a sense unfair” to go ahead without a legal representative. I refused the adjournment. The applicant [company] had ample opportunity to arrange legal representation. Mr. Liu is the principal of the applicant company (he is also a visa applicant, whose application appears to be dependent on the applicant company being recognised as a business sponsor). On behalf of the company he filed the application to this Court on 13 May 2004, attended the first Court date in this matter, on 20 August 2004, and signed Short Minutes of Order that subsequently became orders of the Court. Further, on
27 October 2004 he filed in the Court a document headed “Amended Application” on behalf of the company. It was open to him to have sought a legal representative essentially from the time that the application was made to the Court if not before, and he had over 3 months to make arrangements from the first Court date when the final hearing date was set down.
Another relevant matter is whether there is any real utility in granting an adjournment. There was nothing before me to show that the applicant would do now what he had not done essentially for the last seven or eight months, and he was not able say anything to me now to show that there was any real purpose in granting the adjournment.
Subsequently, Mr. Liu sought leave to represent the applicant company and said he understood that he would have to make arguments on behalf of the applicant company.
On 25 July 2003 the applicant applied to the respondent’s Department for approval as a standard business sponsor. When this was refused (see Court Book 89-95) the applicant applied for review of that decision (see CB 100-105). Some further background and matters relevant to the Tribunal’s decision are set out at paragraphs 4 to 7 of the respondent’s written submissions filed on 27 January 2005. I adopt these paragraphs for the purposes of this judgment:
“4. On 17 February 2004 the Tribunal wrote to Australian Liangwei pursuant to ss 359 and 259A of the Migration Act 1958 (“the Act”). No response was received to this letter. Also on
17 February 2004, the Tribunal invited Australian Liangwei to attend a hearing to give evidence and present arguments.
Mr. Liu, a director of Australian Liangwei, attended a hearing on
18 March 2004.”
5. On 30 April 2004, the Tribunal gave its decision, which was sent to Australian Liangwei under cover of a letter of the same date. The Tribunal affirmed the decision of the delegate.
6. The Tribunal made a number of findings adverse to Australian Liangwei. First, it found that Australian Liangwei was not lawfully operating a business in Australia, and therefore Reg 1.20D(2)(a) was not satisfied. Second, the Tribunal was not satisfied that Australian Liangwei would introduce, utilise or create in Australia new or improved technology or business skills. Third, the Tribunal was not satisfied that Australian Liangwei had a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and permanent residents, and therefore Reg 1.20D(2)(c) was not satisfied. Fourth, the Tribunal found that without evidence of the current financial circumstances of Australian Liangwei, the Tribunal could not be satisfied concerning its ability to comply with the undertakings required by Reg 1.20D(2)(f), and therefore, that regulation was not satisfied.
7. The Tribunal therefore concluded that the requirements of
Reg 1.20D were not satisfied, and it was therefore obliged to affirm the decision under review.”
The application for judicial review filed on 13 May 2004 asserts two grounds:
“1. I was not given a proper opportunity to explain my case.
2. The Tribunal was wrong to find that Australian Liangwei Enterprises P/L could not meet the criterias for a Standard Business Sponsorship.”
The applicant has also filed and served on 27 October 2004, an additional document headed “Amended Application”. While it is unclear if this is intended to supersede the original application, the respondent in written submissions has accepted this document as raising additional grounds. These additional grounds are:
3. The delay in considering the “current” application, has created problems out of the applicant’s control.
4. There is contradiction between the current decision and a previous decision of the Tribunal.”
No further material has been submitted in support of the applicant’s claims.
In relation to each of these grounds:
5.1Not given proper opportunity to explain the case.
It is of course well established that the Tribunal must provide a real opportunity for applicants to explain the case and to know the case against them. In relation to the latter, there is some doubt about the circumstances in which the applicant or its nominated principal, Mr Liu, received the letter from the respondent’s delegate refusing the application [see CB 99]. However, there must have been knowledge of the delegate’s refusal of the business sponsorship application at some time [soon after the date of the decision] because an application for review was subsequently made. I also note that in the application for review, and in particular [at CB 103] the applicant, through Mr. Liu, is able to provide details of the delegate’s decision, the date on which it is made and the fact that a letter was posted in relation to the decision. There is no evidence before me however to show the applicant attached a copy of the letter and /or the decision record as directed in the application for review. In any event, Mr Liu before me today did not raise the point that he did not receive the letter.
The delegate’s decision record [CB 90-96] makes it clear that the applicant needed to satisfy the delegate, and thereby put the applicant on notice that subsequently it also needed to satisfy the Tribunal, as to the requirements of Migration Regulation 1.20 D.
5.2On 17 February 2004 the Tribunal wrote to the applicant pursuant to section 359A of the Migration Act and invited the applicant to comment. It made reference to the section and it specifically invited comment on a summary of the criteria that needed to be satisfied [see CB 108.8 to 109.2]. These were all matters relevant to the Tribunal’s ultimate decision. The dot points [at CB 108.9 to 109.2] go directly to the issues identified by the Tribunal subsequently in its findings and reasons: [see CB 125-129]
-Reg 1.20 D (2)(a)
-Reg 1.20 D (2)(c)
-Reg 1.20 D (2)(f)
The Tribunal also, in the same letter, sought additional information pursuant to section 359(2) of that Act and provided a checklist [see CB 111-112] for that purpose. There is nothing before me today to show that the applicant responded to this letter. The Tribunal was entitled in these circumstances to proceed pursuant to section 359C of the Act without taking any further action to obtain comments or information. But, in any event, the Tribunal did do more. It invited Mr. Liu as the applicant’s nominee to attend a hearing, which he did on 18 March 2004. It is clear from a plain reading of the Tribunal’s decision record that all the relevant issues on which it relied in reaching the decision adverse to the applicant were discussed with Mr. Liu.
5.3The Tribunal record does not record whether Mr. Liu was assisted by an interpreter in the Mandarin language when it records at CB 124.9 that he gave oral evidence. But no complaint in this regard has been raised by Mr Liu, nor has there been any complaint about the standard of interpretation, nor indeed about the conduct of the hearing generally.
5.4It is clear in all the circumstances that this ground must be rejected as the applicant [through Mr. Liu] was given a reasonable and proper opportunity to explain the case. It can be understood that the applicant’s representative feels aggrieved by the Tribunal’s decision in that the Tribunal did not make a positive finding, particularly in light of the matter raised by Mr. Liu in the third ground of review, but this does not amount to a failure to give a proper opportunity to explain his case.
5.5I note that the Tribunal records that the applicant’s representative stated at the hearing before it that he “did not have time to meet the criteria. If he had more he could do better.” [see CB 124.9] Mr Liu has said nothing at the hearing today to contradict this. In these circumstances it is difficult to see what the applicant complains of in the second ground of review. [That the Tribunal was wrong to find the company could not meet the criteria].
It could be that Mr. Liu does not understand the regulatory nature attending applications of this type. The issue, as the respondent’s counsel Mr. Potts correctly points out, is not if the company “could” or “could not” meet the criteria for standard business sponsorship. For Mr. Liu’s benefit in particular, the issue for the Tribunal is whether it is satisfied that the company meets the criteria prescribed in Regulation 1.20D. The language of the regulation is directive: “The Minister must”, “the Minister is satisfied” and so on. It does not allow for: “I could meet the criteria if”, or “but for”. The Tribunal found on the evidence before it that it was not satisfied that Australian Liangwei Pty Ltd met certain of the prescribed criteria. The conclusions reached by the Tribunal were open to it on the evidence before it. A situation which Mr Liu himself seems to support given his reported comments to the Tribunal.
5.6The third ground relates to what the applicant’s representative claims to be delays in the making of prior decisions, perhaps decisions of delegates in the respondent’s Department. I have no evidence before me as to what the applicant or Mr. Liu may be referring to here. But in any event as the respondent’s counsel submits such matters are not relevant to the Tribunal’s review in this case. The Tribunal in looking at the application for approval as a business sponsor needs to do so afresh. In these circumstances it needed to be satisfied as to the relevant matters in Regulation 1.20D. It was not satisfied as to a number of those matters. Previous Tribunal decisions or delays by the respondent’s delegates (in relation to both of which no evidence has been put before me) may be perhaps rationalisations in a historical sense by the applicant’s representative as to why the applicant was not able to satisfy the criteria, but do not go to establishing whether the criteria were met at the relevant time in respect of the Tribunal’s decision which is the subject of this review.
5.7The fourth ground alleges inconsistency with prior Tribunal decisions in relation to training issues within the applicant company. Nothing beyond mere assertion has been put before me. But again this is similar to the third ground in that such prior decisions are not relevant to what this Tribunal does in relation to what is before it. Further, I also accept the respondent’s submission that even if the Tribunal’s findings in relation to past and future training commitments were wrong, the Tribunal’s findings that the applicant company did not satisfy the criteria set out in Regulation 1.20D (2)(a) and (f) were independent and free standing findings which were open to this Tribunal to make on the material before it, and each on its own was sufficient to refuse the application.
There is nothing in what Mr. Liu, as the applicant company’s principal and representative, has put before me, nor can I see anything in all the circumstances of this case, to establish any error that the applicant would need to establish to succeed. The Tribunal’s decision was based on findings of fact that were matters for the Tribunal. The Tribunal correctly identified that it needed to be satisfied as to the matters set out in Regulation 1.20D and there is nothing before me to show that it misconstrued or misunderstood the regulation or that it misapplied it to the facts of this case. Its findings were open to it and it gave reasons. For these reasons this application is dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 14 March 2005
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