Bola v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOLA v MINISTER FOR IMMIGRATION [2006] FMCA 424

MIGRATION – Application to review decision of MRT – where jurisdictional error is accepted but there is an independent ground upon which the delegate’s decision is affirmed.

Migration Act 1958, s.359A,
Federal Magistrates Court Rules 2001

SAAP v Minister for Immigration [2005] 215 ALR 162
SZEEU v Minister for Immigration [2006] FCAFC 2

Applicant: JASWINDER SINGH BOLA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG257 of 2004

Judgment of: Raphael FM

Hearing date: 22 March 2006

Date of Last Submission: 22 March 2006

Delivered at: Sydney

Delivered on: 22 March 2006

REPRESENTATION

Solicitors for the Applicant: Newman & Associates

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG257 of 2004

JASWINDER SINGH BOLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is a national of India who entered Australia on a temporary visitor's visa.  During the currency of that visa on 19 September 2001 he applied for a temporary business entry (class UC) visa.  Whilst that application was being considered Mr Bola was granted a bridging visa A.  That bridging visa was granted on condition 8101 that the holder must not engage in work in Australia.

2. The business entry visa for which the applicant was applying was either a subclass 456 (short stay) or subclass 457 (long stay).  Both of these visas required the sponsorship of a business operating in Australia.  That sponsorship can be obtained by a pre-qualified business sponsor or a standard business sponsor where the nominated activity is the subject of an approved business nomination by the proposed employer (subclass 457.223(4)) of schedule 2 to the regulations).

3. The applicant proposed to work as a cook in the business known as Palace of North India, an Indian restaurant in Marion Street, Leichhardt.  The business had obtained the appropriate sponsorship approvals in May 2002 but the applicant's visa application had not yet been determined because he was awaiting what is known as a TRA assessment.

4. Before the TRA assessment came in and before a decision was made upon the application for the subclass 457 visa the applicant was found in the premises of the proposed employer.  His Class A bridging visa was cancelled for breach of condition 8101 and he was placed in immigration detention.  It would appear that Mr Bola did not take steps to seek review of cancellation of his bridging visa A.  Instead he applied for and obtained a bridging visa E (see [CB 37 and 48]).

5. He then allowed his application for the class UC visa to proceed and that application was decided by a delegate on 24 October 2002.  The delegate declined to grant the class…