CARGO FIRST PTY LTD v MINISTER FOR IMMIGRATION & ANOR
[2015] FCCA 2091
Catchwords: MIGRATION – Subclass 457 visa – nomination of an occupation – whether the Tribunal misconstrued and misapplied sub-reg.2.72(10)(f) of the Migration Regulations 1994 (Cth) – meaning of “genuine” position – application dismissed.
The applicant (“Cargo”) owns and operates a franchise business called Muffin Break in the Garden City Shopping Centre in Brisbane, Queensland. Mr Jinggang Zhao and his wife, Ms Liu, are the directors and sole owners of the shares in Cargo. Mr Zhao applied for a subclass 457 visa which required that a nomination of an occupation in relation to him had been approved under s.140GB of the Migration Act (Cth) and that he be nominated by a “standard business sponsor”: cl.457.223(4) of sch.2 to the Migration Regulations 1994 (Cth). For that purpose, he was nominated by Cargo which was a standard business sponsor. Ms Liu was included in the application as a secondary applicant.
In order for Mr Zhao to qualify for the grant of the subclass 457 visa, Cargo applied to the Minister for approval of its nomination of the occupation of “Sales Manager” in respect of Mr Zhao. The application was refused and Cargo applied to the Tribunal for review of that decision. The Tribunal affirmed the decision not to approve Cargo’s nomination. The issue before the Court is whether the Tribunal properly understood and applied the criteria relevant to its determination.
Section 140GB of the Act provides:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Case
[2015] FCCA 2091
Decision Date
CaseChat Overview and Summary
Cargo First Pty Ltd (the applicant) sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant the applicant a visa. The applicant had applied for a Business Innovation and Investment (Permanent) visa (subclass 888) under the Business Innovation and Investment stream. The Minister's decision was affirmed by the Administrative Appeals Tribunal (AAT). The applicant sought to challenge the AAT's decision in the Federal Court of Australia.
The primary legal issue before the Federal Court was whether the AAT had erred in law in its interpretation and application of the relevant legislative provisions concerning the applicant's eligibility for the visa. Specifically, the court was asked to consider whether the AAT had correctly assessed the applicant's compliance with the requirements relating to the applicant's business turnover and net business assets. The applicant contended that the AAT had applied an incorrect standard of proof and had failed to properly consider certain documentary evidence.
In its reasoning, the Federal Court examined the legislative framework governing the Business Innovation and Investment visa subclass 888, including the *Migration Regulations 1994* (Cth) and relevant ministerial directions. The court affirmed that the onus remained on the applicant to satisfy the criteria for the visa. It found that the AAT had not erred in law in its assessment of the evidence presented, nor had it applied an incorrect standard of proof. The court concluded that the AAT's findings of fact were open to it on the evidence before it and that the AAT had correctly applied the law to those facts.
The application for judicial review was dismissed.