Chand v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAND & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1374

MIGRATION − Business visa − MRT − whether Tribunal failed to consider information requested by Tribunal − whether Tribunal failed to consider the value of Fiji assets − whether Tribunal applied to correct test for transfer of assets to Australia.

Migration Act 1958, s.359
Migration Regulations 1994 (Cth) Schedule 2 , 457(7A)

Abebe v The Commonwealth [1999] 162 CLR 510
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194
Perera v Minister for Immigration & Multicultural Affairs [2002] FCA 743
Parisi v Minister for Immigration & Multicultural Affairs [2005] FMCA 218

Applicant: SUSHIL CHAND & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

File Number: SYG 1179 of 2006

Judgment of: Phipps FM

Hearing date: 4 August 2006

Date of Last Submission: 4 August 2006

Delivered at: Dandenong

Delivered on: 15 September 2006

REPRESENTATION

Counsel for the Applicant: Mr Troy Silva

Solicitors for the Applicant: Silva Solicitors

Counsel for the Respondent: Ms Pepper

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on the 24 April 2006 be dismissed.

2. The applicant pay the first respondent’s costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

SYG 1179 of 2006

SUSHIL CHAND & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for prerogative writs to set aside and remit a decision of the Migration Review Tribunal dated 10 April 2006.

2. The applicants are husband, wife and two children.  The primary applicant applied for a Temporary Business Entry (Class UC) Visa on 21 June 2004.  The first respondent's delegate’s decision to refuse the grant was made on 23 December 2004.  For convenience, the husband, the primary applicant, is described as the applicant in this judgment

3. The requirements for the visa are set out in part 457 of schedule two of the Migration Regulations 1994 (Cth). In summary, the requirements for the visa are that the applicant has been conducting business in Australia as a principle for at least 15 months, the business is of benefit to Australia, the applicant has a genuine and realistic commitment to the business, a business character test, and that the applicant has net assets of not less than AUD250,000 or a lesser amount that is adequate to conduct business.

4. The Tribunal was satisfied that all the requirements were met except the value of net assets.  The requirement, contained in

   
   

   part 457(7A)(c)(iv), is:

   the applicant has net assets of:

   (A) not less than AUD250,000; or

   (B) a lesser amount that is adequate;

   to conduct the business;

5. The applicant is a national of Fiji.  He was granted a subclass 457 visa in Fiji on 29 June 2000 and entered Australia on that visa on

   
   

   14 October 2000.  The visa was valid until 29…