CUI v Minister for Immigration

[2015] FCCA 636

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 636

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (class UC) visas – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.140GB, 476

Migration Regulations 1994, regs.2.72, 2.73

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

First Applicant: QI CUI

Second Applicant: JIE LIU

Third Applicant: TIANYU LIU

Fourth Applicant: TIANCHENG LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 432 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

Solicitors for the Applicant: Ms G. Anang
Christopher Levingston & Associates

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The proceeding before this Court, commenced by way of application on 23 February 2015, is summarily dismissed.

2. The applicants pay the costs of the first respondent fixed in the amount of $1,367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 432 of 2015

QI CUI

First Applicant

JIE LIU

Second Applicant

TIANYU LIU

Third Applicant

TIANCHENG LIU

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicants were seeking a Constitutional writ with respect to the decision of the Tribunal dated 27 January 2015 not to grant the applicants Temporary Business Entry (class UC) visas. 

2. The application identifies on its face the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.  The Court identified that this matter appeared to have no arguable grounds.  The solicitor for the applicant frankly conceded the ground identified in the application was unarguable given the failure of the application made in other proceedings.  That concession was properly made.

3. I take into account, in considering the exercise of the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60]..

4. The Tribunal noted that the applicants applied for the visa on 13 January 2014:

   3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

   4. The delegate refused to grant the visas on 27 May 2014 on the basis that cl.457.223(4)(a) was not met by the first named applicant (the applicant).

   …

   6. The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.  In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

5. The Tribunal noted that the issue in the present case is whether the primary visa applicant met the requirements of cl.457.223(4)(a).  The Tribunal noted that cl.457.223(4)(a) required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.   The Tribunal found that on 9 March the Department refused the nomination in respect of the applicant by the proposed sponsor. 

6. On 27 January 2015, the Tribunal affirmed the decision of the delegation application.  The Tribunal said as follows:

   14. There is no evidence before the Tribunal that the applicant is the subject of an approved nomination by a standard business sponsor.  For these reasons the requirements of cl.457.223(4)(a) are not met.

   15. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

   16. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

7. The ground was identified in the application ….. jurisdictional error is as follows:

   The Tribunal fell into jurisdictional error in the case of the SBS/Nom the subject of proceedings in this Court (SYG427/2015) and refused the applicants a grant of a visa on the basis of there being no approved nomination in accordance with criterion 457.223(4)(a) of the Migration regulations.

8. There was no substance in the ground identified.  It fails to identify any jurisdictional error.  The pleadings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 March 2015