Hu v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1030

MIGRATION – Review of decision of MRT – where the applicant sought a temporary business entry visa and was declined – where a concurrent application for approval as a standard business sponsor was declined and whether this caused the Tribunal to fall into jurisdictional error – whether the applicant had an “accrued right” for any decision refusing the sponsorship allocation to be reviewed by rhe Tribunal as part of his own application – whether a legitimate expectation creates a duty to grant a right.

Migration Act 1958
Migration Regulations 1994
Migration Amendment Regulations (No 4) 1999 (SR 68 of 1999), Regulation 4.02(4)(a)
Acts Interpretation Act 1901, s.48(2)(repealed), s.50(repealed)

Handa v The Minister for Immigration [2001] FCA 1830
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NAAV v Minister for Immigration [2002] FCAFC 228

Applicant: JOO SUNG HU & ORS

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

File Number: SYG 1966 of 2003

Judgment of: Raphael FM

Hearing date: 1 July 2005

Date of Last Submission: 5 July 2005

Delivered at: Sydney

Delivered on: 28 July 2005

REPRESENTATION

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs assessed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1966 of 2005

JOO SUNG HU & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULUTRAL & INDIGENOUS AFFAIRS & MRT

Respondent

REASONS FOR JUDGMENT

1. This application seeks judicial review of a decision of the Migration Review Tribunal (the “MRT”) made on the 23 July 2003. The applicant and his family had sought a temporary business entry (Class UC) subclass 457 business (long stay) visa. He had arrived in Australia in 1993 and was granted a series of visas prior to 1997. On 11 March 1997 he was granted a subclass 457 visa which expired on 11 March 1998. On that day he applied for a further 457 visa. The applicant made his application based upon sponsorship by a business operating in Australia. The relevant business was Korean Television Network (“KTN”) of which the applicant was going to be employed as operating director. At the same time as the applicant lodged his visa application KTN lodged an application for approval as a business sponsor.

2. Under the relevant regulation 1.20D the decision as to whether or not to approve an application for approval as a standard business sponsor was to be made by the minister. In pursuit of that decision documentation was required from KTN which was provided in 1998. On the 18 June 2001 the sponsorship application was declined. At the same time the visa application for the applicant was also declined. The decision was sent to the wrong address and…