Huang v Minister for Immigration and Multicultural Affairs
[2006] FCA 1057
•10 AUGUST 2006
FEDERAL COURT OF AUSTRALIA
Huang v Minister for Immigration & Multicultural Affairs [2006] FCA 1057
JUN YI HUANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 949 OF 2006TRACEY J
10 AUGUST 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 949 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JUN YI HUANG
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
10 AUGUST 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 949 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
JUN YI HUANG
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
TRACEY J
DATE:
10 AUGUST 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate of 28 April 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 3 August 2005: see [2006] FMCA 654. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of a Temporary Business entry (class UC) visa to the appellant, more particular the appellant specifically sought a visa in the nature of Subclass 457 (Business (Long Stay).
The appellant is a citizen of the People’s Republic of China. The basis on which the appellant applied for the visa was that he was sponsored by an Australian business. In order to satisfy criteria for the grant of the visa, subcl 457.223(4) (b) in Sch 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) required the proposed employer to be either a pre-qualified business sponsor or a standard business sponsor with an approval covering the proposed employment.
The Tribunal found that the appellant’s proposed employer had not been approved as a business sponsor (by both the delegate and the Tribunal in matter N05/00473). Consequently the appellant did not meet criteria for a Subclass 456 visa or Subclass 457 visa, and it, therefore, affirmed the delegate’s decision not to grant a Temporary Business Entry (Class UC) visa.
Before the Federal Magistrate, the appellant claimed that the Tribunal’s decision on the employer’s sponsorship appeal was vitiated by jurisdictional error. An adjournment application had been refused. The appellant contended that his application was not properly considered because this alleged error had prevented him from establishing that he had an approved sponsor. The appellant also claimed that the Tribunal failed to consider the appellant’s claims and, because the Tribunal insisted that the appeals of the sponsor and the appellant should be heard together, the appellant’s application was prejudiced. Although the appellant made references to the sponsorship application, his application before the Federal Magistrate did not include the proposed sponsor as a party and the sponsor did not seek judicial review of the Tribunal’s decision on his appeal.
The Federal Magistrate found that the Tribunal’s decision was plainly correct on the evidence which was before it, and that the appellant had not identified any procedural or substantive error affecting the decision. There was no jurisdictional error. His Honour then considered that, even if there were some error in the decision, relief would have been refused on grounds of futility because the sponsor had not sought an order that the Tribunal’s decision be set aside or sought to have the Tribunal rehear his application. Thus the appellant could still not establish the requisite sponsorship approval to satisfy subcl 457.223(4) (b) of the Regulations. The Federal Magistrate dismissed the application.
The notice of appeal raised the following grounds:
“I was not given an opportunity to explain my case, my sponsor was not given an opportunity to explain his application for sponsorship application. The sponsorship application was considered according to Migration Act 1958. The Tribunal fell into jurisdictional errors when considering my application as well as the sponsorship application. I lodged my application to be reviewed at Federal Magistrates court, it was not considered with full information provided. My application was dismissed on the hearing date.”
At the hearing before me this morning the appellant appeared in person. He had the assistance of an interpreter. He told me that he understood the Federal Magistrate’s reasons and the submissions made to the court on behalf of the respondent Minister. He asked some questions about how his employer might achieve recognition as a sponsor but he did not elaborate on any of his grounds of appeal.
In my opinion the decision of the Federal Magistrate was plainly correct for the reasons which he gave. No error in the Federal Magistrate’s decision has been demonstrated. The appeal should be dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 14 August 2006
Appellant: Appellant in person Counsel for the Respondent: J. A. Smith Solicitor for the Respondent: Phillips Fox Date of Hearing: 10 August 2006 Date of Judgment: 10 August 2006
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