Liu v Minister for Immigration - [2005] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION

[2005] FMCA 691

MIGRATION – Refugee – Long Stay Temporary Business Class UC Visa – requirements – effect of lack of business sponsor.

Migration Regulations, ss.457.223(1), (4) of Schedule 2

Applicant:

LIU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1854 of 2004

Delivered on:

28 April 2005

Delivered at:

Sydney

Hearing date:

28 April 2005

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. S. Burnett

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent's costs set in the amount of $2500 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1854 of 2004

LIU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This judgment arises from an application filed in this Court by the applicant on 17 June 2004 seeking judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 26 May 2004, affirming the decision of a delegate of the respondent Minister made on 4 September 2003 refusing the grant to the applicant of a long stay temporary business entry class UC visa.
The applicant, Mr. Liu, is a citizen of the People’s Republic of China. He and his wife applied for a temporary business entry (Class UC) visa on 28 July 2003 to the respondent Minister's Department. The proposed period of stay was from 1 August 2003 to 31 July 2007. The application indicated that the applicant was sponsored by an “Australian business, namely Australian Liangwei Enterprises Pty Ltd”.
On 4 September 2003 a delegate of the respondent Minister refused to grant the visa and on 24 September 2003 the applicant applied for a review of that decision with the Tribunal. Paragraphs 1 to 7 of written submissions filed by the respondent's solicitors outline the background to this matter and I adopt those paragraphs for the purposes of this judgment.
“1. The applicant seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 26 May 2004, affirming a decision of a delegate of the Minister made on 4 September 2003, refusing to grant the applicant a long-stay temporary business entry (class UC) visa.
2. On 28 July 2003, the applicant, a Chinese citizen, applied with his wife, Ms. Gennu Zou for temporary business entry (class CU) visas, with Mr. Liu being the primary applicant and Ms. Zou applying as member’s of Mr. Liu’s family unit. The proposed of stay was from 1 August 2003 to 31 July 2007. The applicant indicated that Mr Liu was applying for a visa as “a person sponsored by an Australian business including RHQ or labour agreements) or a person sponsored by a business outside Australia.”
The employer’s name nominated in the application form was “Australian Liangwei Enterprise Pty Ltd” “Liangwei”).
3. On 4 September 2003, a delegate of the Minister refused to grant the applicant a temporary business entry (class UC) visa.
4. On 24 September 2003, the applicant applied to the Tribunal for review of the delegate’s decision.
5. On 14 January 2004, the Tribunal invited the applicant to a hearing.
6. On 20 January 2004, the Tribunal forwarded another letter to the applicant which referred to the letter of 14 January 2004 and contained a statement that:
“At this stage it appears that you do not meet the criteria for the visa you have applied for because the proposed employer has not been approved as a business sponsor, and has not sought a review of that decision. In order to be granted the visa for which you have applied you must be sponsored by the company specified in your primary application, that is Australian Liangwei Pty Ltd. That is a matter you should consider prior to the hearing, and you may wish to make submissions or comments on this point at the hearing or in writing prior to the hearing.”
7. On 10 May 2004, the Tribunal handed down its decision affirming the delegate’s decision. A copy of this decision was sent to the applicant on 10 May 2004.”
The central issue in this matter is that an applicant for a class UC business visa in the circumstances relevant to this application requires sponsorship by a business operating in Australia. I note in the material before me that as the applicant was seeking a stay of longer than three months, the relevant visa subclass was 457 Business Long Stay visa. Regulation 457.223(1) of the Migration Regulations sets out that necessary criteria for the grant of this visa in the circumstances put forward by the applicant, was that he was required to satisfy the Tribunal that he was sponsored by business operating in Australia and that also the proposed employer business is approved as a pre-qualified business sponsor or as a standard business sponsor. The Tribunal recorded in its decision record that no claims have been made in respect of any other grounds relevant to this class of visa and that the material before the Tribunal does not suggest that the visa applicant met any of the other grounds (Court Book 36.4). I note further that the application to the respondent's Department is reproduced at CB 1 to 9. The application is clearly stated as seeking a long stay temporary business visa, and at CB 5 the business name of the proposed sponsor is Australian Liangwei Enterprise Pty Ltd of which Mr. Liu is described at CB 6 as Managing Director of this company.
On the material before me, it is clear that the application for approval as a business sponsor by Australian Liangwei Enterprise Pty Ltd was refused by the respondent's Department in a separate decision, and that this refusal was affirmed by the Tribunal on 30 April 2004. As the visa applicant did not have an approved business sponsor to support his application, the Tribunal found that he did not meet the requirements of either the subclass 456, or relevantly subclass 457 visas as set out in the Migration Regulations. The Tribunal therefore affirmed the decision under review.
In his application filed in this Court on 17 June 2004 the applicant asserts:
“1. The Tribunal was wrong to find that I did not meet the requirements for a Temporary Business Entry Visa.
2. The Tribunal made jurisdiction mistakes when considering my application.
3. There are no evidences to support the officer's decision on my application.
4. A copy of the Tribunal's decision is attached.”
There are no particulars whatsoever provided.
In an amended application filed on 2 December 2004, which appears to be a submission rather than properly stated and particularised grounds, the applicant does not appear to dispute the need for a sponsorship by a business operating in Australia as being a necessary criterion to be satisfied for the grant of subclass 457 visa to him. The applicant who appeared before me today unrepresented, and with the assistance of an interpreter in the Mandarin language, appeared to understand the need for a business sponsorship before a visa could be granted to him.
The amended application, and indeed the applicant's complaints before me today, centred around the separate decision of the Tribunal to affirm the refusal of Australian Liangwei Enterprises Pty Ltd as an approved sponsor. Proceedings in relation to this issue were before this Court on 31 January 2005. Mr. Liu acted on behalf of Australian Liangwei Enterprises Pty Ltd. The company's application for review of the Tribunal's separate decision in this regard was dismissed. Mr. Liu confirmed that the matter relating to the approval of Australian Liangwei Enterprises Pty Ltd as an approved sponsor is currently before the Federal Court. In any event, nothing in the amended application before me today directly challenges the Tribunal decision of 26 May 2004 which affirmed the refusal of visa to Mr. Liu. This is the decision for review before this Court. Mr. Liu’s submissions all go to challenging the separate decision involving the proposed sponsoring company.
Visa subclass 457 has relevantly prescribed criteria in Regulation 457.223(4) of Sch 2 to the Migration Regulations. In this regard I note paragraph 15 of the respondent's written submissions and adopt this paragraph for the purposes of this judgment.
“The prescribed criteria for the grant of the visa, so far as they are relevant to the present application, are those contained in sub-class 457.223(4) of Schedule 2 to the Regulations, which relevantly provides:
“The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposed to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)the employer is:
(i)a pre-qualified business sponsor; or
(ii)a standard business sponsor; and
(c)the applicant is nominated … in relation to the activity by the employer …”
There is no evidence before me today that Australian Liangwei Enterprise Pty Ltd was a pre-qualified sponsor or had met the requirements as a standard business sponsor. In fact, the material before me today is to the contrary. I note that Mr. Liu has not presented any evidence of any other company which was willing and able to sponsor him while the matter was before the respondent's Department and, subsequently and relevantly, before the Tribunal, and as I said earlier the criteria for the grant of a visa set out in subclause 457.223(4) of Sch 2 to the Migration Regulations were clearly not satisfied at the time of the Tribunal's decision.
Further, I cannot see any discretion available to the Tribunal in these circumstances to grant the visa without the requisite sponsorship. There is nothing before me to show that the Tribunal did not properly apply the relevant regulatory requirements. I can see no error in the way the Tribunal performed its task, nor anything to support the applicant's contention that there was no evidence to support the “officer's decision on his application”. The Tribunal clearly considered the claims in the application, noted the relevant requirements, gave the applicant an opportunity to be heard, applied the statutory criteria and found that the applicant was not able to satisfy a necessary regulatory requirement for the visa to be granted. This finding was clearly open to the Tribunal on the material before it.
For these reasons that I can find no error or jurisdictional error in the Tribunal's decision. The application before me is therefore dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 23 May 2005