Liu v Minister for Immigration
[2004] FMCA 64
•10 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIU v MINISTER FOR IMMIGRATION | [2004] FMCA 64 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of Business (Long Stay) visa – no reviewable error. PRACTICE AND PROCEDURE – Summary dismissal of review application – no reasonable cause of action. |
Federal Magistrate Court Rules 2001, R 13.10
| Applicant: | XIN TING LIU |
| Respondent: | MINISTER FOR IMMIGRATION & MUTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 658 of 2003 |
| Delivered on: | 10 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 10 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | There was no appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Ms M Northrop |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application for an order for review is dismissed.
I order that the applicant is to pay the respondent's costs of these proceedings which I set at $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 658 of 2003
| XIN TING LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The matter before the court today is a notice of motion brought by the respondent seeking that the applicant's application for an order for review of a decision of the Migration Review Tribunal be dismissed.
The original applicant applied for a business long stay subclass 457 visa on 25 September 2002. On 22 November 2002 a delegate of the respondent refused the application. The applicant then sought a review of that decision by the Migration Review Tribunal. On 23 May 2003 the Migration Review Tribunal affirmed the decision of the delegate to refuse the application. On 20 June 2003 the applicant applied for an order to review the decision of the tribunal. The applicant made an application to this court.
The criteria for temporary business entry visas are specified in schedule 2 of the regulations. Matters which must be satisfied in visas such as this are set out in criterion 457.2231 of schedule 2 which reads:
The applicant meets the requirements of subclause (2), (3), (4), (5), (7), (7)(a), (8) or (9).
The applicant only made a claim in respect of subclause (4) which relates to business sponsorship.
The English Irish Pub Company lodged an application to be a business sponsor on 25 September 2002. The delegate of the respondent refused to approve this application for sponsorship after finding that the English Irish Pub Company did not meet the criteria for approval as a standard business sponsor. On 23 May 2003 the tribunal affirmed that decision.
It is put to me by Ms Northrop for the respondent that as it is not approved as a business sponsor English Irish Pub Company cannot therefore nominate an activity in which the applicant can be employed. The applicant, accordingly, does not therefore meet the criteria for subclause 457.223(4)(a). As the applicant's proposed employer English Irish Pub Company is not approved as a business sponsor the applicant therefore does not meet those criteria. As the applicant does not meet those criteria she does not meet the criteria for subclause (1). She does not meet the criteria for the grant of a subclass 457 Business (Long Stay) visa.
The notice of motion was filed on 19 January 2004 and it was listed for hearing at 2.15 pm today. At that stage the applicant was represented by Mr Joseph Belbruno. The applicant has not appeared. In the affidavit of service of Ms Merinda Northrop dated 9 February 2004 Ms Northrop deposes that she arranged to send him a letter on
21 January 2004 enclosing the notice of motion and her affidavit in support. Those documents were sent by ordinary mail to the applicant's address for service. She also believed those documents were sent to Mr Belbruno. At 3.30 pm on 9 February the deponent to the affidavit said that she spoke to Mr Belbruno who indicated that he would not be appearing at the hearing today.
The matter came on for hearing at 2.15 pm today and was called shortly after that time. There was no appearance by or on behalf of the applicant. I stood the matter down in the list and called the matter again at 2.50 pm. Again there is no appearance by or on behalf of the applicant. No message has been received from the applicant as to her inability to attend due to illness or injury or for any other reason.
I am satisfied that the applicant has been given sufficient time to appear to contest these proceedings should she choose to do so. As she has not appeared I am of the view that I should proceed to dismiss her application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001, the particular reason being that no reasonable cause of action is disclosed in relation to proceeding or obtaining relief.
Quite clearly the applicant from the application for the reasons I earlier mentioned does not meet the criteria and there is therefore no reasonable cause for action.
The Application will be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 11 February 2004
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