Liu v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 748
•11 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Liu v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 748Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 31
Migration Regulations 1994 (Cth) sch 2 cl 457.223(4)Happy Spring Australia Pty Ltd [2003] MRTA 7947 cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited
Patwe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 558 citedXIAO FEI LIU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 473 of 2004SACKVILLE J
SYDNEY
11 JUNE 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 473 OF 2004
BETWEEN:
XIAO FEI LIU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
SACKVILLE J
DATE OF ORDER:
11 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s 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
N 473 OF 2004
BETWEEN:
XIAO FEI LIU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J
DATE:
11 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Migration Review Tribunal (‘MRT’) made on 12 March 2004. The MRT affirmed a decision of the delegate of the respondent (‘Minister’) refusing the applicant a Temporary Business Entry (Class UC) visa. The only ground specified in the application is that the applicant’s employer, Happy Spring Australia Pty Ltd (‘Happy Spring’) should be approved as a business sponsor.
The applicant is a citizen of the People’s Republic of China. On 14 October 2002, she applied, together with her husband and child, for a temporary Business Entry (Class UC) visa. On 2 November 2002, the delegate refused to grant the visas.
The applicant, her husband and child sought review before the MRT. The MRT noted that Class UC contained two subclasses, namely Subclass 456 (Business (short stay)) and Subclass 457 (Business (long stay)): see Migration Regulations 1994 (Cth) (Migration Regulations), Sch 1, Pt 2, cl 1223A(4). Subclass 456 was not relevant, since the visa applicants were seeking visas for longer than three months.
At the relevant time, Subclass 457 visas could be obtained on a number of grounds. The ground on which the visa applications were made was sponsorship by a business operating in Australia. No claim was made that the visa applicant satisfied any of the other grounds upon which Subclass 457 visas could be granted. The MRT found that the material before it did not suggest that the visa applicants could meet any of the other grounds.
The MRT pointed out that a criterion must be satisfied for the grant of a Subclass 457 visa on the basis of sponsorship by a business operating in Australia is that the proposed employer is approved as a ‘pre qualified business sponsor’ or as a ‘standard business sponsor’. The visa applicants had relied on an application for approval as a business sponsor made by Happy Spring Australia Pty Ltd (‘Happy Spring’). However, that application had been refused by a delegate and the decision had been affirmed on review by the MRT on 24 November 2003: see Happy Spring Australia Pty Ltd [2003] MRTA 7947.
The MRT recorded that it had sent the visa applicants an invitation on 27 November 2003 to comment on the fact that Happy Spring had failed to gain approval as a standard business sponsor. The letter pointed out that by reason of the MRT’s decision in relation to Happy Spring, the MRT was unable to find that the applicant satisfied the requirements of cl 457.223(4)(a) of Sch 2 to the Migration Regulations. In response to that invitation, the applicant sent a letter stating her view that Happy Spring was a qualified business sponsor and had made ‘good progress [in] a short time’. However, despite the applicant apparently being represented by a migration agent, no challenge was made to the MRT’s decision regarding Happy Spring’s application.
The MRT held a hearing on 19 February 2004 on the challenge to the delegate’s refusal to grant the applicant a visa, at which the applicant gave evidence, assisted by an interpreter. According to the MRT, she confirmed that she did not have a current approved business sponsor or current sponsorship application. The applicant claimed that she did not know she could change sponsor, notwithstanding that she had engaged a registered migration agent in the past. She also stated that she wanted only a temporary visa and was not looking for permanent residency.
The MRT found that the visa applicant’s proposed employer had not been approved as a business sponsor as required by cl 457.223 of the Migration Regulations. Since the visa applicants did not meet the criteria for the grant of a Subclass 457 visa, the MRT affirmed the delegate’s decision.
LEGISLATION
Section 31(1) of the Migration Act states that ‘[t]here are to be prescribed classes of visas’. Section 31(3) provides for the regulations to prescribe criteria for a visa or visas of a specified class.
Division 1.4A of the Migration Regulations deals, among other things, with the approval of business sponsors. The objects of the division include providing for applications for approval as a business sponsor, nominations by business sponsors of activities to be undertaken by prospective holders of Subclass 457 (Business (Long Stay)) visas and approval of those applications and nominations: reg 1.20A.
Regulation 1.20D of the Migration Regulations empowers the Minister to approve or reject an application for approval as a pre-qualified business sponsor or as a standard business sponsor. The Minister is required to approve the application if satisfied of certain matters specified in reg 1.20D(2). Regulation 1.20B, as it then was, included the following definitions:
‘Pre-qualified business sponsor means a person approved as a pre-qualified business sponsor in accordance with regulation 1.20D.
Standard business sponsor means a person approved as a standard business sponsor in accordance with regulation 1.20D.’
Subclass 457 appears in Schedule 2 to the Migration Regulations. Clause 457.111 gives ‘pre-qualified business sponsor’ and ‘standard business sponsor’ the same meanings as in Div 1.4A of the Migration Regulations. Clause 457.223(1) provides that, at the time of the decision, the applicant must meet the requirements of subclass (4) or certain other sub-clauses. The only sub-clause relevant to the applicant’s case is cl 457.223(4). It provides as follows:
(4)The applicant meets the requirements of this subclause if:
(a) the activity in which the applicant proposes 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 accordance with approved form 1068, in relation to the activity by the employer; and
(d) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(e)
the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and
(f) the Minister is satisfied that:
(i)the applicant will be paid at the level specified in the nomination; and
(ii)that level will be at least the minimum salary level that applied at the time the nomination was made; and
(h) if the employer is a standard business sponsor — the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia.’
(Subclass 457.223(4)(b) was replaced by the Migration Amendment Regulations 2002 (No 10) (Cth), cl 3 and Sch 2, Pt 3, Item [2331], but only for applications for visas made after 1 March 2003. Some of the other subclauses have also been changed but it is not necessary to recount the details.)
REASONING
Subclass 457.223(4)(b) makes nomination by an employer who is a pre-qualified business sponsor or a standard business sponsor a necessary precondition for the grant of a Subclass 457 visa. That precondition must be satisfied at the time the decision is made. The definitions of ‘pre-qualified business sponsor’ and ‘standard business sponsor’ make it clear that such a sponsor must be a person approved in accordance with reg 1.20D of the Migration Regulations. The MRT found that Happy Spring did not meet that requirement, its application having been rejected by the delegate and the rejection having been affirmed by the MRT.
It follows that no error has been shown in the MRT’s finding that the applicant was unable to satisfy the requirements of cl 457.223(4)(b). Indeed, the MRT had no alternative but to make that finding. It follows that the MRT did not fall into jurisdictional error in the sense explained by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Accordingly, the MRT’s decision is a ‘privative clause decision’ within s 474 of the Migration Act and the application must be dismissed.
I note that in relevantly identical circumstances, the same conclusion was reached by Stone J in Patwe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 558.
The applicant made submissions to the Court in which she complained that the MRT should not have rejected Happy Spring’s application for approval as a business sponsor. These submissions, however, have no bearing on whether the MRT made any error in relation to its affirmation of the decision to refuse the application for a visa. Plainly, it did not. Whether the applicant can now successfully challenge the MRT’s decision of 24 November 2003 in relation to Happy Springs is not a matter before the Court.
The application must be dismissed, with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate:
Dated: 11 June 2004
The Applicant appeared in person. Counsel for the Respondent: M Allars Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 June 2004 Date of Judgment: 11 June 2004
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