Luo v Minister for Immigration
[2006] FMCA 1622
•1 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LUO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1622 |
| MIGRATION – Visa – Subclass 457 visa – Migration Review Tribunal – MRT – Temporary Business Entry (Class UC) visa – business nomination – where applicant did not have an approved business nomination – no reviewable error. |
| Migration Act 1958 (Cth), ss.359A, 474, 476 |
| Applicant: | ZHENG WEN LUO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1895 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 October 2006 |
| Date of Last Submission: | 31 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1895 of 2006
| ZHENG WEN LUO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal made on 23rd May 2006, affirming the decision of a delegate of the Minister finding that the Applicant is not entitled to the grant of a Temporary Business Entry (Class UC)
Background
The Applicant is a citizen of the People’s Republic of China who applied for a Temporary Business Entry (Class UC) visa on
12th December 1997. In his application he nominated a company called Lai Bo Qingxi Pty Ltd as his employer. A delegate of the Minister refused his application on 21st September 1998.
The Applicant was originally notified of the delegate’s decision on
21st September 1998. For reasons that are not relevant to these proceedings, the Applicant was re-notified on 18th May 2005.
On 6th July 2005 the Applicant sought a review of that decision by the Migration Review Tribunal.
Review by the Migration Review Tribunal
The Tribunal wrote to the Applicant on 14th February 2006 under the provisions of s.359A of the Migration Act. A copy of a draft of the Tribunal’s letter can be found at page 65 of the Court Book. The letter advised the Applicant that his case file showed that a decision was made on 21st September 1998 not approve the business nomination by Lai Bo Qinxi Pty Ltd.
The letter also told the Applicant that the information was relevant to the review because it was necessary to have an approved business nomination to meet the criteria for the visa.
The Applicant replied to the Tribunal’s letter on 14th March 2006.
A copy of the Applicant’s letter appears on pages 67 and 68 of the Court Book. In his letter, the Applicant stated that he had arrived in Australia in September 1997. He had contacted a Migration Agent called Thomas Liu of Oriental Migration Services in Chinatown who had told him he would assist him to get a long-term business visa.
The Applicant obtained a visa, which he found out was a bridging visa, although he claims that the agent told him it was a temporary business visa. The Applicant claimed that he made numerous inquiries of the agent about the progress of his visa application. Eventually, the Applicant found in 2003 that the agent had moved and had left no forwarding address. The Applicant was taken into Immigration detention on 6th May 2005.
The Applicant enclosed a work reference from his employer.
The Applicant attended a hearing of the Tribunal on 17th May 2006, where he gave evidence with the assistance of an interpreter in Mandarin. He told the Tribunal that he believed that he held a valid visa until he was apprehended and detained by Immigration officers. The Tribunal noted that:
12. The visa applicant does not have an approved business nomination but will ask his current employer if the employer will sponsor him. The Tribunal advised the visa applicant that any information provided to the Tribunal will be considered[1].
[1] Court Book at 82
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons, which are brief, are set out on page 82 of the Court Book. The Tribunal noted that the Applicant had applied for a Subclass 457 (Business Long Stay) visa, and that visas of that subclass can be obtained on a number of grounds. The Tribunal stated:
The ground on which the visa application was made was nomination by an overseas business. One necessary criterion for a Subclass 457 visa on the basis of a nomination by an overseas business is that the proposed employer has an approved business nomination. As indicated above, the application for the business nominator made by Lai Bo Qingxi Pty Ltd on 12 December 1997 was not approved.[2]
[2] Court Book at 82
The Tribunal found that the Applicant did not have an approved business nomination by an overseas business, nor was there any evidence that he had an approved business nomination in respect of an Australian business. The Tribunal found that the Applicant did not meet sub-clauses 457.223 (4), (5) or (6). The Tribunal also found that the material before it did not suggest that the Applicant met any of the other grounds for a Subclass 457 visa.
As the Tribunal found that the Applicant did not meet the criteria for a Subclass 456 visa or a Subclass 457 visa, the Tribunal affirmed the decision of the delegate.
Application for Judicial Review
The Applicant seeks an order that his application should be remitted to the Migration Review Tribunal and that he should receive a refund of his application fee. He sets out these grounds:
a)MRT officer failed to consider my specific situation.
b)
My application and sponsorship application were lodged in
12 December 1997. It has been nine years when it reached MRT. No sponsor could wait so long to start a business.
It is apparent from the application that the Applicant has a hazy idea about the process of application for a visa. The only reason that the application for review took nine years to reach the Migration Review Tribunal was because the Applicant did not apply to the Tribunal until 6th July 2005.
The Applicant did not file any written submissions but addressed the court at some length. He made these submissions:
a)Before the Tribunal made its decision, he should have been told whether the decision was going to be favourable to him or not.
b)He was able to provide evidence to show that he has sponsorship. An Australian company, his current employer, has applied for sponsorship. After he received the decision from the Tribunal, the Applicant spoke to his employer who agreed to apply to the Department. The application was submitted three weeks before the hearing.
c)Neither the Migration Review Tribunal nor the Department of Immigration and Multicultural Affairs gave him a fair opportunity during the hearing of his application. Although the Department gave him another opportunity (presumably by re-notifying him), the Tribunal did not mention during the hearing that he could apply for another company in Australia to sponsor him.
d)The Australian legal system would be unfair if it took the side of either of the parties. The Tribunal and the Department did not consider his application completely or reasonably.
e)The Applicant was detained by Immigration officers on 6th May 2005. On 9th May, he was interviewed by an officer who told him that he could apply to the Migration Review Tribunal. He was released on a Bridging visa.
In reply to a question from the Bench, the Applicant conceded that on 23rd May 2006 he did not have an approved business nomination.
Counsel for the First Respondent Minister, Ms McWilliam, replied to the Applicant’s submissions. She pointed out that the Applicant was not correct when he claimed that the Tribunal should have told him before the decision whether he was going to be successful or not. He did not have sponsor at the time of the Tribunal hearing. He had also made points going to a different application:
·An Australian company has now applied for sponsorship.
·After he received the MRT decision he realised that he could seek another sponsor.
·It is not the MRT’s role to give advice or take up the applicant’s case.
·Although the Applicant claimed that the MRT should have advised to look at other types of Subclass 457 visas, the Tribunal did in fact consider his eligibility for other visas.
·His claim that the Department did not give him a fair opportunity (meaning the Tribunal) is refuted by the s.359A letter that the Tribunal wrote to him, pointing out that he did not have an approved business nomination, so that he could not meet a necessary criterion for a sub-class 457 visa.
Conclusions
The Applicant must show that the Tribunal made a jurisdictional error in its decision, otherwise the decision is a privative clause decision.
As counsel for the Minister submits, the Applicant’s grounds in his application do not show or even suggest any jurisdictional error. There is nothing to suggest that the Tribunal addressed the wrong criteria, misunderstood the criteria, or misapplied the criteria in considering the Applicant’s specific situation.
The Applicant nominated his then migration agent as his authorised recipient for correspondence in respect of his application for a visa. The Department addressed all correspondence to him care of the agent, as he had nominated. A copy of the appointment to act as agent appears at page 12 of the Court Book. It is between the Applicant and his former agent, with whom he lost touch, as to why the agent did not pass on the notification that his application had been refused. In any event, the Department re-notified him on 18th May 2005, after he had been granted a bridging visa.
Whilst the Applicant claims that he was not aware that he could seek an Australian company to nominate him until after he received the Tribunal decision, this very issue appears to have been discussed with the Applicant at the hearing.[3]
[3] Tribunal decision at [12] on page 82 of the Court book
Even so, the Tribunal found that the Applicant did not have an approved business nomination at the time of the hearing. Even if the Applicant subsequently obtained an approved business nomination, which he has not done to date, this would not constitute an ex post facto jurisdictional error on the part of the Tribunal. Again, as
Ms McWilliam has submitted, the Tribunal had advised the Applicant by its s.359A letter of the 14th February 2006 that he did not have an approved business nomination, which would be fatal to his application. The Tribunal has clearly complied with the provisions of s.359A of the Migration Act.
I am aware that the Applicant is not legally represented. He did not appear to have had any legal advice, as his understanding of the procedure was imperfect. My own independent review does not disclose any jurisdictional error on the part of the Tribunal.
As there is no jurisdictional error, the decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act.
A privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court. The decision of the Migration Review Tribunal is not subject to prohibition, mandamus, injunction, declaration or certiorari in this Court (s.474(1).
The application will be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 1 November 2006
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