FEDERAL COURT OF AUSTRALIA
Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252
MIGRATION – Migration Regulation 1.20D(2)(c)(ii) – standard business sponsor – MRT decision – judicial review of – whether applicant’s record of training satisfactory – purpose and context of regulation – applicant importer, wholesaler and retailer – on-the-job training in retail aspect of business operations only – training must be reasonably commensurate to nature and extent of business operations in Australia
Migration Regulations 1994 1.20D
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Macquarie Dictionary (Rev 3rd ed, 2001)
New Oxford Dictionary of English (1998)NICE SHOES AUST PTY LTD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL
N 2199 of 2003
BRANSON J
18 MARCH 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2199 of 2003
BETWEEN:
NICE SHOES AUST PTY LTD
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
18 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for judicial review of the decision of the Migration Review Tribunal be dismissed.
2.The applicant pay the respondents’ costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2199 of 2003
BETWEEN:
NICE SHOES AUST PTY LTD
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
BRANSON J
DATE:
18 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
By an amended application dated 13 February 2004 the applicant seeks judicial review of a decision of the second respondent (‘the Tribunal’). By its decision the Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) that the applicant does not meet the criteria prescribed by regulation 1.20D of the Migration Regulations 1994 (‘reg 1.20D’) for approval as a standard business sponsor.
The second respondent has filed an appearance by which it submits to such order as the Court may make, save as to costs.
The only ground of review upon which the applicant relied at hearing was that the Tribunal misinterpreted and misapplied reg 1.20D.
For the reasons set out below the application for judicial review of the decision of the Tribunal will be dismissed.
THE CRITERIA
The critical criterion for the purposes of this application is that prescribed by reg 1.20D(2)(c)(ii). It is appropriate to place that criterion in context. Regulation 1.20D relevantly provides:
‘(1)Subject to this regulation, the Minister may … approve or reject an application for approval as … a standard business sponsor.
(2)The Minister must approve an application for approval as a … standard business sponsor, made in accordance with regulation 1.20C if:
(a)the Minister is satisfied that the applicant for approval is actively and lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business…
Keep reading for free
Create a free CaseChat account to read Nice Shoes Pty Ltd v MIMIA and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2004] FCA 252
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal had correctly applied Regulation 1.20D in its decision. The court had to examine the Tribunal's reasoning and determine if it had appropriately considered the criteria set out in Regulation 1.20D(2)(c)(ii) when assessing the applicant's business operations and its potential contribution to Australia. The court focused on whether the Tribunal had correctly interpreted the requirement for the applicant to introduce or utilise new or improved technology or business skills in Australia, as well as the need for a satisfactory record of training Australian citizens and permanent residents.
The court concluded that the Tribunal had not misinterpreted or misapplied Regulation 1.20D. It found that the Tribunal had appropriately considered the evidence presented by the applicant and had made a reasoned decision based on the statutory criteria. The Tribunal had correctly noted that while the applicant's business involved the importation and sale of shoes, there was insufficient evidence to demonstrate that the business introduced or utilised new or improved technology or business skills in Australia. Additionally, the Tribunal had reasonably concluded that the applicant's training practices did not meet the required standard under the regulation.
ORDERS:
1. The application for judicial review of the decision of the Migration Review Tribunal be dismissed.
2. The applicant pay the respondents’ costs.
Orders
Orders of the court
1. The application for judicial review of the decision of the Migration Review Tribunal be dismissed.
2. The applicant pay the respondents’ costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BRANSON J
The critical criterion for the purposes of this application is that prescribed by reg 1.20D(2)(c)(ii). It is appropriate to place that criterion in context. Regulation 1.20D relevantly provides:‘(1)Subject to this regulation, the Minister may … approve or reject an application for approval as … a standard business sponsor.(2)The Minister must approve an application for approval as a … standard business sponsor, made in accordance with regulation 1.20C if:(a)the Minister is satisfied that the applicant for approval is actively and lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to: (i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; or(ii)expansion of Australian trade in goods or services; or (iii)the improvement of Australian business links with international markets; or (iv)competitiveness within sectors of the Australian economy; and’(b)…(c)the Minister is satisfied that the applicant for approval:(i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; ….’ (emphasis added)REASONS OF THE TRIBUNAL The Tribunal noted that the applicant claims to operate a business in Australia as a wholesaler and retailer of shoes. Song Qi Lin (‘Mr Lin’) and Yun Yun Zhu (‘Ms Zhu’) gave evidence to the Tribunal on behalf of the applicant. In [14]-[18] of its written reasons for decision the Tribunal summarised the evidence of Mr Lin and Ms Zhu as follows:‘14. Mr Lin stated that there were 9 people employed in the business. Ms Zhu and himself, and 7 staff: 4 full-time and 3 part-time. The full-time workers were salespersons. One of them also undertook quality control of the imported goods, and he was a manager. This person’s duties included: he had to know everything about the shoes and their parts; all were imported from China; sometimes they sold local shoes. The business had 2 retail shops and 3 market stalls. The shop at Burwood is managed by a person who was full-time, but is presently part-time. The other shop was managed by someone who is presently on leave as they have a workers compensation claim. The part-time workers are salespersons.15. Sales staff are trained on-the-job. They have to understand everything about shoes in the shop: sizes and materials. They learn how to use the computer and how to serve the customers.16. Quality control person is taught the procedure of how to make shoes. For example the top and bottom parts are joined and are made from different materials. He showed a shoe to the Tribunal. Training is on-the job. The training takes a very long time. For example he and Ms Zhu were still learning after 5 years. The quality controller can tell whether the shoes are of good quality. They receive samples of the goods to check the quality. Sometimes someone goes to China to inspect the shoes.17. People who manage the shops are taught on-the-job. They are taught: how to communicate with and serve customers; to use a computer; about shoes (the materials and quality); and understand what a customer would like to buy. The business pairs a person with one of the owners or with someone who has been working there quite a while. Two persons had received training in the past year to be a shop manager. Mr Lin looks after the warehouse and next year another person would be hired to do so.18. The business continues to train staff. They propose to expand to Melbourne and Brisbane by opening more retail shops. They imported particular shoes which was introducing “new technology” into Australia.’