Patwe v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 558

FEDERAL COURT OF AUSTRALIA

Patwe v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 558

NAZIR AHMED ABDUL RAZAK PATWE AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1556 OF 2003

STONE J
4 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1556 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAZIR AHMED ABDUL RAZAK PATWE
FIRST APPELLANT

YASMIN NAZIR AHMED PATWE
SECOND APPELLANT

HUMA NAZIR AHMED PATWE
THIRD APPELLANT

HURRAINE NAZIR AHMED PATWE
FOURTH APPELLANT

ARBAAZ NAZIR AHMED PATWE

FIFTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

4 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent’s cost of the appeal.

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	N1556 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAZIR AHMED ABDUL RAZAK PATWE
FIRST APPELLANT

YASMIN NAZIR AHMED PATWE
SECOND APPELLANT

HUMA NAZIR AHMED PATWE
THIRD APPELLANT

HURRAINE NAZIR AHMED PATWE
FOURTH APPELLANT

ARBAAZ NAZIR AHMED PATWE
FIFTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE:

4 MAY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Migration Review Tribunal (‘MRT’).

2. On 26 March 2002 the first appellant, to whom I shall refer as the appellant, applied for a Temporary Business Entry (Class UC) visa.   The appellant’s wife and three children lodged applications for visas of the same class as secondary applicants on 24 April 2002.  The applications of the other appellants, his wife and children, depended on the appellant’s claims.

3. There are two sub-classes of the Temporary Business Entry (Class UC) visa, namely 456 (Business Short Stay) and 457 (Business Long Stay); see Migration Regulations 1994 Schedule 1 Item 1223A(4). The appellants sought Business (Long Stay) visas as they were seeking to remain in Australia for longer than 3 months.

4. The criteria for the grant of a Business (Long Stay) visa are set out in Schedule 2 of the Migration Regulations and include a number of alternative grounds on which the requirements for grant of a visa may be met. The appellant’s claims were based on one ground only, that of sponsorship by an Australian business under cl 457.223(4)(b)(i). This clause requires that the Australian business be a pre-qualified business sponsor or a standard business sponsor. The appellant nominated Australian Vanlines Pty Ltd (‘AVL’) as his sponsor.

5. The appellants visa applications were refused by a delegate of the Minister.  They sought review of these decisions in the MRT which affirmed the delegate’s decision on 29 January 2003.  In its reasons for decision the MRT referred to a number of issues but the crucial part of its reasons is as follows:

   ‘One necessary criterion for a Subclass 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or a standard business sponsor.  However, the application for approval as a business sponsor made by Australian Vanlines Pty Ltd was refused in a separate decision.
   There is no application for review before the Tribunal in respect of the decision not to approve the proposed employer as a business sponsor.  Such decisions are reviewable by the Tribunal but only if a valid application for review is made by the proposed employer (see sections 338 and 347 of the Act and regulation 4.02 of the Regulations). The time limit for seeking such a review appears to have expired.
   The Tribunal finds that the visa applicants’ proposed employer has not been approved as a business sponsor.  The Tribunal finds that the visa applicants do not meet the criteria for Subclass 456 visas, or the criteria for Subclass 457 visas.  The Tribunal must therefore affirm the decisions under review.’

6. At the hearing of this appeal, the appellant persistently asserted that AVL had been approved as a sponsor.  There is, however, sufficient indication in the materials before the Court to satisfy me that the appellant is not correct.  AVL has not sought review of the decision to refuse the appellant’s application; the appellant at no stage produced documentary evidence of the approval; in its written reasons the delegate of the Minister referred to an application for approval of AVL as a business sponsor and stated,

   ‘A decision has been made to refuse the application … The sponsoring business has not been approved as a business sponsor’. 

   In a letter to the MRT dated 26 June 2002, the appellants’ migration agent stated that a director of AVL had intentionally failed to supply the respondent’s department with the information necessary to have the sponsorship approved.  As the MRT noted, there appears to have been a falling out between the appellants and other people who were to be associated with them in the proposed business venture, with the result that the sponsorship anticipated by the appellants was not forthcoming.  The MRT commented that the appellants had requested it to defer its decision to allow them time to find another sponsor. 

7. Before the Tribunal and the Federal Magistrate and again in this Court the appellants raised a number of other issues relating to a claim that procedural fairness had been denied.  They say there were problems in interpretation in the MRT hearing and that they needed time to obtain legal advice.  They say that the Federal Magistrate erred in refusing to grant them an adjournment. 

8. It is not necessary for me explore these claims. The MRT and the Federal Magistrate were correct in identifying the requirement of an approved sponsor as a necessary condition for the grant of visas sought by the appellants.  The lack of an approved sponsor means that the resolution of the claim as to procedural fairness could not affect the outcome of this appeal; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 116-117. It follows that the appellants simply fail to meet an essential criterion for the grant of the visas they seek, and this being so, their appeal to this Court must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             4 May 2004

Counsel for the Appellant:	The appellant appeared for himself
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 May 2004
Date of Judgment:	4 May 2004