Puwar v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PUWAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1062

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a business visa – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.116, 359A, 359B, 359C, 360
Migration Regulations 1994 (Cth)

Durzi v Minister for Immigration [2006] FCA 1767
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v SZIAI [2009] HCA 39
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
NAYU v Minister for Immigration [2004] FCA 528
SGBB v Minister for Immigration (2003) 199 ALR 364

First Applicant: SURYA BAHADUR PUWAR

Second Applicant: DURGA SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1268 of 2009

Judgment of: Driver FM

Hearing date: 28 October 2009

Delivered at: Sydney

Delivered on: 12 November 2009

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1268 of 2009

SURYA BAHADUR PUWAR

First Applicant

DURGA SHRESTHA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  The decision was made on 29 April 2009.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicants’ Subclass 457 Business (Long Stay) visas.

2. The following statement of background facts is derived from the Minister’s initial written submissions filed on 3 August 2009 and the applicants’ outline of submissions filed on 5 August 2009.

3. On 9 October 2007, the applicants were granted Subclass 457 Business (Long Stay) visas. The first applicant’s visa was granted on the basis that he met the then applicable criteria set out at paragraphs 457.223(4)(f) and 457.223(4)(i) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) as he was being paid at a level specified in the nomination and was sponsored by an approved sponsor: court book (“CB”) 7-16.

Delegate’s decision

1. On 8 July 2008, the delegate was advised by the first applicant’s sponsor that the first applicant had ceased employment with them on 4 July 2008: CB 17-20.

2. On 15 September 2008, the first applicant was sent a ‘notice of intention to consider cancellation’ on the basis that he no longer satisfied paragraphs 457.223(4)(f) and 457.223(4)(i). That letter requested information as to why the visa should not be cancelled pursuant to s.116(1)(a): CB 21-23. The delegate received no reply to the letter.

3. On 17…