Qing Zhang v Minister for Immigration
[2006] FMCA 1131
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QING ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1131 |
| MIGRATION – Review of Migration Review Tribunal decision – Temporary Business Entry (Class UC) Visa – business sponsorship application – business sponsor failed to meet requirements of regulation 1.20D(2)(c) of the Migration Regulations 1994 (Cth) – refusal of a visa – applicant has not raised an arguable case for relief claimed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359A, 476, Migration Regulations 1994 (Cth), Schedule 1 regs.1.20D, 1.20G, Schedule 2 sc.457.223(1) |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Huo v Minister for Immigration [2002] FCA 617 Huo v Minister for Immigration [2002] FCAFC 383 Wang v Minister for Immigration [2004] FMCA 356 |
| Applicant: | QING ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1549 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 30 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1549 of 2006
| QING ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 30 May 2006 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 4 May 2006, affirming a decision of the delegate of the first respondent made on 11 September 1999 (and re-notified on 28 June 2005) refusing to grant the applicant a Temporary Business Entry (Class UC) Visa. In the application for review, the applicant applied for an order that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the Tribunal’s decision.
On 6 June 2006, a response pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) was filed on behalf of the first respondent, opposing the application on the basis that the applicant had not raised an arguable case for relief claimed. At first directions on 27 June 2006, the application was listed for a hearing under r.44.12 of the Rules or for further directions. The parties were also ordered to filed and serve short written outlines of submissions and lists of authorities prior to the hearing.
Background
The applicant arrived in Australia on 12 October 1998 on a Tourist (Short Stay) (Subclass 676) visa. On 19 October 1998 the applicant lodged an application for a Temporary Business Entry Visa (Court Book (“CB”) 1-8), a business sponsorship application (CB 9-10) and a “Nomination by a business sponsor” form (CB 11-14).
On 11 September 1999, a delegate of the first respondent refused to grant the applicant a Temporary Business (Long Stay) (Subclass 457) visa and the applicant was so notified.(CB 23-28) The delegate was not satisfied that the applicant’s sponsorship by the Shanghai Sweet Printing Co Ltd could meet the requirements of reg.1.20D(2)(c) of the Migration Regulations 1994 (Cth) (“the Regulations”) and the “benefit to Australia” criterion in particular:
a)There was insufficient evidence that the employer could in any way introduce, utilise or create in Australia new or improved business skills or new or improved technology: reg.1.20D(2)(c)(i) of the Regulations;
b)The information and documentation contained with the sponsorship did not establish that the employer had a satisfactory training record or commitment to training Australian citizens or permanent residents in its Australian operations: reg.1.20D(2)(c)(ii);
c)Shanghai Sweet Printing, apart from not operating a business in Australia, would be unlikely to be approved as a standard business sponsor, therefore the business nomination was refused on the basis that reg.1.20G(1)(d)(ii) was not met.
On 28 June 2005, the applicant was re-notified of the delegate’s refusal decision.(CB 30-31) On 14 July 2005, an application for review was filed with the Tribunal.(CB 32-38) On 27 February 2006, the applicant was invited to comment on the information that the Tribunal considered to be the reason or a part of the reason for affirming the decision under review, pursuant to s.359A of the Act. In particular, that the applicant did not have approved business sponsorship or nomination.(CB 42-43)
On 30 March 2006, the Tribunal received a response from the applicant’s migration agent which stated:
…The applicant has found a new sponsor, a new employer, Allbest International Pty Ltd. The employer has lodged a sponsorship and nomination application for the review applicant. Currently the application for the sponsorship and nomination are in processing at DIMIA office, in Sydney…(CB 44)
On 4 May 2006, the applicant gave the following oral evidence at a hearing:
a)He lost contact with Shanghai Sweet Printing and no longer sought to work for that company;
b)He had found another sponsor, Allbest International Pty Ltd, and provided evidence of a nomination and business sponsorship application lodged with the Department. The applicant requested that the Tribunal delay making its decision until the outcome of Allbest International’s business sponsorship and nomination applications. (Applicant’s outline of submissions, p.1)
After the hearing, the Tribunal affirmed the delegate’s decision and found that there was no evidence before the Tribunal of an approved business sponsorship or nomination by an Australian business which concerned the applicant at the time of the decision: Sch.2 sc.457.223(4) of the Regulations. The Tribunal decided not to further delay its review as requested by the applicant and ultimately found that the applicant did not satisfy sc.457.223(4). The Tribunal found that the applicant did not meet the criteria for a Subclass 457 visa and affirmed the decision under review.
The Tribunal decision of C Packer, reference N05/03915, records the following background information. Mr Qing Zhang, a national of the People’s Republic of China, was born on 27 August 1958. Mr Zhang’s nominated sponsor for his Business (Long Stay) (Subclass 457) visa application was an overseas company, Shanghai Sweet Printing Co Ltd.(CB 55)
Application for Review of the Tribunal’s Decision
The application to this Court for review under s.39B of the Judiciary Act sets out the following grounds:
1.A breach of the rules of natural justice occurred in connection with the making of the decision;
2.Fair procedures that were required by law to be observed in connection with the making of the decision were not observed;
3.The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
4.Particulars and Grounds:
Tribunal did not fully consider the information and evidence I provided before and during the hearing. The Tribunal denied my request to provide the evidence which is strong favour to my application after the hearing. The Tribunal did not give any weight to the fact that I could provide an important and favourable evidence which I could provide very soon. I do not believe that the Tribunal has followed legal procedure to fairly consider my application. I believe that the evidence which I have obtained should be regarded as strong evidence to support my claims. (copied without alteration or correction)
Submissions
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant filed an outline of submissions prior to the hearing in accordance with orders made at the first Court date.(see [6] above) The applicant indicated that despite his request to have the hearing delayed, the Tribunal proceeded to make a decision refusing his visa application. The applicant claimed that the Tribunal’s decision record does not disclose this request and makes no mention of the applicant’s change in circumstances.
The applicant also indicated that on 13 May 2006, nine days after the Tribunal hearing, the sponsorship application of his new employer was approved. This outcome justifies the request for an extension of time and exposes the unreasonableness of the Tribunal in its decision-making process. The applicant claimed that this demonstrated:
a)A breach of the rules of natural justice occurred in connection with the making of the decision;
b)Fair procedures that were required by the law to be observed in connection with the making of the decision were not observed; and
c)The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
The applicant filed documents with his written submissions which he requested be considered in support of his claim. These included a receipt for the new sponsorship application issued and an automatic notification of standard business sponsorship approval, both from the Department.
The applicant filed an affidavit on 30 May 2006 with his application. It restates the background to the applicant’s arrival in Australia and his subsequent applications for various visas. Attached to the affidavit is a copy of the Tribunal’s decision record. The affidavit does not otherwise provide any further material in respect of the applicant’s claim.
Ms Warner Knight, for the respondents, filed written submissions in accordance with orders of the Court. She argued, in respect of a breach of natural justice and denial of procedural fairness, that in the absence of an approved sponsor, the Tribunal was under no obligation to postpone its decision-making. Especially when a condition precedent (the approval of a business sponsor) to an affirmative finding in favour of the applicant is absent, the Tribunal is entitled to make that decision. The Court was referred to Huo v Minister for Immigration [2002] FCA 617 at [30] per Conti J:
There is in my opinion no substance in those submissions made on behalf of Mr Huo. If a condition precedent to an affirmative finding in favour of an applicant for a business long stay visa is absent, and the applicant must therefore fail on that account, there is no reason in the law of administrative review, or otherwise in the Act itself, why the decision-maker must address the fulfilment or otherwise of any other or additional condition(s) precedent to approval. Moreover the fact merely that an application for review has been made to the Tribunal in relation to a DIMA decision cannot adversely affect the viability of the decision, so long as the decision remains in force and is not set aside by the Tribunal. As Senior Counsel for the Minister rightly pointed out, there was no requirement in law for the Tribunal to deal expressly with every aspect of the criteria for qualification to a visa, and to make findings in relation thereto, once it found that one critical element was absent.
This decision was approved on appeal: Huo v Minister for Immigration [2002] FCAFC 383.
The Court was also referred to Wang v Minister for Immigration [2004] FMCA 356 at [17] per Barnes FM:
Whether or not to delay making a decision is a matter ordinarily within the discretion of the Tribunal. I consider that the Tribunal properly met its obligations by considering whether to delay the review having regard to the relevant circumstances and making a decision based on such circumstances as outlined above. It has not been suggested nor is it apparent that the Tribunal failed to consider the request or to take into account relevant matters not referred to in the decision. It has not been established that there was an unreasonable refusal to delay making a decision or a denial of procedural fairness.
Further that the Tribunal in its decision clearly set out the factors to take into account when asked for an extension of time to secure a new business sponsor. At the Tribunal hearing on 4 May 2006, the applicant indicated that a nomination for a new business sponsor had been lodged on 28 March 2006. However, there was no evidence before the Tribunal at that time that the applicant in fact had an approved business sponsor. The Tribunal then set out the history of what had occurred since the Department made its decision on 11 September 1999 and set out the reasons for its decision (CB 56):
15.The Tribunal considered whether to further delay this review as requested by the visa applicant. The visa applicant claimed at the hearing that he lost contact with the overseas business after July 1999 and he was unable to seek another business sponsor because he did not have permission to work. The visa applicant also stated that he worked in Australia in a variety of casual jobs up to 2005 as he had to survive. He indicated that from 1998/99 to 2005 he was always waiting for a decision from the Department concerning his business visa application. He indicated he did not approach the Department to see what had happened with his application because he had gone through an agent. He indicated he started carefully looking for a sponsor after he received permission to work in July 2005.
16.The Tribunal is mindful that the application was lodged on 19 October 1998 and the delegate’s decision to refuse to grant the visa was made on 11 September 1999. The delegate’s decision was re-notified on 28 June 2005. The review was lodged on 14 July 2005. The visa applicant has been unable to find an approved business sponsor since 1998. In particular, he has been unable to find an approved business sponsor since July 2005, some 10 months. The review application is now almost 10 months old and the Tribunal is required amongst other things to make quick decisions. After carefully considering the visa applicant’s request and the available information, the Tribunal has decided not to further delay this review.
Ms Warner Knight submitted that it was entirely open to the Tribunal to conclude that the applicant did not satisfy any part of Schedule 2 sc.457.223 of the Regulations.
Conclusion
As the applicant appeared at the hearing as a self-represented litigant, this places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I am satisfied that none of the grounds raised in the application can be sustained. Neither is it apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 16 August 2006
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