Qu v Minister for Immigration - [2005] FMCA 1352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QU v MINISTER FOR IMMIGRATION

[2005] FMCA 1352

MIGRATION – Application for temporary business entry (Class UC) visa on ground of sponsorship by approved business sponsor.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.353(2)(b); 359A; 475A; 379A; 379G

Applicant:

XIN WEN QU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2278 of 2004

Judgment of:

Emmett FM

Hearing date:

16 September 2005

Date of Last Submission:

16 September 2005

Delivered at:

Sydney

Delivered on:

16 September 2005

REPRESENTATION

The Applicant appearing for himself

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Mr J. Kettle, Sparke Helmore

ORDERS

That the applications before this Court be dismissed.
That the Applicant pay the costs of the Respondent in an amount of $4000.00.
That the Applicant pay the costs in accordance with Order 2 above within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2278 of 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) (and see s.475A of the Migration Act 1958 (Cth) (“the Act”))for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a Temporary Business Entry (ClassUC) visa to the Applicant.
The Applicant was born in Lai Zhou, the Peoples Republic of China (“the PRC”) on 24 October, 1960.
On 22 April 2003, the Applicant lodged an application for a Temporary Business Entry (ClassUC) visa. In answer to a question in the application “how are you applying for a visa to enter or remain in Australia?”, the Applicant ticked the box that responded, relevantly, as a person sponsored by an Australian business. The Applicant went on to identify the business name of his employer as Ao Lei Holding Pty Ltd. In response to the question “how are you entering Australia?”, the Applicant ticked the box “as a person sponsored by an Australian or overseas business.”
On 14 May 2003, the delegate refused the Applicant’s application for a Temporary Business Entry (ClassUC) visa on the basis that the Applicant’s application did not meet the requirements of the relevant migration legislation.
On 11 June 2003, the Applicant lodged a review application to the Tribunal. On 4 June 2004, the Tribunal affirmed the decision of the delegate not to grant a Temporary Business Entry (Class UC) visa. The Applicant nominated an authorised recipient to receive all correspondence in relation to his application. On 2 December 2003, the Tribunal received a letter from the Applicant cancelling his nominated authorised recipient as his representative and stating that he would act for himself. The letter requested that any communication from the Tribunal be sent to the Applicant “directly” (which I take to be the residential address identified by him in his review application) and not to his former authorised recipient.
On 7 January 2004, the Tribunal wrote to the Applicant directly at his residential address inviting comment on information in the possession of the Tribunal that “the application for approval as a business sponsor made by Ao Lei Holding Pty Limited was refused by the Department on 14 May 2003”. I asked the Respondent’s counsel whether there was any issue in respect of the letter of 7 January 2004 being in compliance with s.379A of the Act. The Respondent properly identified to me the requirement pursuant to s.379G of the Act that an invitation to comment on information must be given to the authorised recipient. However, the Respondent contended, and I accept that, in light of the applicant’s letter dated 2 December 2003, cancelling the authority to receive and directing that all correspondence be sent directly to the Applicant, that s.379G has no application and the Tribunal’s letter dated 7 January 2004 complies with s.359A of the Act.
On 8 March 2004, the Applicant responded to the Tribunal’s invitation to comment, dated 7 January 2004, and advised that Ao Lei Holding Pty Limited was seeking review of its unsuccessful application for approval as a standard business sponsor.
On 25 June 2004, the Tribunal handed down its decision made on

11 June 2004 affirming the decision of the delegate that the applicant is not entitled to the grant of a temporary business entry (Class CU) visa.
On 21 July 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 21 October 2004, the Applicant filed an Amended Application on 3 November 2004, seeking relief on the following ground:
“1. The MRT failed to act according to substantial justice and the merits of the case as required by section 353 (2) (b) of the Migration Act 1958.
Particulars
a. The MRT failed to assess fairly and unbiasedly the evidence submitted by the applicant to determine whether the sponsoring business is lawfully operation in Australia. (MRT File N03/04136 para.34-36). The MRT reached the finding that the business is not lawfully trading on the basis of its unfounded concern that the business might not have provided the original PAYG summaries to the ATO (para.36.) and on the basis that the business has not paid superannuation to its employees.
b. The MRT failed to assess fairly and unbiasedly the evidence submitted by the applicant to determine whether the sponsoring business has a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents (MRT File N03/04136 para. 41-44). The MRT failed to accept the applicant’s claim that the business had been training Australian employees in the form of organizing study seminars in the company. (para. 45)”
The Applicant was unrepresented before me this morning, however, had the assistance of an interpreter. The Applicant made submissions that largely appeared to go to the reasons why Ao Lei Holding Pty Limited was not approved as a standard business sponsor. He submitted that he was the major director and shareholder of Ao Lei Holding Pty Limited, that the company was registered and paid tax for its employees. He submitted that if staff training was inadequate that issue could be addressed by the company in the future by having properly qualified staff. He also referred to a person, that he identified as a lawyer who had represented him in the past, had provided false information to the Tribunal.
At the heart of the Tribunal’s decision was the fact that it was on the ground of sponsorship by a business operating in Australia, being Ao Lei Holding Pty Limited, that the applicant made his visa application. That business sponsor nominated by the Applicant, Ao Lei Holding Pty Limited, was not an approved standard business sponsor.
The Tribunal’s decision is based on the failure of the Applicant to be sponsored by a business approved as a standard business sponsor. Pursuant to regulation 457.223(4), it is a required criteria of the Applicant’s visa that an employer be, relevantly, a standard business sponsor. Regulation 1.20B clearly defines standard business sponsor as a person approved as a standard business sponsor in accordance with regulation 1.20D. Ao Lei Holding Pty Limited being the business sponsor identified by the Applicant was not an approved business sponsor at the time of the handing down of the Tribunal’s decision. There is no evidence before me as to its current status.
In the circumstances, the Tribunal was entitled to make the findings that it did on the material before it. The Tribunal’s decision is not effected by error and accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications filed in this Court by the Applicant are dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 16 September 2005