Shao v Minister for Immigration
[2004] FMCA 813
•25 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAO & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 813 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to grant long-stay temporary business entry (Class UC) visas – no reviewable error – application dismissed. |
Migration Regulations 1994, Schedule 2 cl.457.233
Judiciary Act 1903 (Cth), s.39B
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Fusi v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 458
Sundaze International Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 814
| Applicants: | SHAO JIA, ZHU HUI GANG & ZHU YAN LI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG999 of 2004 |
| Delivered on: | 25 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 14 October 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicants appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The first applicant, Mrs Jia Shao, be appointed as litigation guardian for Yan Li Zhu pursuant to Rule 11.11(1) of the Federal Magistrates Court Rules 2001.
The requirement to file an affidavit of consent under Rule 11.11(2) of the Federal Magistrates Court Rules 2001 be waived.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG999 of 2004
| SHAO JIA, ZHU HUI GANG AND ZHU YAN LI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants seek a review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 March 2004 affirming the decision of the delegate of the respondent made on 31 October 2002 refusing to grant the applicants long-stay temporary business entry (Class UC) visas.
Background
The first named applicant, Mrs Jia Shao, is a 40 year old Chinese citizen from Shanghai. The second named applicant, Mr Zhu, is Mrs Shao’s husband. The third named applicant, Yan Li Zhu, is the son of Mrs Shao and Mr Zhu. The applicants arrived in Australia on 3 May 2002 travelling on Class UC Sub-class 457 visas which expired on 22 October 2002 (Court Book pp.4 and 12) (“CB”).
On 21 October 2002 the applicants applied for long stay temporary (class UC) visas with Mrs Shao being the primary applicant and Mr Zhu and Yan Li Zhu applying as members of Mrs Shao’s family unit (CB pp.1-19).
The proposed period of stay was from 22 October 2002 to 22 October 2006 (CB p.4). The application indicated that Mrs Shao was applying for a visa, “as a person sponsored by an Australian business (including RHQ or labour agreements) or a person sponsored by a business outside Australia” (CB p.5). The employer’s name nominated in the application form was Sundaze International Pty Limited (“Sundaze”).
On 31 October 2002 a delegate of the Minister refused to grant the applicants temporary business entry (Class UC) visas (CB pp.22-25). On 22 October 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.27-33). In support of the applicants’ application, the applicants provided a letter from their migration agent to the Tribunal dated 20 November 2002 (CB pp.34-41).
On 29 April 2003 the Tribunal invited the applicants to give additional information (CB pp.47-49). That letter contained a statement that:
“The delegate did not approve your proposed employment as a pre-qualified business sponsor or a standard business sponsor. The delegate therefore found that you did not meet the requirements for the grant of a temporary business entry (Class UC) visa. Unless you can show that you have an approved business sponsor at the time the Tribunal makes its decision, the Tribunal must affirm the delegate’s decision that you are not entitled to a grant of a temporary business entry (Class UC) visa.”
The applicants’ migration agent responded by letter dated 13 June 2003 (CB pp.51-54) which sought to the challenge the finding of the delegate in the related application by Sundaze for pre-approval as a business sponsor, which had been refused.
On 26 September 2003 the Tribunal invited Mrs Shao to attend a hearing (CB pp.265-270). Mrs Shao attended the hearing by video link on 5 November 2003 (CB p.281 [7]). On 10 March 2004 the Tribunal handed down its decision affirming the delegate’s decision (CB pp.279-283). A copy of the Tribunal’s decision was sent to the applicants’ migration agent on 10 March 2004 (CB pp.277-278).
The Tribunal’s findings and reasons
The Tribunal noted that at the time the applicants’ application was filed, (Class UC) visa applications contained two sub-classes, sub-class 456 (business [short stay]) and sub-class 457 (business [long stay]). The Tribunal technically concluded that sub-class 456 was not relevant because such a visa could not be granted to an applicant in Australia and the applicant was seeking a visa for longer than three months (CB p.282 [14]).
The Tribunal noted that a sub-class 457 visa could be obtained on various grounds and the ground on which the applicants’ application had been made was sponsorship by a business operating in Australia. The Tribunal noted that no claim had been made in respect of other grounds, and the material before the Tribunal did not suggest that Mrs Shao met any of those grounds (CB p.282 [15]).
The Tribunal correctly said that Mrs Shao had to meet at least one of the sub-class clauses listed in 2-9 of sub-clause 457.223(1) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). Given the evidence before it, the Tribunal found that Mrs Shao was unable to satisfy reg. 457.223 because she was not subject to a labour agreement; a RHQ agreement; sponsorship by an overseas business; an independent executive; service sellers or a person accorded certain privileges and immunities (CB p.282 [17]).
The Tribunal found that at the time of the application, Mrs Shao’s employer (Sundaze) was not an approved business sponsor as it was unable to meet the requirements of reg. 1.20D(2) of the Regulations. At the time of the review the Tribunal found that Mrs Shao had no approved business sponsor – the Tribunal having made a decision in the associate matter of Sundaze review application, refuse an application. As Mrs Shao had no approved business sponsor the Tribunal found that she was ineligible for the business entry visa that she was seeking (CB p.283 [9]).
The application for review of the Tribunal’s decision
On 6 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 31 August 2004 the applicant filed an amended application with the following grounds:
“(1)There was an error or law in the Tribunal’s decision constituting a jurisdictional error.
(2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
(3)The Tribunal failed to consider certain facts.”
Each ground contained detailed particulars that alleged the following errors were made:
a)The Tribunal failed to explain to Mrs Shao cl.457.223;
b)The Tribunal failed to ensure that Mrs Shao fully and completely understood the information the Tribunal would use in its decision;
c)The Tribunal failed to provide the information pursuant to s.441A of the Act; and
d)The Tribunal had not fairly and correctly considered the review application of Sundaze.
Submissions
The applicants appeared at the hearing self represented with the assistance of a Mandarin interpreter. Mrs Shao was appointed as the litigation guardian for her son, Yan Li Zhu, who was a minor. The applicants were represented by Mr Gian (Kevin) Ren, a director of Sundaze. There was no oral submissions made specifically to the applicants’ case as it was acknowledged that the outcome of their case was directly related to the success of the application of Sundaze as a sponsor.
Mr J A C Potts of Counsel, appeared for the respondent and filed written submissions. It was submitted that the criteria for the grant of a visa, so far as they are relevant to the present application, are those contained in sub-clause 457.223(4) of Schedule 2 of the Regulations, which provides:
“The applicant meets the requirements of this sub-clause if:
(a)The activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)The employer is:
(i) either:
(A) a pre-qualified business sponsor; or
(B) a standard business sponsor approved …
(c)The applicant is nominated … in relation to the activity by the employer …”
When a visa applicant does not meet the above criteria there is no discretion in the Tribunal to grant a visa: Makhu v Minister for Immigration & Multicultural & Indigenous Affairs per Mansfield J at [6]:
“The criteria for the grant of a visa specified in clause 457.223(4) of Schedule 2 of the Regulations has simply not been satisfied. There is in the circumstances no discretion in the Tribunal.”
It was submitted that there was no evidence that Sundaze was a pre-qualified business sponsor or a standard business sponsor. Nor was there any suggestion that Mrs Shao had any other employer who was qualified as a sponsor. In the circumstances, it was inevitable that her application would fail. Unless Sundaze succeeds in its application for judicial review of the Tribunal refusal to approve it as a business sponsor, the present application for review is futile. The Tribunal can only grant a sub-class 457 visa if, at the time of the decision, there is a business sponsor. This criteria will be unable to be satisfied if Sundaze’s judicial review application fails, therefore meaning that if the Court were to grant the present application the relief they seek, and remit the matter to the Tribunal, the applicants would inevitably fail in the Tribunal as they would not be able to satisfy the requirements of sub-clause 457.223(4). It is submitted that in such circumstances, even assuming the Tribunal’s decision is effected by judicial error, the Court ought not, in the exercise of its jurisdiction grant the applicants relief as to do so would be futile: Fusi v Minister for Immigration & Multicultural & Indigenous Affairs per Raphael FM at [6]-[7]. It was submitted that if Sundaze’s application fails, then this application will be refused on the threshold issue of futility.
The respondent’s Counsel provided written submissions on the aspects of denial of natural justice. However, I did not consider those issues as I had already decided the outcome of the Sundaze application which I had dismissed. Sundaze International Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs.
It was also submitted that it was not a proper ground for review, for the present applicants to complain that Sundaze’s application before the Tribunal was somehow infected with error. The Tribunal in this case had an obligation to be satisfied that the applicants satisfied the requirements of sub-clause 457.223(4). The Tribunal was not satisfied that the applicants had a business sponsor. That was the only matter to be considered. The Tribunal considered the material put forward by the applicant. It was not satisfied based on the material that there was a business sponsor.
Conclusion
As I have already indicated, I have made my decision in respect of the application made by Sundaze which was heard concurrently with this application. Sundaze’s application was dismissed and consequently it is irrelevant to consider this application any further as it cannot succeed. The application is dismissed.
I am satisfied that no order for costs should be made in this matter.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 25 November 2004
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