Wang v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 852

FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 852

TONG QING WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 695 of 2004

WILCOX J
17 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 695 of 2004

BETWEEN:	TONG QING WANG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	17 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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	N 695 of 2004

BETWEEN:	TONG QING WANG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	17 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of the Federal Magistrates Court (Barnes FM) given on 21 April 2004.  The Federal Magistrates Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’).

2. The appellant, Tong Qing Wang, applied for a Subclass 457 Business (Long Stay) visa. Clause 457.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) sets out criteria, to be satisfied at the time of decision, in respect of an application for a Business (Long Stay) visa. Subclause 457.223(1) requires the applicant to meet the requirements of one or another of the remaining subclauses in cl 457.223.

3. The appellant based his application on subcl (4), which requires nomination by an approved business sponsor.  At the time of the application, a company controlled by the appellant, Xin Cheng (Aust) Pty Ltd, had applied to the Department of Immigration and Multicultural and Indigenous Affairs for approval as a business sponsor.  However, that application was unsuccessful.  The company took the matter to the Tribunal but was also unsuccessful before the Tribunal.  The result was that, when the appellant's application for review came before the Tribunal, he was in the position of not having an approved business sponsor.  For that reason, the Tribunal affirmed the decision under review. 

4. The Tribunal’s decision was given on 7 May 2003.  The reasons of the Tribunal make it plain that the appellant's application failed because he lacked an approved business sponsor.  In para 18 of its reasons, the Tribunal said this:

   ‘The Tribunal finds that the visa applicant's proposed employer has not been approved as a business sponsor as required by subclause 457.223.  The visa applicant does not meet the criteria for a Subclass 456 visa, or the criteria for a Subclass 457 visa.  The Tribunal must affirm the decision under review.’

5. The appellant sought judicial review of this decision and the matter came before the Federal Magistrates Court on 21 April 2004. Despite the fact that the Tribunal's decision turned on the proper interpretation of the Regulations, the appellant had not obtained any legal advice about the correctness of the Tribunal's decision.

6. It appears from the reasons for decision of Barnes FM that the appellant made a number of complaints to her about the hearing before the Tribunal.  She dealt with each of those complaints in a manner which appears to me to be unexceptional.  To the extent that the same complaints have been repeated before me today, I respectfully adopt the Magistrate's reasons.  However, the critical point, as the Magistrate pointed out, was that the appellant did not have an approved business sponsor.  It would not have mattered whether or not his criticisms of the Tribunal hearing were justified; without an approved business sponsor, the application was doomed to failure.

7. When the matter came before me at a directions hearing on 3 June 2004, I pointed out to the appellant that the Magistrate’s decision had gone against him because of the Magistrate’s interpretation of the Regulations.  I suggested to the appellant that he should obtain legal advice about that interpretation.  I also suggested that he would be wise to have a lawyer represent him today, if the lawyer felt that there was any arguable case to be put to this Court.

8. Notwithstanding this advice, the appellant appears for himself again today. He told me he had not had enough time to obtain legal assistance. I do not accept that statement. The decision of the Tribunal was handed down thirteen months ago. It quite clearly indicated the critical effect of the Regulations. It should have been obvious to any person, certainly to an experienced business person, that it would be desirable to obtain legal advice. That obviousness could only have been reinforced by the decision of the Magistrate, which was given almost two months ago. It would not have taken a competent lawyer more than perhaps an hour to read the Tribunal's decision, the Magistrate's reasons and the relevant provisions of the Regulations. There would have been no justification for me to accede to an application, that was made by the appellant this morning, for an adjournment of the hearing for a period of five or six months, so that he could get together what he called ‘a lot of documentary material’.

9. During the course of discussion, I asked the appellant whether he agreed that he lacked an approved business sponsor.  He did agree with this.  That was the finding of the Tribunal and it seems to me to make his case unarguable.  Subclause 457.223(4) clearly requires that an applicant for a Business (Long Stay) visa be a person proposed to be employed in Australia by an employer who is an approved business sponsor.  That situation must be demonstrated to be so as at the date of the decision; in the present case, the date of the Tribunal's decision.  Once it is conceded there was no approved business sponsor at that time, that is the end of the case.

10. The appellant told me this morning of the effect of refusal of the visa on himself and his family.  They have been in Australia for a number of years.  The appellant told me that he and his wife have worked hard and have made a contribution to the Australian community.  I have no reason to doubt the truth of what he says.  He might well be able to continue to make a worthwhile contribution to Australia if he could stay here.  However, this is not a ground upon which the Court can provide relief to him.

11. The only question that the Court is entitled to consider is whether the Magistrate erred in rejecting the application for judicial review of the Tribunal's decision.  I think it is clear that the Magistrate did not err in taking that course.  Given the lack of an approved business sponsor, the Tribunal had no option but to affirm the decision of the delegate of the respondent.  The Magistrate recognised that this was the case.  She therefore rightly dismissed the application for review.  I have no alternative other than to dismiss the appeal from her decision. 

12. The order of the Court will be that the appeal is dismissed with costs.

13. I should have mentioned that the Chief Justice has given a direction that the appeal to this Court from the Federal Magistrates Court be heard by a single judge.  Consequently the decision I have announced is the decision of this Court.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             6 July 2004

The Appellant appeared in person.
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 June 2004
Date of Judgment:	17 June 2004