Wang v Minister for Immigration & Multicultural Affairs

[2000] FCA 1938

FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1938

YAN WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N783 of 2000

MADGWICK J
7 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N783 of 2000

BETWEEN:	YAN WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	7 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for review of the decision of the Migration Review Tribunal be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N783 of 2000

BETWEEN:	YAN WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application to review the decision of the Migration Review Tribunal (“MRT”) which affirmed the decision of a delegate of the respondent Minister to refuse an application by the applicant for what might colloquially be called a business entry visa.  The applicant appears in person.  He has filed no written submissions.  The grounds of the application are that the:

   “Tribunal made a unreasonable decision.  They did not allow I explain anything.  The officer though[t] my case was hopeless: The ground under which the visa application was sponsorship by an overseas business.”

2. The applicant sought today a further adjournment of the proceedings to enable him to get legal representation.  He said he was hopeful that some money might come from China to assist him in that regard, by the end of the month.  He has had plenty of time.  It was not shown to the Court that he would, in fact, get legal representation and, further, as will appear, it seems to me that there is no reasonable prospect of legal representation assisting him.

3. The appellant is a citizen of the People's Republic of China and an adult.  On 24 December 1997, he applied for a Temporary Business Entry (Class UC) visa.  He sought to stay in Australia for a period of four years.  The basis of his application was that he was sponsored by a business, based in Beijing, known as “Beijing Feng Hua Wa Li Machinery Plant”.  The claim was that the applicant and another person would establish and manage a food processing company in Australia.  The intended business sponsor also lodged a sponsorship nomination application at about the same time as the applicant lodged his application for the visa.  On or about 3 February 1999, the respondent's delegate refused both the application for the visa and the sponsorship nomination application.  The applicant then sought an internal review within the respondent's department by its "Migration Internal Review Office" which was unsuccessful. 

4. The applicant then approached what was the Immigration Review Tribunal, subsequently called the Migration Review Tribunal.  The MRT affirmed the decision of the relevant delegate of the respondent Minister.  The MRT pointed out that the ground under which the visa application appears to have been made is "sponsorship by an overseas business" and that there was no material before the MRT to suggest that the applicant met any of the other grounds upon which the visa of the sub-class applied for could be granted.  The MRT further explained that decisions to approve nominations of business activities by "overseas businesses" are not reviewable by the MRT and explained that there is reflected in the Migration Regulations a clear policy intention that, whereas a "business sponsor", which must be already lawfully operating a business in Australia, may seek a review of an unfavourable sponsorship decision from the MRT, an "overseas business" may not.  Such an overseas business is, by definition, not yet operating a business in Australia.  The MRT also stated (although I have not examined the matter) “[t]his is consistent with standing rules in relation to other kinds of visas".  As the undisputed evidence was that the applicant was not the subject of an approved business nomination by his employer, he could not meet one of the prescribed criteria for the visa for which he has applied and the MRT took the view that it had no choice but to affirm the decision under review. 

5. Counsel for the respondent, in his usual helpful way, has again explained the particular paragraphs and sub-clauses of the Migration Regulations which indicate that the MRT’s approach was, as it seems to me, undoubtedly correct.  It follows that the application before the Court must fail.

6. The application is dismissed.  The applicant is to pay the respondent's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            15 January 2001

Applicant appeared in person.
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 December 2000
Date of Judgment:	7 December 2000