Xu v Minister for Immigration

[2007] FMCA 1677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1677

MIGRATION – Migration Review Tribunal – Subclass 457 Business Long Stay Visa – whether criteria met – whether jurisdictional error.

Migration Act 1958(Cth)(as amended), s.474
Migration Regulations 1994 Schedule 2 Part 457

Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: XIN HUA XU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: LNG40 of 2006

Judgment of: Lapthorn FM

Hearing date: 8 May 2007

Date of Last Submission: 8 May 2007

Delivered at: Newcastle

Delivered on: 5 October 2007

REPRESENTATION

Counsel for the Applicant: Ms Germov

Solicitors for the Applicant: Argyle Law

Counsel for the Respondents: Mr Livermore

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to read Minister for Immigration and Citizenship.

2. The application be dismissed.

3. The Applicant pay the Respondents’ Costs.

4. The parties have liberty to re-list the matter within 21 days for submissions as to the quantum of costs or to submit an agreed quantum.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

(P)LNG40 of 2006

XIN HUA XU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP  

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant who is a chef and originally from the Peoples Republic of China, applied to the First Respondent’s Department for a Business Long Stay Visa[1] so he may live in Hobart and work as the manager of a take away business known as Noodle House. This business is owned and operated by Grandwide Pty Ltd which had applied to be approved as a standard business sponsor. That approval was not granted by a delegate of the First Respondent and consequently on 31 May 2005 a delegate refused to grant the visa sought by the Applicant.

   [1] Subclass 457 Business Long Stay Visa

2. The Applicant sought a review of the Delegate’s decision in the Migration Review Tribunal who is the Second Respondent. The Tribunal affirmed the Delegate’s decision on 13 September 2006 on the basis that as the Company’s application for review had not been successful it was not an approved business sponsor and therefore the Applicant did not meet the criteria for the visa sought.

3. The Applicant asks this Court to quash the Tribunal’s decision and to remit the matter back to the Tribunal for reconsideration in accordance with the law. The decision by the Tribunal is a privative clause decision which is protected from review[2] unless there has been a jurisdictional error.[3] This matter was heard at the same time as the application by Grandwide Pty Ltd and the Applicant relied on substantially the same grounds as the company did in its application to this Court.

   [2] s474 Migration Act 1958 (Cth) (as amended)

   [3] Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476

4. In order to be successful in his application Mr Xu had to show that he was employed by an approved standard business sponsor and that the activity in which he was to be employed was the subject of an approved business.[4]

   [4] cl.457.223(4)(a) and (b)(i)(B)

5. It was conceded by counsel for both the Applicant and First Respondent that this application would stand or fall depending on the outcome of the application by Grandwide. I have today dismissed that application. Grandwide therefore is not an approved standard business sponsor. Accordingly the Applicant does not meet the necessary criteria for the granting of the visa application.

6. The Court notes that the Tribunal incorrectly concluded that the business nomination application had been withdrawn however that error does not affect the ultimate finding that as the company had not been approved as a business sponsor the Applicant did not meet the criteria for the subclass 457 visa. There was no error in fact or law in that finding and no jurisdictional error in the approach adopted by the Tribunal in its decision. I therefore dismiss the application.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Associate:  Helen Drysdale

Date:  5 October 2007