Yang v Minister for Immigration - [2005] FMCA 625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YANG v MINISTER FOR IMMIGRATION

[2005] FMCA 625

MIGRATION – Business visa – whether error by Migration Review Tribunal – supplier – dictionary definition for purposes of Regulation 457.223(8) of Migration Regulations.

Migration Act 1958 (Cth)
Migration Regulations 1994

Yang v Minister for Immigration & Multicultural &Indigenous Affairs (2003) FCA 1524
NABE vMIMIA (No 2) [2004] FCAFC 263
NADR vMinister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167
Cozens v Brutus [1973] AC 653
Coleman v Power (2004) 209 ALR 182

Applicant:

TAO YANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 709 of 2004

Judgment of:

McInnis FM

Hearing date:

27 April 2005

Delivered at:

Melbourne

Delivered on:

13 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson

Solicitors for the Applicant:

Haag Walker Lawyers

Counsel for the Respondent:

Mr S Hay

Solicitors for the Respondent:

Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 709 of 2004

TAO YANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this application the applicant, who is a citizen of China, relies upon an amended application filed 12 April 2005 seeking review of a decision of the Migration Review Tribunal (the MRT) which had affirmed a decision of a delegate of the Minister refusing the grant of a business visa.
The applicant had applied for a temporary business entry (class UC) visa on 21 October 2002. On 14 May 2003 a delegate of the respondent refused to grant the applicant the visa. That refusal, in turn, was the subject of an application to the MRT made by the applicant on 10 June 2003. The MRT affirmed the delegate's decision to refuse to grant the applicant a business visa on 30 June 2003 (the first MRT decision).
On 18 August 2004 his Honour Marshall J of the Federal Court set aside the first MRT's decision and did so by a decision made on 30 June 2003 (Yang v Minister for Immigration & Multicultural &Indigenous Affairs (2003) FCA 1524) Marshall J determined that the matter should be referred to a differently constituted MRT to review the matter according to law. In his reasons for judgment his Honour sets out relevant facts, which for the sake of convenience I reproduce below as it sets out what I regard as an accurate summary of the facts
“3 The applicant is a citizen of the People's Republic of China. He first entered Australia on 17 February 1999 on a Short Stay (Visitor) (Class TR) Visa, Subclass 676 (Tourist (Short Stay)) and departed Australia on 6 March 1999. Between 4 August 1999 and 14 August 1999 he visited Australia on a second Subclass 676 Visa. On 14 January 2000 the applicant entered Australia on a Temporary Business Entry (Class UC) Visa, Subclass 456 (Business (Short Stay)), which expired on 14 February 2000. On 10 February 2000, the applicant applied for a Temporary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yang v Minister for Immigration

Details

AGLC: Yang v Minister for Immigration [2005] FMCA 625
Case: [2005] FMCA 625
Decision Date: 13 May 2005

CaseChat Overview and Summary

This case involved an application by Tao Yang, a citizen of China, for a temporary business entry (class UC) visa. The application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, and the refusal was affirmed by the Migration Review Tribunal (MRT). The applicant sought judicial review of the MRT's decision in the Federal Magistrates Court. The legal issues revolved around the interpretation of the term "supplier of services" and the requirements for a business visa under the Migration Regulations. The applicant argued that the MRT erred in its understanding of his role, misconstrued the regulation, and failed to consider the future intent of his activities.

The court examined whether the MRT misconstrued the basis of the applicant's claim, misinterpreted the term "supplier of services," or placed an incorrect gloss on the regulation. The court found that the MRT properly considered the applicant's role and the nature of the organisation he represented, and concluded that the organisation was not a supplier of services in the context of the regulation. The court also found that the MRT correctly applied the term "supplier" and did not improperly conflate the applicant's activities in Australia with the services to be provided in China. Furthermore, the court determined that the MRT did not err by focusing on the applicant's past performance instead of his future plans. Consequently, the court dismissed the application, holding that the MRT's decision was not affected by jurisdictional error.

Orders