ZHAO v Minister for Immigration

[2015] FCCA 647

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHAO & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 647

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (class UC) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Migration Regulations 1994, Schedule 2 Pt 457

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

First Applicant: JINGGANG ZHAO

Second Applicant: JUNYAN LIU

Third Applicant: FANGNING ZHAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:  MIGRATION REVIEW TRIBUNAL

File Number: SYG 358 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms A. Lucchese
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 358 of 2015

JINGGANG ZHAO

First Applicant

JUNYAN LIU

Second Applicant

FANGNING ZHAO

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ put in the Court’s jurisdiction under s.476 of the Migration Act 1958 seeking a Constitutional writ in respect of a decision of the Tribunal on 12 January 2015, affirming a decision of the delegate not to grant the applicant a Temporary Business Entry (class UC) visa. The application and its return date identifies that the Court may hear or determine all interlocutory or final issues and may give directions for future conduct, other proceedings. The Court identified its concern that the application appeared doomed to failure for the reason of not disclosing any arguable error of law.

2. The applicant sought to identify that the proceeding was related to another matter SYG348 of 2015 and that the termination of that matter was interlinked with the determination of these proceedings.  The respondent did not accept that there was such a link.  I am satisfied that the link does not give rise to any arguable issue. 

3. The ground in the application is as follows:

   The Tribunal fell into jurisdictional error in the case of the SBS/Nom the subject of proceedings in this Court (SYG348/2015) and refused the applicants a grant of a visa on the basis of there being no approved nomination in accordance with criterion 457.223(4)(a) of the Migration regulations.

4. The applicants applied for the visa on 4 November 2013. The criteria for the subclass 457 visa is set out under part 457 of Schedule 2 of the Migration Regulations 1994. One of the criteria to be satisfied at the time of the decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative streams for the visa. One of those streams is contained in cl.457.223(4) which is set out as an attachment to the decision of the Tribunal. The Tribunal noted that specific claims had been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. The Tribunal noted that no claims had been made in respect of the alternative streams under cl.457.223.

5. The Tribunal noted that the delegate refused to grant the visa on 5 May 2014 on the basis that cl.457.223(4)(a) was not met because on 21 February 2014 the delegate refused the application of Cargo First Pty Ltd to nominate the position of sales and marketing manager in relation to the first named applicant. The applicants included a copy of the delegate’s decision record with the application for a review. The first named applicant appeared before the Tribunal on 9 October 2014 to give evidence and present arguments.

6. The first named applicant and the second named applicant are the owners of Cargo First Pty Ltd, and the first named applicant is the sole director. The Tribunal noted that it conducted the review of the decision to refuse the nomination and the decision to refuse the subclass 457 as well as the decision to refuse the applicants a subclass visa at joint hearings.

7. The Tribunal noted that the hearing was conducted with the assistance of an interpreter and noted that the applicants were represented by two migration agents.  The Tribunal noted that the issue in the present case is whether the primary visa applicant met the requirements of cl.457.223(4)(a).  The Tribunal noted that cl.457.223(4)(a) requires that there is an approved nomination for an occupation relating to the applicant by a standard business operator that has not ceased. 

8. The Tribunal was provided with a copy of the delegate’s decision that identified that the applicant was nominated by Cargo First Pty Ltd for the position of sales and marketing manager, and that nomination was refused by the delegate on 21 February 2014, and that on 12 January 2015 the Tribunal affirmed the decision to refuse the nomination and that it follows there was no approved nomination of the occupation in relation to the applicant.

9. The Tribunal noted that in those circumstances cl.457.223(4)(a) are not met, and it was in those circumstances that the Tribunal made the findings that the requirements for the standard business sponsor stream had not been met and that there has been no claims in respect of the other streams. There was no evidence before the Tribunal that the applicants would be able to satisfy specific criteria under those other streams.

10. The Tribunal concluded the applicants did not meet the criteria for the visa and affirmed the decision.  The assertion of error by reference to some other matter is not error in relation to the decision of the Tribunal in this matter.  There is no substance in the ground that has been identified.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

11. The applicant’s solicitor sought to have the matter adjourned for the purpose of awaiting the determination of proceedings SYG348 of 2015.  It is not appropriate to grant an adjournment in circumstances where the proceedings, on their face, are doomed to failure.  There is no utility in doing so, and it only increases the costs for the parties and utilises valuable Court time.  I am clearly satisfied the proceedings are doomed.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The application is summarily dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 March 2015