Zhao v Minister for Immigration

[2001] FCA 593

FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration
& Multicultural Affairs [2001] FCA 593

XIANGLI ZHAO and QINGSONG ZHOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N1362 of 2000

FINN, KATZ & CONTI JJ
21 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1362 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	XIANGLI ZHAO and QINGSONG ZHOU APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	FINN, KATZ & CONTI JJ
DATE OF ORDER:	21 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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	N1362 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	XIANGLI ZHAO and QINGSONG ZHOU APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	FINN, KATZ & CONTI JJ
DATE:	21 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellants in this matter being absent when the appeal was called on for hearing, we ordered that the appeal be dismissed: Federal Court Rules O 52 r 38A(1)(c).  We indicated, additionally, that the grounds of appeal relied upon in the notice of appeal were clearly unarguable and that we would provide brief reasons why we considered this to be so.  These are those reasons.

2. The appellants in this proceeding were unsuccessful applicants for a Temporary Business Entry (Class UC) subclass 457 Business (Long Stay) Visa, provision for which is made in Item 1223A of Schedule 1 of the Migration Regulations 1994 ("the Regulations"). These applications were refused because they failed to satisfy one of the criteria for the grant of such visa.

3. The relevant criteria (see subclause 457.233(6) of Schedule 2 of the Regulations) were that:

   "(a)     the applicant proposed to be employed in Australia by a person (in this sub clause called "the employer") who does not operate a business activity in Australia;  and
   (b)      that activity is the subject of an approved business nomination by the employer."

4. On 18 February 1999, the Minister's delegate refused to approve the appellants' employer's business nomination. That decision was taken under regulation 1.20H of Division 1.4A of the Regulations. In consequence the appellants' visa applications were - and had to be - refused.

5. The decision to refuse the business nomination was not a reviewable decision under the Migration Act 1958 (Cth) on the application of the appellants, though, since mid 1999, such a decision was reviewable on the application of a business sponsor: see regulation 4.02(4)(d), (5)(c) of Part 4 of the Regulations. The appellants' employer did not apply for such a review. In these circumstances the trial judge was clearly correct in determining that the Migration Review Tribunal committed no error of law in refusing the visa application. There were simply no approved business nominations.

6. The appellants have contended on this appeal that the trial judge committed various errors of law.  These errors are stated in the notice of appeal to be that (to paraphrase):

   (1) the visa should have been granted because the Regulations were satisfied;

   (2)       The Tribunal failed to review sponsorship and nomination;  and

   (3)       The Minister denied the Tribunal power to review sponsorship.

7. All of these alleged errors are manifestly unarguable for the reasons we have given, which reasons mirror those of the trial judge.  Nonetheless, as we indicated above, the appeal is dismissed under O 52 r 38A.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Katz and Conti.

Associate:

Dated:             21 May 2001

Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 May 2001
Date of Judgment:	21 May 2001