Zhou v Minister for Immigration & Multicultural Affairs

[2000] FCA 1833

FEDERAL COURT OF AUSTRALIA

Zhou v Minister for Immigration & Multicultural Affairs [2000] FCA 1833

MIGRATION – review of decision of Migration Review Tribunal not to grant applicants subclass 457 Business (Long Stay) visas – error of law – whether proposed activity of employer of applicants the subject of an approved business nomination – whether decision to refuse nomination reviewable – whether subclass of visas could be applied for from within Australia

Migration Act 1958 (Cth) s 476
Migration Regulations 1994 regs 1.20G, 1.20H, 4.02, Sch 1 Item 1223A, Sch 2 cl 457.223

QING SONG ZHOU & XIANG LI ZHAO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 946 of 2000

BRANSON J
SYDNEY
5 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 946 of 2000

BETWEEN:

QING SONG ZHOU
FIRST APPLICANT

XIANG LI ZHAO
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

5 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The decisions of the Migration Review Tribunal be affirmed.

2.The applicants pay the respondent’s reasonable costs (in particular, the issue of the costs of the filing of two volumes of documents is a matter I refer to the Taxing Officer).

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	N 946 of 2000

BETWEEN:

QING SONG ZHOU
FIRST APPLICANT

XIANG LI ZHAO
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	5 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of two decisions of the Migration Review Tribunal whereby the Tribunal affirmed decisions that Mr Zhou and Mrs Zhao are not entitled to the grant of Temporary Business Entry (Class UC) visas. Although on Form 56, the application does not, in the section of the form designed for the specification of grounds of appeal, specify any ground prescribed by s 476 of the Migration Act 1958 (Cth) (“the Act”). The words placed by the applicants on this section of the form read:

   “To have the visa application reviewed by Federal Court 457 visa should be granted.”

2. On 12 October 2000 at a directions hearing the Registrar of the Court by consent ordered the applicants to file and serve any amended application or any evidence upon which they proposed to rely on or before 23 November 2000 but no amended application was in fact served by the applicants.  I consider it appropriate to interpolate that at the same directions hearing the applicants told the Registrar that they expected to be represented by a lawyer today and that they understood that the hearing would proceed today whether or not they had legal representation.  Mrs Zhao, to whom I gave leave to speak both on her own behalf and on behalf of her husband, Mr Zhou, has told me today that the applicants have taken legal advice.  However, the applicants have appeared in person as Mrs Zhao considered that she was sufficiently familiar with the matter to argue the case herself.

3. Near the close of today’s hearing, Mrs Zhao made an application for an adjournment of the hearing to allow the applicants to obtain legal advice.  This application, which was opposed by the Minister, she subsequently withdrew requesting that I deal with the matter on the submissions before me today.

4. The applicants have contended that:

   “The decision to refuse to grant 457 visa was wrong and not fair for applicant.”

5. In the circumstances, I propose to treat the application as an application for review of the decision of the Tribunal on the grounds specified in s 476(1)(e) of the Act, namely that the decision of the Tribunal involved an error of law being an error involving an incorrect interpretation of the applicable law.

6. In my view, it is plain that the applications must fail. Item 1223A of Sch 1 of the Migration Regulations 1994 (“the Regulations”) provides for Temporary Business Entry (Class UC) visas. Subclass 457 visas are Business (Long Stay) visas (Item 1223A(4)). The prescribed criteria for subclass 457 visas are set out in Pt 457 of Sch 2 of the Regulations. Clause 457.223(1) provides that the applicant must meet the requirements of one of subclauses 2 to 9. Each of those subclauses deals with a different category of subclass 457 visas.

7. The category of subclass 457 visa sought by the applicants was that involving sponsorship by an overseas business. Subclause 457.223(6) of Sch 2 of the Regulations relevantly provides as follows:

   “The applicant meets the requirements of this subclause if:

   (a)the applicant proposes to be employed in Australia by a person (in this subclause 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.”

8. Division 1.4A of the Regulations is concerned with “Temporary Business Entry: Sponsorship and Nomination”.   Regulation 1.20G provides for the nomination of business activities and reg 1.20H provides that:

   “Subject to this Regulation, the Minister may, by instrument in writing, approve, or refuse to approve, the nomination of an activity in which an individual is proposed to be employed in Australia.”

9. On 28 January 1998 a director in Xinjiang Traffic Development Corporation Limited signed a business sponsorship application by which the company sought to sponsor two temporary business entrants.  Correspondence from the company’s migration agent confirmed that those entrants were intended to be the applicants.  On 18 February 1999 a delegate of the respondent refused to approve the nomination of the business activity proposed by Xinjiang Traffic Development Corporation Limited.  Each of the applicants was refused a subclass 457 visa on the basis that the proposed activity of their employer was not the subject of an approved business nomination by their employer.

10. The refusal of the Minister by his delegate to approve the nomination of the activity in which the applicants were proposed to be employed in Australia was not subject to statutory review. Visas in the subclass 457 Business (Long Stay) were first available on 1 August 1996. However, legislative amendment to enable review of certain sponsorship and nomination decisions associated with the new class of visa did not take effect until mid 1999 (see Pt 4 of the Regulations and in particular reg 4.02). For this reason, the Minister established a form of administrative review by exercising his powers of delegation.

11. The delegations made by him, like the later legislative scheme established by Pt 4 of the Regulations, did not allow for a review of a decision to refuse an application for business nomination by a company that is not a pre-qualified business sponsor or a standard business sponsor (see reg 1.20B for the definition of “pre-qualified business sponsor” and “standard business sponsor”). The relevant instrument of delegation is contained at pp 489-490 in the book of documents filed by the respondent. The exercise of the powers delegated by the instrument was governed by a letter from the Minister to the delegate. An example of such a letter dated 12 November 1996 appears at p 487 of the book of documents filed by the respondent. So far as decisions to refuse to approve nominations of business activities are concerned, the letter restricts the delegate’s power of review to decisions on nominations by pre-qualified business sponsors and standard business sponsors.

12. In any event, Xinjiang Traffic Development Corporation Limited neither sought nor obtained review of the decision of the delegate which refused to approve the relevant proposed business activity.  In the circumstances neither the delegate of the Minister nor the Tribunal could lawfully have granted to the applicants a subclass 457 visa.

13. Before the Tribunal, the applicants also placed reliance on subcl 457.223(7) which provides for the independent executive category of subclass 457 visas. Their original application did not refer to this subclass of visa. In any event, the visa in this category can only be applied for from outside Australia. The applicants made their respective visa applications from inside Australia. Their reliance on subcl 457.223(7) necessarily had to fail (Item 1223A(3)(ab)(iii) and (iv) of Sch 1 to the Regulations).

14. The decisions of the Tribunal must be affirmed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:  13 December 2000

The applicants appeared in person.
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 December 2000
Date of Judgment:	5 December 2000