Liu v Minister for Immigration & Multicultural Affairs [2000] FCA 1639

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs [2000] FCA 1639

CHENG LIU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N793 of 2000 MADGWICK J 8 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N793 of 2000

BETWEEN: CHENG LIU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 8 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review of the decision of the Migration Review Tribunal of 26 June 2000 be dismissed pursuant to O 32 r 2 of the Federal Court Rules. 2. The applicant is to pay the respondent's costs on an indemnity basis.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N793 of 2000

BETWEEN: CHENG LIU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 8 NOVEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: Background 1 The applicant last entered Australia on 25 June 1998 on a visitors visa and subsequently on 25 May 1999, lodged an application for a Temporary Business Entry (Class UC) visa. He appears to hold a Dominican passport. At the same time, his migration agent lodged on behalf of Sealbond Ltd, apparently a Hong Kong company, a "Business sponsorship application" and a "Nomination by a business sponsor" (namely Sealbond Ltd) of the applicant's employment. 2 The applicant's visa application indicated that he was applying "as a person sponsored by a business outside Australia to establish or assist in establishing a business activity in Australia". The business sponsorship application by Sealbond Ltd included none of the records sought in the application, such as financial and annual reports, bank statements and audit reports. The form, including the nomination of the applicant by Sealbond Ltd, included no evidence as to the advertising of the position that the applicant was to hold, nor any detail as to why advertising was not required. 3 The applicant's visa application was dated 21 May 1999 and, as indicated earlier, was apparently lodged on 25 May 1999. His then apparently extant visa was to expire on 10 June 1999 and it appears that he had applied for that visa on 20 February 1999. His own visa application was also, for unexplained purposes, lamentably lacking in any detail that might elucidate or assist to understand his application. 4 On 5 August 1999, the applicant was notified by a delegate of the respondent Minister of two decisions. The first was that, unsurprisingly, the nomination of a business activity - namely the applicant's employment on behalf of Sealbond Ltd - had been refused. The second decision was, equally unsurprisingly, that the applicant's visa application had been refused. 5 On 1 September 1999, the applicant lodged an application for a review of the decision to refuse his visa application with the Migration Review Tribunal ("MRT"). The application indicated that the applicant proposed to send documents to support his contention that Sealbond Ltd was a "standard business sponsor". No such documents were ever sent. 6 On 3 September 1999, the MRT wrote to the applicant acknowledging receipt of his application and requiring that any documents be provided to the Tribunal by 24 September 1999. On 5 April 2000, the MRT wrote to the applicant in accordance with s 359A of the Migration Act 1958 (Cth), inviting the applicant to comment on information that the MRT had, that would be the reason or part of the reason for affirming the decision under review. The nub of the information was that there was no approved business nomination in favour of the applicant and that without it he could not meet the criteria for the visa for which he had applied. The applicant was given until 10 May 2000 to respond to this invitation. 7 On 4 May 2000, the MRT received a letter from the applicant's adviser stating without explanation that the applicant needed more time to respond to the invitation. No specific additional period of time was specified. The MRT wrote to the applicant on 5 May 2000 inviting him to appear before the Tribunal to give evidence and present arguments on 26 May 2000. The applicant neither attended the hearing nor apparently was the MRT contacted about his absence.