Qi v Minister for Immigration & Multicultural Affairs [2002] FCA 326

FEDERAL COURT OF AUSTRALIA

Qi v Minister for Immigration & Multicultural Affairs [2002] FCA 326

MIGRATION - application for review of decision not to grant business entry visa – whether Tribunal erred – whether privative clause applies

Migration Act 1958 (Cth) s 474 WEI WEI QI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1603 OF 2001 TAMBERLIN J SYDNEY 18 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1603 OF 2001

BETWEEN: WEI WEI QI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN

DATE OF ORDER: 18 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's 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 N1603 OF 2001

BETWEEN: WEI WEI QI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN

DATE: 18 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of a decision made by the Migration Review Tribunal ("the Tribunal") on 12 November 2001 which affirmed a decision under review that the applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa. The applicant is a national of the People's Republic of China born on 25 October 1955. He lodged an application for internal review of the Minister's decision in March 1999. The background to the matter is set out in the reasons for decision under review and it is not necessary for me to repeat them here. 2 The essential reasoning for the decision of the Tribunal is set out in pars 33 to 37 of the reasons for decision. Essentially the Tribunal made findings that, while the applicant may have conducted a business activity as a principal, it was not apparent how the business was of benefit to Australia. The Tribunal approached the matter on the basis of the criteria set out in subclause 457 of Schedule 2 to the Migration Regulations 1994. Included in those provisions is a definition of the meaning of 'benefit to Australia' which is a criterion that the applicant had to satisfy. 3 The Tribunal found that the activities of the applicant were not sufficiently substantial to amount to the creation or maintenance of employment for Australian citizens or Australian permanent residents. This was one of a number of factors which needed to be proved by the applicant. In particular the Tribunal found that the activities of the applicant using contractors were not sufficiently substantial to amount to the creation or maintenance of employment for Australian citizens or permanent Australian residents. 4 The question as to what amounts to a contribution within the meaning of the regulation is one of fact and degree. It is a matter for the Tribunal and is not one on which it is appropriate for this Court to differ on an application for judicial review. 5 The Tribunal also reached the conclusion that there was no evidence that the persons employed were Australian citizens or Australian permanent residents. The applicant says that he did employ people and that it does not matter whether they are contractors or employees, the essential point is that work is being provided for Australian residents. 6 The Tribunal also found that there was nothing before it to show that the applicant provided any training to anyone at any stage of his operations or that he was introducing new or improved technology or business skills. 7 In the absence of either of these matters having been established, the application was bound to fail before the Tribunal. Accordingly, the Tribunal reasoned in its conclusion that the visa applicant did not meet one of the essential criteria for subclause 457.223(7) of the Migration Regulations 1994. The applicant did not contend that he meets the criteria for a visa sought on any other ground. The reasoning of the Tribunal is succinct and does not describe the details of the way in which the conclusion was reached by it. However, because the questions involved are questions of fact and degree, I am not persuaded that the conclusion reached was not available to the decision-maker. 8 Before me, the applicant has pointed out that his case is essentially that he came to Australia to carry on a business. His claim was that he borrowed a very substantial amount of money, which he brought into Australia to register a company and that he has had considerable difficulty with the Australian Taxation Office in obtaining a tax file number. This has had an effect on the setting up of his business by him. The applicant has difficulty in understanding why it is that if a person comes to Australia and is prepared to pay tax and has indeed paid tax, and wishes to carry on business here, that he should not be granted a visa. 9 The reason is that the laws of Australia have restrictions in relation to immigration into this country and it is necessary to satisfy the criteria laid down in the legislation. It is not sufficient that a person should come to Australia simply wanting to carry on business here and having a substantial amount of money. The criteria involved must be satisfied and I am not persuaded that there has been any error of law or principle in the decision of the Tribunal which would warrant the setting aside of the decision which has been made by it. 10 I can understand the difficulty which the applicant has in accepting that there has been a non-compliance with the requirements of the legislation but nevertheless, they are the provisions which had to be applied by the Tribunal and indeed by this Court. 11 Reference has been made to section 474 which is the new privative clause introduced into the Migration Act 1958 (Cth). It is not necessary in the circumstances of this case to examine those provisions and I make no comment as to their application in relation to this particular case because I am not satisfied that the ground has been made out for that provision to be necessarily invoked in these proceedings. 12 Accordingly, for these reasons the order of the Court is that the application should be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.