Haroon v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 837

FEDERAL COURT OF AUSTRALIA

Haroon v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 837 MOHAMMED HAROON v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 559 of 2003 MOORE J SYDNEY 8 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 559 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMMED HAROON

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 8 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 N 559 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMMED HAROON

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 8 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of Driver FM of 23 April 2003, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the appellant a Business Skills (Residence) (Class BH) subclass 845 visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant a national of Fiji. When making its decision, the Tribunal had before it the Department's file and the Department's decision record. The appellant and his wife gave oral evidence to the Tribunal on 18 July 2002, and additional evidence concerning the appellant's business was provided to the Tribunal. 3 Regulations made under the Act establish the criteria for the grant of a Business Skills (Residence) (Class BH) subclass 845 visa. According to 845.222 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"): (1) The applicant's score on the business skills pointes test is not less than the number of points that is specified for the purposes of this subclause by Gazette Notice. (2) For the purposes of subclause (1): a. An applicant's score on the business skills points test is the sum of the applicant's scores under: i. Division 1.4 of Schedule 7; and ii. Parts 2, 3 and 4 of that Schedule; … The Gazette Notice referred to in subclause (1) specifies a total of 105 points. 4 Item 7170 in Division 1.4 of Schedule 7 of the Regulations (which directly related to subclass 845) provides that: Throughout a period of 12 months immediately preceding the making of the application, the main business or main businesses of the applicant or that of the applicant and applicant's spouse: (a) employed not less than 3 full-time employees (or a number of part-time employees working an equivalent number of hours) each of whom: i. is not the applicant or member of the family unit of the applicant; and ii. is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; and (b) either: i. had a turnover of not less than AUD200,000; or ii. exported goods or services of a value of not less than AUD100,000.