Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221

FEDERAL COURT OF AUSTRALIA

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 GURUCHARAN SINGH MAKHU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 504 of 2003 MANSFIELD J 27 FEBRUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 504 OF 2003

BETWEEN: GURUCHARAN SINGH MAKHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 27 FEBRUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 504 OF 2003

BETWEEN: GURUCHARAN SINGH MAKHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 27 FEBRUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 This is an application under s 39B of the Judiciary Act 1993 (Cth) for prerogative orders in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 14 April 2003. Principally the application is for an order quashing the decision of the Tribunal. It is common ground that to succeed on the application the applicant must demonstrate jurisdictional error on the part of the Tribunal: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. 2 The applicant is a national of India, who arrived in Australia on a student visa on 7 April 1997. On 31 August 2001 he applied for a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa. A delegate of the respondent rejected his application for the visa on 25 October 2001. The Tribunal affirmed that decision. 3 Section 31 of the Migration Act 1958 (Cth) (the Act) provides for the prescription of various classes of visa and for the criteria for the grant of a particular class of visa. The prescribed criteria for the grant of the visa, so far as relevant to the present proceedings, are those contained in cl 457.223(4) of Sch 2 to the Migration Regulations 1994 (Cth) which relevantly provided: 'The applicant meets the requirements of this subclause if: … (b) the employer is: (i) a pre-qualified business sponsor; or (ii) a standard business sponsor; and (c) the applicant is nominated … in relation to the activity by the employer; and …' Clause 457.223(4)(b) was replaced by cl 3 and Sch 2 Pt 3 Item [2331] of the Migration Amendment Regulations 2002 (No 10) (Statutory Rules 2002 No 348), but the change only applied to applications for a visa made after 1 March 2003; see reg 4(2) of that amendment. 4 In his application for the visa the applicant had identified his proposed employer, but it appears that the employer had not provided the nomination required and the employer was not a business sponsor proved under the Regulations. On 11 September 2001 an officer of the respondent apparently wrote to the applicant pointing out those deficiencies in his application and inviting him to address them. He now deposes, by affidavit of 15 December 2003, that he did not receive that letter. For present purposes it is not necessary to resolve that issue. He was notified of the delegate's decision to reject his application for the visa and made application to the Tribunal for the review of that decision. The Tribunal was to review the decision on its merits: s 349 of the Act.