Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Patwe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 558 NAZIR AHMED ABDUL RAZAK PATWE AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N1556 OF 2003 STONE J 4 MAY 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1556 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: NAZIR AHMED ABDUL RAZAK PATWE
FIRST APPELLANT
YASMIN NAZIR AHMED PATWE
SECOND APPELLANT
HUMA NAZIR AHMED PATWE
THIRD APPELLANT
HURRAINE NAZIR AHMED PATWE
FOURTH APPELLANT
ARBAAZ NAZIR AHMED PATWE
FIFTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE OF ORDER: 4 MAY 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's cost of the appeal. 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 N1556 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: NAZIR AHMED ABDUL RAZAK PATWE
FIRST APPELLANT
YASMIN NAZIR AHMED PATWE
SECOND APPELLANT
HUMA NAZIR AHMED PATWE
THIRD APPELLANT
HURRAINE NAZIR AHMED PATWE
FOURTH APPELLANT
ARBAAZ NAZIR AHMED PATWE
FIFTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE: 4 MAY 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Migration Review Tribunal ('MRT'). 2 On 26 March 2002 the first appellant, to whom I shall refer as the appellant, applied for a Temporary Business Entry (Class UC) visa. The appellant's wife and three children lodged applications for visas of the same class as secondary applicants on 24 April 2002. The applications of the other appellants, his wife and children, depended on the appellant's claims. 3 There are two sub-classes of the Temporary Business Entry (Class UC) visa, namely 456 (Business Short Stay) and 457 (Business Long Stay); see Migration Regulations 1994 Schedule 1 Item 1223A(4). The appellants sought Business (Long Stay) visas as they were seeking to remain in Australia for longer than 3 months. 4 The criteria for the grant of a Business (Long Stay) visa are set out in Schedule 2 of the Migration Regulations and include a number of alternative grounds on which the requirements for grant of a visa may be met. The appellant's claims were based on one ground only, that of sponsorship by an Australian business under cl 457.223(4)(b)(i). This clause requires that the Australian business be a pre-qualified business sponsor or a standard business sponsor. The appellant nominated Australian Vanlines Pty Ltd ('AVL') as his sponsor. 5 The appellants visa applications were refused by a delegate of the Minister. They sought review of these decisions in the MRT which affirmed the delegate's decision on 29 January 2003. In its reasons for decision the MRT referred to a number of issues but the crucial part of its reasons is as follows: 'One necessary criterion for a Subclass 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or a standard business sponsor. However, the application for approval as a business sponsor made by Australian Vanlines Pty Ltd was refused in a separate decision. There is no application for review before the Tribunal in respect of the decision not to approve the proposed employer as a business sponsor. Such decisions are reviewable by the Tribunal but only if a valid application for review is made by the proposed employer (see sections 338 and 347 of the Act and regulation 4.02 of the Regulations). The time limit for seeking such a review appears to have expired. The Tribunal finds that the visa applicants' proposed employer has not been approved as a business sponsor. The Tribunal finds that the visa applicants do not meet the criteria for Subclass 456 visas, or the criteria for Subclass 457 visas. The Tribunal must therefore affirm the decisions under review.'
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