Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 748

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 748 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 31 Migration Regulations 1994 (Cth) sch 2 cl 457.223(4) Happy Spring Australia Pty Ltd [2003] MRTA 7947 cited Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited Patwe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 558 cited LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 473 of 2004 SACKVILLE J SYDNEY 11 JUNE 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 473 OF 2004

BETWEEN: XIAO FEI LIU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 11 JUNE 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be 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 N 473 OF 2004

BETWEEN: XIAO FEI LIU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 11 JUNE 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Migration Review Tribunal ('MRT') made on 12 March 2004. The MRT affirmed a decision of the delegate of the respondent ('Minister') refusing the applicant a Temporary Business Entry (Class UC) visa. The only ground specified in the application is that the applicant's employer, Happy Spring Australia Pty Ltd ('Happy Spring') should be approved as a business sponsor. 2 The applicant is a citizen of the People's Republic of China. On 14 October 2002, she applied, together with her husband and child, for a temporary Business Entry (Class UC) visa. On 2 November 2002, the delegate refused to grant the visas. 3 The applicant, her husband and child sought review before the MRT. The MRT noted that Class UC contained two subclasses, namely Subclass 456 (Business (short stay)) and Subclass 457 (Business (long stay)): see Migration Regulations 1994 (Cth) (Migration Regulations), Sch 1, Pt 2, cl 1223A(4). Subclass 456 was not relevant, since the visa applicants were seeking visas for longer than three months. 4 At the relevant time, Subclass 457 visas could be obtained on a number of grounds. The ground on which the visa applications were made was sponsorship by a business operating in Australia. No claim was made that the visa applicant satisfied any of the other grounds upon which Subclass 457 visas could be granted. The MRT found that the material before it did not suggest that the visa applicants could meet any of the other grounds. 5 The MRT pointed out that a criterion must be satisfied for the grant of a Subclass 457 visa on the basis of sponsorship by a business operating in Australia is that the proposed employer is approved as a 'pre qualified business sponsor' or as a 'standard business sponsor'. The visa applicants had relied on an application for approval as a business sponsor made by Happy Spring Australia Pty Ltd ('Happy Spring'). However, that application had been refused by a delegate and the decision had been affirmed on review by the MRT on 24 November 2003: see Happy Spring Australia Pty Ltd [2003] MRTA 7947. 6 The MRT recorded that it had sent the visa applicants an invitation on 27 November 2003 to comment on the fact that Happy Spring had failed to gain approval as a standard business sponsor. The letter pointed out that by reason of the MRT's decision in relation to Happy Spring, the MRT was unable to find that the applicant satisfied the requirements of cl 457.223(4)(a) of Sch 2 to the Migration Regulations. In response to that invitation, the applicant sent a letter stating her view that Happy Spring was a qualified business sponsor and had made 'good progress [in] a short time'. However, despite the applicant apparently being represented by a migration agent, no challenge was made to the MRT's decision regarding Happy Spring's application. 7 The MRT held a hearing on 19 February 2004 on the challenge to the delegate's refusal to grant the applicant a visa, at which the applicant gave evidence, assisted by an interpreter. According to the MRT, she confirmed that she did not have a current approved business sponsor or current sponsorship application. The applicant claimed that she did not know she could change sponsor, notwithstanding that she had engaged a registered migration agent in the past. She also stated that she wanted only a temporary visa and was not looking for permanent residency. 8 The MRT found that the visa applicant's proposed employer had not been approved as a business sponsor as required by cl 457.223 of the Migration Regulations. Since the visa applicants did not meet the criteria for the grant of a Subclass 457 visa, the MRT affirmed the delegate's decision.