Moller v Minister for Immigration and Citizenship [2007] FCA 839

FEDERAL COURT OF AUSTRALIA

Moller v Minister for Immigration and Citizenship [2007] FCA 839

JAN CHRISTIAN MOLLER v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 440 OF 2007

COWDROY J

29 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 440 OF 2007

BETWEEN: JAN CHRISTIAN MOLLER

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE OF ORDER: 29 JUNE 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent in the sum of $ 4000. 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 NSD 440 OF 2007

BETWEEN: JAN CHRISTIAN MOLLER

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE: 29 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Smith delivered on 28 February 2007dismissing an application for judicial review of two decisions of the Migration Review Tribunal ('the Tribunal') of 5 September and 21 November 2005. The Tribunal had affirmed the decisions of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') to refuse the appellant's applications.

facts 2 On 26 March 2004 the appellant lodged an application on behalf of the business which he conducted, namely Electro Innovations, for approval as a business sponsor ('the sponsorship application') with the Department of Immigration and Multicultural Affairs ('the Department'). 'Electro Innovations' is a business name registered under the Business Names Act 2002 (NSW), and as such it has no separate legal personality to its proprietor. The sole proprietor is the appellant. 3 The Minister refused the sponsorship application on 8 May 2004. On 2 June 2004 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision of the Minister on 5 September 2005. By Application filed on 8 October 2005 the appellant sought judicial review of the Tribunal's decision in relation to the sponsorship application in the Federal Magistrates Court. 4 The appellant had also applied to the Department for a Class UC, subclass 457 Temporary Business (long stay) visa for himself and members of his family ('the visa application'). The visa application was refused by the Minister on 8 May 2004. The appellant applied to the Tribunal for review of that decision and on 21 November 2005 the Tribunal affirmed the Minister's decision on the ground that the appellant, as the primary visa applicant, did not have an approved business sponsor.The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision in respect of the visa application. 5 The application to the Federal Magistrates Court for review of both the Tribunal's decisions were heard concurrently by Smith FM. At that hearing, counsel for the appellant conceded that if Smith FM dismissed the challenge to the Tribunal's decision in respect of the sponsorship application, the challenge to the Tribunal's decision in respect of the visa application must also be dismissed since it was predicated upon the approval of 'Electro Innovations' as the business sponsor.