Zhao v Minister for Immigration & Multicultural Affairs [2000] 1523

FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration & Multicultural Affairs

[2000] FCA 1523 IMMIGRATION – application for Business (Long Stay), Subclass 457 visa – criteria for visa includes approved business nomination by applicant's employer – business nomination not approved – evidence of further business nomination before the Migration Review Tribunal – whether Tribunal erred in not postponing decision until further nomination determined.

Migration Act 1958 (Cth). Migration Regulations, reg 1.20B, 1.20D, 1.20G, 1.20H; Sch 1, Item 1223A; Sch 2, cl 457.22.

HUA ZHAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 814 of 2000 SACKVILLE J SYDNEY 27 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 814 OF 2000

BETWEEN: HUA ZHAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 27 OCTOBER 2000

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 814 OF 2000

BETWEEN: HUA ZHAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 27 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Migration Review Tribunal ("MRT"), given on 30 June 2000. The MRT affirmed a decision of a delegate of the respondent ("the Minister") that the applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa or any other sub-class of visa in this class. 2 The applicant is a citizen of the People's Republic of China. On 7 August 1998, he applied for a visa to enable him to stay in Australia for a period of two years. The application was made on Form 1066 which was appropriate for an application for a Business (Long-Stay), Subclass 457 visa. The application form indicated that the applicant was a person sponsored by a business outside Australia in order to establish or assist in establishing a business activity in Australia. At the time the application was made the applicant held an Executive (Sub-class 413) visa which was due to expire on 31 August 1998.

THE LEGISLATIVE FRAMEWORK 3 At the material times, cl 457 of Schedule 2 to the Migration Regulations set out the criteria to be satisfied by an applicant for a Temporary Business Entry (Class UC) visa, sub-class Business (Long Stay): see Migration Regulations, Schedule 1, Item 1223A. Clause 457.22 specified criteria that had to be satisfied by the applicant at the time of the decision. Sub-clause 457.223(1) provided that the applicant, relevantly, had to meet the requirements of sub-clause (4), (5) or (6). 4 Sub-clauses 457.223 (4), (5) and (6) provided as follows: "(4) The applicant meets the requirements of this subclause if: (a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called "the employer") is a key activity; and (b) that activity is the subject of an approved business nomination by the employer;… … (5) The applicant meets the requirements of this subclause if: (a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called "the employer") is not a key activity; and (b) that activity is the subject of an approved business nomination by the employer;… … (6) The applicant meets the requirements of this subclause if: (a) the applicant proposes to be employed in Australia by a person (in this subclause called "the employer") who does not operate a business activity in Australia; and (b) that activity is the subject of an approved business nomination by the employer; …". 5 The expression "key activity" was defined to mean an activity essential to the business activities of the employer and which required specialist or professional skills: cl 457.111(1), reg 1.20B. 6 The expression "approved business nomination" was defined to mean a nomination approved under reg 1.20H: cl 457.111(1). Regulation 1.20H(1) empowered the Minister to approve or refuse to approve the nomination of an activity in which an individual was proposed to be employed in Australia. Subject to an immaterial qualification, reg 1.20H(2) provided that the Minister had to approve the nomination of an activity that was made in accordance with reg 1.20G. 7 Regulation 1.20G(1) was as follows: "1.20G(1) A person who: (a) … ; or (b) is a pre-qualified business sponsor; or (c) is a standard business sponsor; or (d) does not operate a business in Australia but: (i) has given undertakings in accordance with approved form 1067; and (ii) is a person whom the Minister is satisfied (apart from not operating a business in Australia) would, on application, be likely to be approved as a standard business sponsor; may nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia". 8 Regulation 1.20D empowered the Minister to approve or reject an application for approval as a "pre-qualified business sponsor" or as a "standard business sponsor". In order to approve such an application, the Minister had to be satisfied, inter alia, that the applicant would introduce new technology or business skills to Australia and that the applicant had a demonstrated commitment to training Australians in its business operations: reg 1.20D(2)(c).

THE DELEGATE'S DECISION 9 The delegate proceeded on the basis stated in the application form, namely that the applicant was to be employed by an employer who did not operate a business activity in Australia. In substance, the delegate reasoned as follows: · The business nomination on which the applicant relied had been made on 7 August 1998 by Shanghai Qichang Materials Trade Co ("Qichang") as the applicant's sponsor. Qichang had nominated the position to be filled as Manager, located at Parramatta. · Qichang could not satisfy the requirements of reg 1.20D, which governed approval as a "standard business sponsor". This was because Qichang could not demonstrate that it would introduce new technology or business skills into Australia or otherwise comply with the requirements of reg 1.20D(2)(c). · It followed that Qichang was not likely to be approved as a "standard business sponsor". As a person operating a business outside Australia, Qichang could nominate an activity only if it was a person whom the Minister was satisfied would be likely to be approved as a standard business sponsor: reg 1.20G(1)(d). Qichang's business nomination therefore could not be approved. · Accordingly, the applicant had not satisfied the requirements of cl 457.223(6)(b), in that the proposed activity was not and could not be the subject of an approved business nomination by the applicant's employer. 10 The applicant subsequently applied for review of the decision to the Migration Internal Review Office, which affirmed the decision on 19 April 1999. The applicant then applied for review to the MRT.

proceedings before the MRT 11 On 6 April 2000, the MRT advised the applicant in writing that it was required, pursuant to s 359A of the Migration Act 1958 (Cth) ("Migration Act"), to provide particulars of any information that the MRT considered would be the reason, or part of the reason, for affirming the decision under review. In the letter, the MRT gave the following particulars: "This information discloses that a decision was made on 26 February 1999 not to approve the business nomination made by Shanghai Qichang Materials Trade Co. A criterion for the visa that you had applied for is that it relates to an activity that 'is the subject of an approved business nomination by the employer'. Without there being an approved business nomination, the visa criteria cannot be met. The business nomination decision is not reviewable as it was a nomination made by an 'overseas business'. The applicant was invited to comment. 12 On 27 April 2000, the applicant's agent responded. The response, although asserting that "the Company" (presumably Qichang) had a commitment to comprehensive training programs, did not address directly the difficulties raised by the MRT. No mention was made in the letter of any nomination by a company other than Qichang. 13 The MRT conducted a hearing on 9 June 2000. A transcript of the hearing was not in evidence, but the so-called Green Book provided to the Court by the Minister included a "hearing record", which incorporates a summary of the hearing conducted by the MRT. The record shows that the MRT explained the difficulties confronting the applicant (who was not represented at the hearing). The applicant then advised the MRT that he wished to rely on an application which had been made by an "Australian company" in April 2000. The applicant offered to submit a copy of the new application. The record does not make clear the terms of any request made by the applicant. I infer, however, that he asked for an opportunity to supply additional documentation. 14 The hearing record shows that the MRT gave the applicant until 13 June 2000 to submit further documentation concerning the "new company sponsorship". 15 On 12 June 2000, an agent for the applicant forwarded what she described as "sponsorship documents". The documents related to a company known as China Everglow Electronic and Electrical Group Co Ltd ("Everglow"). They included a translation of an undated letter sent to the Australian Visa Office in Shanghai in which the company reapplied "for the standard business sponsorship". The agent's letter indicated that the applicant would fax additional documents. 16 The following day the applicant faxed to the MRT copies of two receipts. The copy in the Green Book of each document is incomplete. However, the first appears to be a receipt dated 7 April 2000 in respect of a "nomination" from Everglow. The receipt records that it was issued by the Shanghai office of the Department of Immigration and Multicultural Affairs ("the Department"). The second receipt was dated 13 June 2000 (that is, four days after the MRT hearing). The receipt was issued to Everglow by the Sydney office of the Department. It is said to be in respect of a "Nomination for Standard Business [not legible]".

mrt's decision 17 The MRT gave its decision on 30 June 2000, some two weeks after the applicant provided the additional documentation. 18 The MRT noted that the applicant had applied for a Temporary Business Entry (Class UC) visa on the basis that he had been the subject of a nomination for the activity of Manager by an overseas business, Qichang. The MRT also noted that Qichang's nomination had been refused by the delegate on 26 February 1999 and that the applicant had been refused a visa on the basis that the required nomination of a business activity had not been approved. The MRT duly summarised the representations made by the applicant's agent. 19 The MRT then referred to the applicant's evidence that he had a new business plan and sponsor, namely, Everglow. It recorded the applicant's evidence that Everglow had twenty-two subsidiaries, one of which had been established in Australia. It also noted that, after the hearing, the applicant had produced evidence of contracts entered into by Everglow in Australia. 20 The MRT stated that it had examined the Department's files. The examination had revealed that the applicant's agent had sent correspondence in relation to Everglow under cover of a letter dated 16 April 1999, which had been received by the Department on 28 April 1999 (shortly after the delegate's decision). The letter had not explained that Everglow wished to be considered as a sponsor. A further letter from the agent, dated 2 September 1999, simply provided evidence of business transactions and made no submission about a new sponsorship or nomination. 21 The MRT continued as follows: "After the hearing, the visa applicant produced to the Tribunal a receipt for lodgement in the Australian Embassy in Shanghai of an application for temporary residence and nomination made on 7 April 2000. An undated letter apparently accompanying the lodgement explained to the 'Officer in Charge, Australian Visa Office, Shanghai, China', that the Everglow Group was re-applying as a sponsor, on this occasion, for a standard business sponsorship fronted by an Australian member of the Group. Attached were copies of a number of certificates issued by the Patents Office of China showing that Everglow was the owner of several patents for mechanical toys. The Australian registered company is, according to the letter, called Australia Everglow Electric and Electronics Co Pty Ltd. The Australian Corporations Number (ACN) or Australian Business Number (ABN) have not been supplied, nor have any suggestions as to how the existing or proposed business activity might benefit Australia." 22 Under the heading "FINDINGS", the MRT observed that, although the applicant had originally sought a visa on the basis of sponsorship by an overseas business, he now relied on "sponsorship by an Australian business". The MRT noted that a "company in the Everglow Group, based in the PRC or Taiwan, had apparently been registered in Australia". It then made this comment: "The company may have been established in Australia and be doing business, but no decision has been made to assess this company as being engaged in an activity in Australia which is the subject of an approved business nomination. While not wishing to pre-empt any decision by the delegate on the new nomination application, the material supplied to the Tribunal does not address some matters vital to a favourable assessment." (Emphasis added.) 23 The MRT pointed out that the delegate had refused the nomination of a business activity made by Qichang. No application had been made to review that decision. Any such application had to be made by "the business sponsor to whose nomination of an activity the decision relates": Migration Regulations, reg 4.02(5)(c). An overseas company not operating a business activity in Australia could not be a "business sponsor" as defined in reg 4.02. Thus there was no basis for review by the MRT of the delegate's decision to refuse Qichang's business nominations. 24 The MRT then turned to what is referred to as the "new application" for a visa: "Apparently, this is not now the course to be followed by the parties, but, similarly, the new application for the grant of a Subclass 457 visa, on the basis of sponsorship by an Australian business, must show that it relates to an activity that 'is the subject of an approved business nomination by the employer'. This prerequisite applies whether the proposed activity is a key activity or a non-key activity. See paragraphs 457.223(4)(b) and 457.223(5)(b) of Schedule 2 to the Regulations. The visa applicant has not indicated whether the proposed activity is to be a key activity or a non-key activity and there is no approved business nomination by the employer." (Emphasis added.) 25 The MRT concluded that the visa applicant had not satisfied sub-clauses 457.223(4)(b) or (5)(b), since the proposed activity had not been the subject of an approved business nomination by the employer. Accordingly, the applicant was unable to meet the requirements for the grant of a Temporary Business Entry (Class UC) visa.

reasoning 26 In a case where an applicant is unrepresented, it is often not easy to ascertain the ground of complaint. The task is not made any easier in the present case by the fact that the application in this Court does not identify any specific ground for review available under s 476(1) of the Migration Act. 27 In argument before this Court, the applicant's complaint appeared to be that the MRT had refused to delay determining his application for review pending a decision by the delegate on Everglow's business nomination. It must be said that the hearing record does not show that the applicant requested a delay for this purpose. Nonetheless, the record is not inconsistent with such a request having been made and I shall assume it was. 28 The course of events before the MRT indicates that the applicant did not raise the question of the Everglow sponsorship prior to the hearing of 9 June 2000. At the hearing, the issue having been raised, the MRT gave the applicant an opportunity to submit further documentation concerning Everglow's sponsorship. The applicant availed himself of that opportunity in the manner I have described. 29 This is not a case where the MRT, knowing that Everglow had made a business nomination on which the applicant relied, affirmed the delegate's decision without making further inquiries as to the fate of the nomination. The MRT took the trouble to examine the documents Everglow had lodged in Shanghai. It also examined the material supplied by the applicant, with a view to determining whether Everglow's nomination was likely to be approved. It found that the material supplied to the MRT did not address "some matters vital to a favourable assessment" of the nomination. It is implicit in the MRT's reasoning that it considered that approval of Everglow's nomination was neither imminent nor, in the absence of further information, likely. It is also implicit that, had the MRT considered that Everglow's nomination was likely to be approved, it may well have awaited the outcome of the approval process. 30 In these circumstances, it is difficult to see how the MRT's refusal to postpone its determination (if that is what occurred) could have constituted an error of law or provided some other ground for review of the MRT's decision. The MRT had formed a judgment, on the material provided to it, that Everglow's nomination was not likely to be approved. That judgment was open to it. There is no principle of law that required the MRT to postpone its decision until Everglow had the opportunity to address the matters the MRT considered to be vital to a favourable assessment of the nomination. 31 The applicant made several other complaints, but none gives rise to a ground of review of the MRT's decision. He asserted, for example, that the MRT had not treated him in the same manner as it had treated other applicants in the same or a similar position. According to the applicant, the MRT in other cases had delayed making a decision on a visa application until the sponsor's business nomination had been approved or rejected. 32 There is, however, no evidence as to how the MRT acted in other cases, let alone evidence that the circumstances of those cases were the same as the present case. In any event, a failure to treat an applicant in the same way as other applicants have been treated does not, of itself, constitute a ground of review under s 476(1) of the Migration Act. 33 The applicant complained that the MRT had failed to take into account that he had been engaged in business activities in Australia. This factual issue was not relevant to the decision made by the MRT. The question it had to decide was whether the applicant's proposed activity had been the subject of an approved business nomination by Everglow. It correctly answered that question in the negative. 34 The applicant also said that Everglow has already signed a contract with an Australian company and that, if he were to be removed from Australia, Everglow would be prevented from discharging its obligations under the contract. Assuming this to be correct, it does not constitute a ground of review under s 476(1) of the Migration Act.

conclusion 35 The application must be dismissed, with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate: Dated: 27 October 2000 The applicant was self-represented. Counsel for the Respondent: Ms L McCallum with Ms P Sibtain

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 24 October 2000

Date of Judgment: 27 October 2000