Zhou v Minister for Immigration & Multicultural Affairs [2000] FCA 1833

Procedural Posture

Application for Review of Migration Review Tribunal Decisions Affirming Refusals of Temporary Business Entry (class Uc) Subclass 457 Business (long Stay) Visas / Federal Court Review Treated as Brought on the Ground in Migration Act 1958 (cth) S 476(1)(e)

Legal Issues

1. 1 ['Whether the Migration Review Tribunal decisions involved an error of law by incorrectly interpreting the applicable law.' "Whether the applicants' proposed employment activity was the subject of an approved business nomination by the employer as required for the sponsored subclass 457 visa category." "Whether the refusal to approve the employer's business nomination was subject to review." 'Whether the applicants could rely on the independent executive category in subcl 457.223(7) when their visa applications were made inside Australia.']

Ratio Decidendi

Because the employer's proposed business activity had not been approved as a business nomination, and because no review of that refusal was sought or obtained, neither the Minister's delegate nor the Tribunal could lawfully grant the applicants subclass 457 visas under subcl 457.223(6). The applicants' reliance on subcl 457.223(7) also failed because that category could only be applied for from outside Australia and the applicants applied from within Australia. The Tribunal decisions therefore involved no relevant error of law and had to be affirmed.

Court Disposition

The Migration Review Tribunal decisions were affirmed and the application failed.

Orders

• ['The decisions of the Migration Review Tribunal be affirmed.' "The applicants pay the respondent's reasonable costs (in particular, the issue of the costs of the filing of two volumes of documents is a matter I refer to the Taxing Officer)."]