FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration and Multicultural Affairs [2000] FCA 1544

DE QIANG LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N892 OF 2000

MATHEWS J

25 OCTOBER 2000

SYDNEY

THE COURT ORDERS THAT:

1)      The application is dismissed.

2)      The applicant is to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, Mr Liu, seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 24 July 2000 in which the Tribunal affirmed a decision that Mr Liu was not entitled to a Temporary Business Entry (Class UC) visa. 

2                     Mr Liu is a citizen of the People’s Republic of China.  He came to Australia on 18 October 1997 with a Subclass 456 Business (Short stay) visa which expired one month later.  On 30 October 1997 he applied for a Subclass 457 Business (Long stay) visa.  This application was refused by the respondent's delegate on 29 May 1998.  An application for internal review was also later refused. On 10 February 1999 Mr Liu lodged an application for review with the former Immigration Review Tribunal which, by legislative operation, later became an application for review by the Migration Review Tribunal.

3                     The ground upon which Mr Liu sought a visa was that he was sponsored by an Australian business.  The criteria required to be satisfied in order to obtain such a visa are contained in sub cl 457.223(4) or 457.223(5) of Schedule 2 to the Migration Regulations1994(Cth).  Both provisions contain a requirement that a visa applicant be the subject of an approved business nomination by an employer who is either a pre-qualified business sponsor or a standard business sponsor.  A “business sponsor” is defined in reg 1.20B as a person approved as a sponsor in accordance with reg 1.20D.

4                     In Mr Liu's case the nominated business sponsor was a company called Golden Showa (Australia) Group Pty Limited.  That company had applied for approval as a business sponsor under reg 1.20D, but the application was refused by the respondent's delegate on 29 May 1998.  According to the papers before the Tribunal no review was sought of that decision.  It follows that the business sponsor proposed by Mr Liu did not meet the criteria specified in the regulations.  It was on this basis that the Tribunal affirmed the decision to refuse Mr Liu’s application.

5                     Mr Liu has sought review of this decision from this Court.  He is not legally represented.  The application for review, whilst containing a number of statements which give rise to sympathy for Mr Liu, does not specify any ground under s 476 of the Migration Act 1958 (Cth).  Nor has he been able today to point to any material which indicates any error on the part of the Tribunal. Given the basis upon which the Tribunal reached its decision this is not surprising.  The criteria are, as the word indicates, peremptory in terms. There is no residual discretion to grant a visa to a person who fails to meet them.  As the material before the Tribunal clearly showed that the criteria had not been met in Mr Liu's case, it had no choice but to uphold the visa refusal.  Similarly this Court has no choice but to dismiss the application to review the Tribunal’s decision.

6                     The application is dismissed.  The applicant is to pay the respondent's costs.

Associate:

Dated:              25 October 2000