FEDERAL COURT OF AUSTRALIA

Niu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 654

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 Business (Long Stay) – application for review of decision of Migration Review Tribunal – MRT affirmed decision of Minister’s delegate to refuse a visa on the ground that applicant’s proposed employer had not been approved as a business sponsor – no reviewable error disclosed

Migration Act 1958 (Cth) s 474(1), 474(2)

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules Order 32 rule 2(1)(d), Order 35 rule 7(2)(a), Order 20 rule 2

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

BEN NIU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 202 OF 2002

HELY J

7 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This matter was commenced by an application dated 14 March 2002.  On the same date the applicant wrote to the Registrar of the Court requesting that the directions hearing listed for 4 April 2002 be deferred, and indicating that he needed to go overseas to get money “so as to continue living in Australia until the outcome of this judicial review”.  The applicant said in his letter that he would not be able to return to Australia until 1 May 2002, and requested an alternative hearing date.

2                     The respondent filed a Notice of Objection to Competency on 21 March 2002.

3                     The Registrar responded to the applicant’s letter on 2 April 2002 informing the applicant that the directions hearing listed for 4 April 2002 would remain unchanged, and that the applicant should be represented at the hearing if he could not attend in person.  The applicant did not appear at the directions hearing.  In his absence, the Registrar gave various directions, including a direction that the Notice of Objection to Competency be listed for hearing on 7 May 2002.

4                     On 5 April 2002 the respondent's solicitors wrote to the applicant at his address for service, notifying the applicant of the directions which were made by the Registrar on 4 April 2002.

5                     When the matter was called on for hearing this morning, the applicant did not appear.  It appears, from the affidavit of Mr Cranwell of 26 April 2002, that the applicant left Australia on 16 March 2002.  Mr Cranwell, who appeared for the respondent at the hearing,  stated that his instructions were that the applicant has not since been issued with a visa which would permit him to return to Australia. 

6                     The respondent submits that I should proceed with the matter generally under Order 32 rule 2(1)(d) of the Federal Court Rules.  It is suggested that it would be fairer to the applicant if I were to hear the matter rather than simply to dismiss the application by reason of the applicant's non attendances.  Whichever course I adopt, it is suggested that the provisions of Order 35 rule 7(2)(a) would empower the Court, if it thinks fit, to set aside any judgment made in the absence of the applicant.  I think I should accede to the respondent's request in this respect. 

7                     The applicant is a citizen of the People's Republic of China who entered Australia on a Short Stay (Visitor) (Class TR) subclass 676 visa on 27 December 2000.  On 22 March 2001 the applicant lodged an application on Form 1066 styled “Application for a long-stay temporary business visa”.  Schedule 1 to the Migration Regulations 1994 (Cth) provides for a class of visa titled “Temporary Business Entry (Class UC)” which has two subclasses, namely 456 Business (Short Stay) and 457 Business (Long Stay).  Form 1066 is appropriate where an applicant seeks a visa that will permit the applicant to remain in Australia for more than three months.

8                     The visa application (at question 19) indicated that the applicant was applying for a visa as a person sponsored by an Australian business.  The business name of the employer was given in the answer to question 20 as Pro-Animation Enterprise (Oceania) of 750 George Street, Sydney. 

9                     On 21 July 2001 the Minister's delegate refused the application.  The applicant sought a review of that decision by the Migration Review Tribunal (“the MRT”) on 20 August 2001.  On 26 September 2001 the MRT wrote to the applicant seeking his comments on information the MRT had obtained which, in the MRT’s opinion,  would be a reason for affirming the decision under review.  The information obtained by the MRT  was that a decision had been made not to approve Pro-Animation Enterprises (Oceania) as a business sponsor.  The MRT stated that without an approved business sponsor the visa criteria could not be met. 

10                  On 2 October 2001 the applicant sought an extension of time to provide his comments to the MRT.  He was granted an extension of time until 12 December 2001.  However, the applicant did not provide any comments within that time or at any time prior to the MRT’s decision.

11                  On 20 February 2002, the MRT affirmed the decision under review, finding that the visa applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa.  The substantial ground of the decision was the refusal of the application made by Pro-Animation Enterprises (Oceania) for approval as a business sponsor, and the absence of any application before the MRT for a review of that decision.  The MRT stated that, in those circumstances, the applicant did not meet the criteria for a subclass 457 visa.  Subclass 456 is not relevant, if only because the applicant was seeking a visa for longer than three months, using Form 1066.

12                  As stated above, the applicant filed a document in the Federal Court on 14 March 2002 styled “General Application to the Court”, apparently pursuant to the Migration Act 1958 (Cth).  The application followed the form prescribed in Form 5, which is the appropriate form where application is made to the Court under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  Although there is nothing in the form which refers to the Judiciary Act, the application claims:

“(1)     MRT's (Migration Review Tribunal)’s decision contains errors;

(2)            the above jurisdictional errors affected the exercise of the power of the MRT (Migration Review Tribunal).”

13                  There is no specification of the errors upon which the applicant relies, nor was there filed with the application either an affidavit or a statement of claim which shows the nature of the applicant's claim and the material facts on which it is based, as is required by Federal Court Rules Order 4 rule 6.  The affidavit attached to the application asserts a belief on the part of the applicant that the decision of the MRT contains errors of law, but without any greater particularity.

14                  The Notice of Objection to Competency of the application which was filed on 21 March 2002 stated the following grounds:

“(1)     Section 476 of the Act, as at the commencement of these proceedings, was not a source of any jurisdiction by the Federal Court of Australia to review the decision sought to be challenged;

(2)               the decision sought to be challenged is a ‘privative clause decision’ as that term is defined in s 474(2) of the Act;

(3)               section 474 of the Act provides, inter alia, that a privative clause decision is final and conclusive; and must not be challenged, appealed against, reviewed, quashed or called into question in any court.”

15                  It is clear that the Federal Court has jurisdiction to entertain an application for review of a decision of the MRT under s 39B of the Judiciary Act.  Such a decision is a privative clause decision as defined in s 474(2) of the Migration Act.  Accordingly, the decision is subject to the constraints on review imposed by s 474(1) of the Migration Act.  It is not clear under which Act the application is made.  Insofar as the application purports to be made under the Migration Act, the objection to competency should be upheld.

16                  If, however, the application is regarded as being made under the Judiciary Act, or if the application were amended so as to make it clear that s 39B of the Judiciary Act is relied upon, then the Court would have jurisdiction to entertain the application.  Nonetheless, even if the application be regarded as being one which is made under s 39B of the Judiciary Act, in my view, the application should be dismissed under Federal Court Rules Order 20 rule 2 on the ground that no reasonable cause of action is disclosed.

17                  No error of law on the part of the MRT is disclosed by the application or the accompanying affidavit which could possibly grant relief under s 39B of the Judiciary Act, leaving aside the provisions of a privative clause.  When account is taken of the provisions of s 474(1) of the Migration Act, the applicant's position becomes even more untenable.  There is no complaint, and so far as appears, there could be no complaint, that the MRT acted otherwise than in good faith.  The decision clearly related to the subject matter of the legislation and was reasonably capable of reference to the power conferred on the MRT.  There was no breach of any of the preconditions to the valid exercise of power identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 and 616-617, which s 474(1) was intended to enshrine as the limit of the grounds on which the Court may interfere with privative clause decisions.

18                  The application should therefore be dismissed with costs and I make an order accordingly.  I direct that the respondent forward to the applicant at his address for service a copy of these orders and of the reasons which I have given in making them.

Associate:

Dated:              23 May 2002