Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 290 (11 November 2004)

Last Updated: 12 November 2004

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 290

XIAO FEI LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1007 OF 2004




FRENCH, EMMETT & DOWSETT JJ
11 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1007 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	XIAO FEI LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, EMMETT & DOWSETT JJ
DATE OF ORDER:	10 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.













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 1007 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	XIAO FEI LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, EMMETT & DOWSETT JJ
DATE:	11 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Following argument in this matter we dismissed the appeal, ordering the appellant to pay the respondent’s costs thereof. We indicated that we would, at a later date, publish our reasons for so ordering. We now do so.

2 The appellant is a citizen of the People’s Republic of China. On 14 October 2002 she applied for a Temporary Business Entry (Class UC) visa. On 2 November 2002, a delegate of the respondent (the "Minister") refused the application. The Migration Review Tribunal (the "Tribunal") affirmed that decision. The appellant then applied pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision. The matter was heard before Sackville J at first instance. His Honour dismissed the application with costs. This is an appeal from that decision.

3 The relevant statutory and regulatory provisions are set out in his Honour’s reasons. The relevant visa was a subclass 457 visa as prescribed in Schedule 2 to the Migration Regulations. Subclause 457.223 relevantly provided that it was necessary that an applicant for such a visa meet the requirements of one of subclauses (2), (3), (4), (5), (7A), (8) or (9). It appears to have been common ground that the appellant sought to satisfy subclause (4). That subclause provided:

‘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 (the employer) is the subject of an approved business nomination by the employer; and
(b) the employer is:

(i) a pre-qualified business sponsor; or
(ii) a standard business sponsor; and

... ’

4 The expressions "pre-qualified business sponsor" and "standard business sponsor" are defined in clause 457.111 by reference to the meanings attributed to them in Division 1.4A. At that time the expression "pre-qualified business sponsor" meant:

‘... a person approved as a pre-qualified business sponsor in accordance with regulation 1.20D.’

5 The term "standard business sponsor" was defined to mean:

‘... a person approved as a standard business sponsor in accordance with regulation 1.20D.’

6 In the appellant’s application the nominated employer was Happy Spring Australia Pty Ltd. It was therefore necessary, in order that the appellant’s application be successful, that Happy Spring be either a pre-qualified business sponsor or a standard business sponsor. It had applied for approval as a standard business sponsor. However that application was refused by a delegate of the Minister, such refusal being upheld by the Tribunal on 24 November 2003. For that reason, the appellant’s application was refused by the Minister. That refusal was also upheld by the Tribunal.

7 Sackville J observed that before him, the appellant submitted that the rejection of Happy Spring’s application was incorrect. As that decision was not the subject of proceedings before his Honour, such submissions were irrelevant. Sackville J found no error in the Tribunal’s conclusion that the appellant was unable to satisfy the requirements of par 457.223(4)(b). It followed that there was no jurisdictional error in the Tribunal’s reasons. The application was dismissed.

8 The notice of appeal identifies the following grounds of appeal:

‘(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.
(2) The decision involves errors of law.’

9 It is not clear whether these grounds were intended to relate to the decision of Sackville J or to the decision of the Tribunal. In any event, neither is sufficiently specific to justify further consideration.

10 Before us, the appellant made the following additional submissions:

·	that she did not agree with the Tribunal’s decision;
·	that Happy Spring had been the nominated sponsor in connection with an earlier visa granted to her; and
·	that we should simultaneously consider this appeal and the correctness of the refusal of approval of Happy Spring as a standard business sponsor.

11 We have considered these additional grounds. Clearly enough, the appellant’s disagreement with the decision offers no basis for upsetting it. Equally clearly, the fact that Happy Spring had previously been approved as a sponsor is irrelevant for present purposes. The relevant application for approval is not the subject of these proceedings. For the same reason we cannot address the correctness of that decision in the course of hearing this appeal

12 No error has been demonstrated in the decision of Sackville J or in that of the Tribunal.

13 For those reasons we dismissed the appeal and ordered the appellant to pay the respondent’s costs thereof.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Emmett & Dowsett.

Associate:

Dated: 11 November 2004

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms K Morgan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 November 2004
Date of Judgment:	11 November 2004