Liu v Minister for Immigration & Multicultural Affairs [2000] FCA 1639 (8 November 2000)

Last Updated: 24 November 2000

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs [2000] FCA 1639

CHENG LIU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N793 of 2000

MADGWICK J

8 NOVEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N793 of 2000

BETWEEN:	CHENG LIU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	8 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review of the decision of the Migration Review Tribunal of 26 June 2000 be dismissed pursuant to O 32 r 2 of the Federal Court Rules.

2. The applicant is to pay the respondent's costs on an indemnity basis.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N793 of 2000

BETWEEN:	CHENG LIU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

Background

1 The applicant last entered Australia on 25 June 1998 on a visitors visa and subsequently on 25 May 1999, lodged an application for a Temporary Business Entry (Class UC) visa. He appears to hold a Dominican passport. At the same time, his migration agent lodged on behalf of Sealbond Ltd, apparently a Hong Kong company, a "Business sponsorship application" and a "Nomination by a business sponsor" (namely Sealbond Ltd) of the applicant's employment.

2 The applicant's visa application indicated that he was applying "as a person sponsored by a business outside Australia to establish or assist in establishing a business activity in Australia". The business sponsorship application by Sealbond Ltd included none of the records sought in the application, such as financial and annual reports, bank statements and audit reports. The form, including the nomination of the applicant by Sealbond Ltd, included no evidence as to the advertising of the position that the applicant was to hold, nor any detail as to why advertising was not required.

3 The applicant's visa application was dated 21 May 1999 and, as indicated earlier, was apparently lodged on 25 May 1999. His then apparently extant visa was to expire on 10 June 1999 and it appears that he had applied for that visa on 20 February 1999. His own visa application was also, for unexplained purposes, lamentably lacking in any detail that might elucidate or assist to understand his application.

4 On 5 August 1999, the applicant was notified by a delegate of the respondent Minister of two decisions. The first was that, unsurprisingly, the nomination of a business activity - namely the applicant's employment on behalf of Sealbond Ltd - had been refused. The second decision was, equally unsurprisingly, that the applicant's visa application had been refused.

5 On 1 September 1999, the applicant lodged an application for a review of the decision to refuse his visa application with the Migration Review Tribunal ("MRT"). The application indicated that the applicant proposed to send documents to support his contention that Sealbond Ltd was a "standard business sponsor". No such documents were ever sent.

6 On 3 September 1999, the MRT wrote to the applicant acknowledging receipt of his application and requiring that any documents be provided to the Tribunal by 24 September 1999. On 5 April 2000, the MRT wrote to the applicant in accordance with s 359A of the Migration Act 1958 (Cth), inviting the applicant to comment on information that the MRT had, that would be the reason or part of the reason for affirming the decision under review. The nub of the information was that there was no approved business nomination in favour of the applicant and that without it he could not meet the criteria for the visa for which he had applied. The applicant was given until 10 May 2000 to respond to this invitation.

7 On 4 May 2000, the MRT received a letter from the applicant's adviser stating without explanation that the applicant needed more time to respond to the invitation. No specific additional period of time was specified. The MRT wrote to the applicant on 5 May 2000 inviting him to appear before the Tribunal to give evidence and present arguments on 26 May 2000. The applicant neither attended the hearing nor apparently was the MRT contacted about his absence.

8 On 26 June 2000, the MRT gave its inevitable decision affirming the decision under review. The decision was based on the propositions that a requirement for the grant of a 457 visa, which depends upon sponsorship by an overseas business (as was the basis of the applicant's application), is that the applicant's employment should be the subject of an approved business nomination by the employer and no such business nomination had been approved by the Minister.

9 The MRT wrote to the applicant on 26 June 2000 enclosing its decision. The applicant was also advised by that letter that:

"You may have appeal rights in relation to this decision, including under Part 8 of the Migration Act 1958, which deals with the review of decisions by the Federal Court. If you wish to find out more about your appeal rights or about other ways that you may have this decision reviewed, you can seek advice from a registered migration agent, a solicitor, a legal service or a community organisation.

There are strict requirements attached to appeal rights. For example an appeal to the Federal Court under Part 8 must be lodged within 28 days of the notification of a decision. If you intend to seek advice about your appeal rights or to exercise the appeal right you should ensure that you do so as to be within any time limit.

Please telephone me if you have any questions. You may reverse the charges if this office is outside your local area."

10 The lodgment of an application for review of the decision of the MRT and the subsequent appeal to this Court, had the effect of entitling the applicant to have made applications for bridging visas, which opportunity I am told he has availed himself of.

11 No particulars of the grounds for the application for an order of review of the decision of the MRT have ever been furnished. The application itself says that the grounds are:

"1. the procedures that were required by the Migration Act 1958 to observed in connection with the making of the decision were not observed; and

2. the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law."

12 The applicant in his application claimed to be aggrieved by the decision because:

"1. the applicant did not have the opportunity to present his case before the decision was made; and

2. the respondent has interpreted the law regarding foreign sponsoring companies incorrectly."

13 The applicant appeared when the matter was listed for directions before Registrar Quinn on 10 August 2000, and had a Cantonese interpreter.

Proceedings before this Court

14 The matter was listed for hearing on 30 October 2000, and the applicant was required to file and serve an outline of submissions on or before 5 working days prior to the hearing date. No submissions have ever been filed. Subsequently, the applicant failed to pay fees in relation to the proceedings, and during my absence on leave, his "girlfriend Ging" contacted my Associate and, I presume after contact with the respondent, the hearing was rescheduled for today. A letter had also been received from the applicant requesting further time to pay the amount of fees due, and time was extended to 25 October 2000.

15 Upon the matter being called today, there was no appearance by the applicant. In an attempt to get the proceedings on foot, my Associate arranged for the interpreter, organised by the Court to appear to assist the applicant, to try to ring the applicant on the mobile telephone number which he had supplied to the Court. There was no answer on that mobile phone.

16 It is perfectly clear that it is proper to accede to the application now made by counsel for the respondent Minister that I dismiss the proceedings under O 32 r 2 of the Federal Court Rules.

17 The Minister also seeks an order for indemnity costs. In the circumstances mentioned, it seems to me that an irresistible inference arises that this whole exercise on the part of the applicant has been no more than a cynical misuse of procedures made available by the Australian people through their Parliament, to ensure that proper, sympathetic and lawful consideration is given to, in effect, all applications by aliens to remain in Australia. No doubt there are considerations of humanity that inform this general policy, but when, as here, it satisfactorily appears to the Court that entirely worthless claims have been made, and when another litigant has been shut out of having his/her case heard at this time, it is appropriate that the Court make an order for indemnity costs, and I do so.

Disposition

18 The application is dismissed under O 32 r 2, and I order the applicant to pay the respondent Minister's costs of the application to this Court on an indemnity basis.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 8 November 2000

No appearance by the applicant
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 November 2000
Date of Judgment:	8 November 2000