Yan v Minister for Immigration & Multicultural Affairs [2001] FCA 819 (22 June 2001)

Last Updated: 16 July 2001

FEDERAL COURT OF AUSTRALIA

Yan v Minister for Immigration & Multicultural Affairs [2001] FCA 819

GUANG ZHAO YAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 564 OF 2001

EMMETT J

22 JUNE 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 564 OF 2001

BETWEEN:	GUANG ZHAO YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	22 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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 564 OF 2001

BETWEEN:	GUANG ZHAO YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	22 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Guang Zao Yan, ("the applicant") is a national of the Peoples Republic of China. On 28 April 2000, he applied for Temporary Business Entry (Class UC) visa. The application included the applicant's spouse and children. On 18 July 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant the visa. On 10 August 2000, the applicant applied to the Migration Review Tribunal ("the Tribunal") for review of the delegate's decision. On 19 April 2001, the Tribunal affirmed the decision not to grant a Temporary Business Entry (Class UC) visa. On 8 May 2001, the applicant applied to the Court for an order of review of the decision of the Tribunal.

2 The application specifies four grounds but no particulars are provided. The application says that "affidavit and particulars will be supplied". There is no affidavit nor are there any particulars on the Court file.

3 When the matter was called on today, there was no appearance for the applicant. The Minister asked for an order under Order 10 Rule 3(2), that the application be dismissed. That rule provides that if no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order which it thinks proper.

4 The reasons of the Tribunal affirming the decision then under review are brief. I shall summarise them.

5 The applicant first entered Australia on a Temporary Business Entry (Subclass 456) visa on 8 December 1997. That visa was valid until 8 March 1998. On 9 April 1998, the applicant was granted a Temporary Business Entry (Subclass 457) visa, following a nomination by a business sponsor, Valley International Travel Pty Limited. The applicant used that visa to travel to and from Australia several times before it expired on 30 April 2000. Since then he has held a bridging visa granted on the basis of the application that was the subject of the review before the Tribunal.

6 The applicant informed the Tribunal that he had purchased Valley International Travel Pty Limited. He indicated that he had been informed by his migration agent that he would then have no problems obtaining permanent residency in Australia. He informed the Tribunal that it was only on the basis of his belief that he would be granted permanent residency that he bought that business.

7 At the relevant time, Class UC contained two sub-classes, being sub-class 456 and sub-class 457. The Tribunal found that sub-class 456 was not relevant to the applicant for two reasons. The first reason is that such a visa cannot be granted to a visa applicant in Australia, and the second is that the applicant was seeking a visa for longer than 3 months.

8 A sub-class 457 visa can be obtained on a number of grounds. The ground on which the applicant applied was sponsorship by a business operating in Australia. The business operating in Australia that acted as sponsor was Valley International Travel Pty Limited.

9 However, one necessary criterion for a sub-class 457 visa is that the sponsor is a pre-qualified business sponsor or a standard business sponsor, as set out in sub-clauses 457.223(4) and 457.223(5) of Schedule 2 to the Regulations made under the Migration Act 1958 (Cth). While an application for approval as a business sponsor was made by Valley International Travel Pty Limited, that application was refused by a delegate on 18 July 2000. There has been no application for a review of that decision and the time limit for seeking such a review appears to have expired. The Tribunal therefore concluded that there was no basis upon which the visa sought could be granted to the applicant.

10 On its face, there does not appear to me to be any flaw in the reasoning of the Tribunal. In the absence of any particulars in the application, there does not appear to me to be any ground upon which this Court would interfere with the decision of the Tribunal. In the circumstances, it appears to me to be appropriate to accede to the application made on behalf of the Minister.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 28 June 2001

Counsel for the Applicant:	No appearance
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 June 2001
Date of Judgment:	22 June 2001