Gu, Hong [1999] MRTA 470 (22 October 1999)

CATCHWORDS: QSBS Nomination (by an overseas company)

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), details of which are as follows:

Visa Class/Sub Class: Temporary Business Entry (Class UC)

2. The application for review was validly made under section 338 of the Migration Act 1958 (the Act), which goes to decisions reviewable by the Migration Review Tribunal (the Tribunal) and it complies with section 347 (which goes to the standing of the Review Applicant):

Validity of MRT application: Valid application - within time and

3. The Act (as amended), and the Migration Regulations 1994 (the Regulations) provide for different classes of visas. Government policy guidelines are an aid to interpretation and application of the prescribed criteria for these visas. Most policy guidelines are set out in the Procedures Advice Manual (PAM 3) issued by the Department of Immigration and Multicultural Affairs (the Department).

4. In reaching its decision the Tribunal is bound by the Act and Regulations and applies relevant government policy which is lawful. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 499 of the Act are applied wherever they are relevant (see generally Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634 Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144) and Cabal v Minister for Immigration and Multicultural Affairs (Federal Court, 23 December 1998, unreported).

5. The relevant legislation and policy in force at the time the Visa Applicant applied for the visa is set out below:

Migration Act 1958

Migration Regulations 1994 Subclass 457

6. Ms Gu (the Applicant) lodged a completed application Form 1066 with the Department on 27 July 1998 seeking to remain in Australia for a period of 3 years. She had applied for a Subclass 457 Business (Long Stay) Temporary visa indicating in the application Form 1066 that she was applying for the visa "as a person sponsored by a business outside Australia to establish or assist in establishing a business activity in Australia". The Applicant noted in the form that she was married and that she was the holder of a Subclass 456 visa at the time.

7. A "Business Sponsorship application" Form 1067 in the company name "Xuzhou Xinjishu Construction Material Developments (Aust) Pty Ltd" seeking approval as "an overseas business sponsor" was signed on 23 July 1998 by the managing director for that company. A "Nomination by a business sponsor" Form 1068 naming "Xuzhou Xinjishu" as the sponsoring company was also submitted indicating in part that the Applicant was to be the "general manager" on an annual salary of $40,000.00.

8. On 24 May 1999 the Applicant was refused a Subclass 457 visa by a delegate of the Minister .As well, the "nomination of a business activity" by "Xuzhou" was refused that day pursuant to regulation 1.20H of the Regulations.

9. On 31 May 1999, an application for review of that decision was lodged with the Migration Internal Review Office (MIRO). MIRO ceased to exist on 31 May 1999 and on 1 June 1999 this application was transferred to this Tribunal.

10. The Applicant applied to MIRO for a review of the decision to refuse her a "Subclass 45 Long Stay Temporary Visa".

11. A hearing in this matter was arranged for 1 September 1999.

12. The Applicant did not attend the hearing and the Tribunal will proceed to a decision on the material before it. Indeed, the Tribunal was informed the Applicant was overseas.

13. It appears from the legislation that businesses which do not operate in Australia cannot be approved as a "business sponsor" (see reg. 1.20D(2) (a)) although such businesses may nominate an activity for the purposes of a Subclass 457 application under reg. 1.20G(1)(d) for applicants who came into the clause 457.223(6) category.

14. As noted a person not operating a business in Australia can nominate an activity for the purposes of a Subclass 457 application even though that person is unable to become a "sponsor". The condition for such a nomination is that the person :

i) has given undertakings in accordance with approved form 1067, and

ii) is a person whom the Minister is satisfied (apart from not operating a business in Australia) would, on application, be likely to be approved as a standard business sponsor. (See regulation 1.20G (1)(d)).

15. This type of person is commonly referred to as a "quasi standard business sponsor" (QSBS). Indeed the Department acknowledged this type of person and application by forming the "QSBS Task Force" to consider these applications.

16. The Tribunal notes that prior to 1 June 1999 nomination refusals in QSBS cases were reviewable by the then Migration Internal Review Office (MIRO) and the Immigration Review Tribunal members the subject of a ministerial delegation dated 12 November 1996.

17. Under the transitional provisions (see statutory Rules No. 68 of 1999) applications by overseas businesses in relation to nominations (regulation 1.20H), refusals are not reviewable by this Tribunal (see regulation 4). Therefore pursuant to section 338 of the Act and regulation 4.02, this Tribunal is unable to review QSBS nomination refusals irrespective of whether there was an application for such a review before MIRO or the IRT prior to 1 June 1999. Indeed it appears the clear intention of transitional regulation 4 is to exclude from review the QSBS nomination refusals that might have been previously reviewed.

18. In order to succeed in application for a visa under the migration legislation it is necessary for the Applicant to satisfy all of the criteria for the grant of the visa.

19. The Applicant at the time of the application on 27 July 1998 was the holder of a Subclass 456 visa. Accordingly she satisfies clause 457.211 of the Regulations.

20. The Tribunal notes that although the Applicant indicated on the application form 1066 and the other forms 1067 and 1068 that she was applying for the Subclass 457 visa as a person nominated or sponsored by a business outside Australia to establish a business here. As well on the forms 1067 and 1068 although the details of the company sponsoring and nominating the Applicant referred to "Xuzhou Xinjishu Construction Material Developments (Aust) Pty Ltd" the Applicant indicated on those forms that approval was being sought as "an overseas sponsor".

21. Other material on the Department's file reflect that the Australian company was "set up in Melbourne as a subsidiary" for the Applicant's company in China "Xuzhou Xinjishu Construction Materials Co". The Australian company was registered here on 14 July 1998 and the Applicant is its sole shareholder.

22. Given the evidence and material before it, the Tribunal finds on balance that the Applicant is unable to satisfy subclauses 457.223(2), (3), (8) and (9) of the Regulations. Indeed, given the Applicant's circumstances it was not submitted on her behalf that she could satisfy any of these subclauses.

21. The Applicant applied for a Subclass 457 visa on the basis of being "an employed executive establishing or assisting to establish a business entity in Australia". Given the application, her situation and the nomination by her company (see forms 1067 and 1068) the Applicant's sponsor or nominator is to be referred to as a QSBS and the Tribunal is unable as noted above, to review the refusal of a nomination (regulation 1.20H) by a QSBS as only nomination decisions in relation to approved business sponsors are reviewable (see section 338 and regulations 4.02(1) and (4)(d)).

22. As noted above the Applicant and the activity specified is not the subject of an "approved business nomination". Therefore, in the absence of an approved nomination the visa refusal must be affirmed, as the Applicant is unable to satisfy subclause 457.223(6)(b) of the Regulations.

23. The forms, 1067 and 1068 indicate that although the Applicant was sponsored or nominated by her Australian company, the type of sponsorship or nomination sought for approval was an "an overseas business sponsorship" and as an "overseas business sponsor". However, as indicated, the Applicant is unable to succeed in that regard.

24. The Tribunal notes that in the submissions presented that a number of proposed projects or activities that were to engage the Applicant and her company were referred to. However it does not appear that these came to fruition or that they will do so at this time. As well the Applicant does not appear to employ any Australian citizen or permanent resident. Material or evidence has not been presented that her activities here contribute to the expansion of trade, the improvement of Australian business links with international markets, the competitiveness within sectors of the Australian economy and the like. As well, there is no evidence and material for the Tribunal to find, on balance, that the Applicant will introduce or create or improve technology or business skills here, or that Australian citizens or permanent residents will be trained in any of her business activities here.

25. Therefore, on the evidence and material before it, the Tribunal finds on balance that Applicant is unable to satisfy subclauses 457.223(4),(5) or (7) of the Regulations.

26. It may be that the application fails for other reasons as well, however it is not necessary to consider this matter further given the findings above, for it is trite to note that an Applicant for a visa must meet all of the prescribed criteria for the visa sought.

27. The Tribunal notes that item 1223A of Schedule 1 of the Regulations sets out in part the requirements for a Temporary Business Entry (Class UC) visa. That regulation identifies the application forms to be used for the 2 subclasses of visa viz. Subclass 456 and Subclass 457 contained in that visa class. For the Subclass 456 visa for a period of stay in Australia of 3 months or less the stipulated form is 1034, while for a Subclass 457 visa for a stay of 3 months to 4 years, the form is 1066.

28. The Applicant in this matter submitted a completed form 1066 seeking a stay in Australia of 3 years.

29. Consequently after considering all of the material and evidence submitted in this matter the Tribunal finds that the Applicant is also not entitled to a Subclass 456 visa, the other subclass of visa referred to in the Regulations regarding a Class UC visa.

30. The Applicant in all the circumstances of this matter is not entitled to the grant of a (Class UC) Subclass 456 or 457 visa. The application before the Tribunal therefore fails.

31. The Tribunal affirms the decision under review to refuse the grant of a visa to the Applicant.

I certify that this and the preceding pages are a true copy of the Statement of Decision and Reasons.