Su, Shao Jun [2000] MRTA 1334 (30 May 2000)

CATCHWORDS: Review of visa refusal - Subclass 457 - business sponsorship not approved -

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Shao Jun Su (the 'visa applicant'), a national of the Peoples Republic of China, born on 26 February 1960, applied for a Temporary Business Entry (Class UC) visa on 3 June 1999 (D1, not numbered). The delegate's decision to refuse to grant the visa was made on 11 August 1999 (D1).

2. The visa applicant lodged a valid application for review to the Tribunal on 6 September 1999 (T1, f.6-11). The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. The Tribunal's review is generally limited to a consideration of whether a visa applicant fails to meet an essential criterion, or whether there is a basis for remitting an application for a visa to DIMA.

5. The criteria and policy immediately relevant to this review are:

Part 457 of Schedule 2 to the Regulations

6. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

8. The visa applicant entered Australia on a 456 visa on 4 February 1999 and departed on 21 February 1999. The visa applicant again entered Australia on a 456 visa on 2 June 1999. On 3 June 1999 the visa applicant was granted a bridging visa B permitting travel outside Australia on the basis of the application for a visa the subject of this review. The visa applicant has made several trips to and from Australia since this the application under review was made. On 5 June 1999 she departed Australia and returned on 11 July 1999. She again departed on 22 July and returned on 5 September 1999. On 19 September she departed on a bridging visa B and has not returned to date. The bridging visa B ceased on 17 December 1999 and there have been no further visas granted.

9. The delegate stated that the visa was not granted on the basis that the proposed employer had not been approved as a business sponsor (D1). The visa applicant stated when lodging the application for review that she disagreed with the decision because the company sponsoring her is a legitimate and on-going business with substantial investments in Asia proposing to conduct business in Australia (T1, f.8).

10. The visa applicant was sent a letter on 5 April 2000 inviting the visa applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The visa applicant's representative wrote to the Tribunal on 5 May 2000, indicating she is waiting for business transaction records etc..

11. On 9 May 2000 the Tribunal wrote to the applicant at her address for service as provided for the regulations, inviting her to appear before the Tribunal and provide evidence. The applicant was also advised that she was able to request the Tribunal to obtain oral or written evidence from other persons or other written material. The hearing was set down for 30 May 2000. The visa applicant provided telephone numbers for the Tribunal to contact the visa applicant.

12. The Tribunal telephoned the visa applicant with the help of a Cantonese interpreter. The visa applicant stated that the company had an agreement to export. The visa applicant made no other comments.

13. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 is not relevant as such a visa cannot be granted to a visa applicant in Australia or to a visa applicant who is seeking a visa for longer than 3 months as in the present case.

14. A Subclass 457 visa can be obtained on a number of grounds. The ground under which the visa application appears to have been made is `sponsorship by an overseas business'. No claims have been made in respect of the other grounds and the material before the Tribunal does not suggest that the visa applicant meets any of the other grounds.

15. One criterion for the grant of a Subclass 457 visa on the basis of sponsorship by an `overseas business' (more specifically, `a person ... who does not operate a business activity in Australia') is that it relates to an activity that `is the subject of an approved business nomination by the employer' (paragraph 457.223(6)(b) of Schedule 2 to the Regulations). The nomination of the activity of Manager by Shenjen City Poji Shunjing Trading Co. (D1) was refused by the delegate on 11 August 1999 (D1).

16. Paragraph 4.02(4)(d) of the Regulations provides that a decision to `refuse to approve the nomination of an activity by a business sponsor' is a MRT-reviewable decision. Further, paragraph 4.02(5)(c) provides that an application for review of a decision to refuse to approve a nomination may only be made by a `business sponsor'. A `business sponsor' must be lawfully operating a business in Australia (paragraph 1.20D(2)(a)), while an `overseas business' must not (yet) be operating a business in Australia (paragraph 457.223(6)(a)). The use of the term `business sponsor' and the definition of that term in regulation 4.02 reflect a policy intention that review rights do not extend to an `overseas business'. This is consistent with standing rules in relation to other kinds of visas. Therefore, decisions to refuse to approve nominations of business activities by `overseas businesses' cannot be reviewed by the Tribunal

17. Unless there is an approved business nomination, it is not possible for the visa applicant to meet paragraph 457.223(6)(b) `that activity is the subject of an approved business nomination by the employer'. If the visa applicant cannot meet this criterion, it is not necessary to consider the other criteria set out in subclause 457.223(6).

18. As there is no approved business nomination, and no other basis on which a visa can be granted, the Tribunal must affirm the decision under review. The visa applicant does not meet the criteria for a Subclass 456 visa, or the criteria for a Subclass 457 visa.

19. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC ) visa.