1516497 (Migration)

[2016] AATA 4568

1516497 (Migration) [2016] AATA 4568 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael Peter Graham COLEMAN
Mrs Pamela Ann COLEMAN

CASE NUMBER:  1516497

DIBP REFERENCE(S):  BCC2014/3548156

MEMBER:Bruce Henry

DATE:19 October 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Business Skills (Residence) (Class DF) visa.

Statement made on 19 October 2016 at 11:23am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 November 2015 to refuse to grant the applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 December 2014. The delegate refused to grant the visas on the basis that cl.890.213 of Schedule 2 of the Regulations was not met, however the delegate’s decision record discloses no basis for this finding. It refers to evidence provided by the applicant of the business turnover for the period 1 January 2014 to 31 December 2014, and then concludes, without any discussion of either the evidence or the relevant law, with the signature block of the delegate. On the basis of the finding at the commencement of the decision record that ‘Clause 890.213 has not been met by the applicant on the date I made my decision’, the Tribunal is satisfied that a reviewable decision has been made for the purposes of the Act.

3. The applicants appeared before the Tribunal on 17 October 2016 to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether cl.890.213 of Schedule 2 of the Regulations is satisfied.

7. Clause 890.213 provides:

   In the 12 months immediately before the application is made, the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD300 000.

8. ‘Main business’ is relevantly defined in r.1.11 as follows:

   (1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

   (a) the applicant has, or has had, an ownership interest in the business; and

   (b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   (c) the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was: …

   (ii) if:

   (A) the business is not operated by a publicly listed company; and

   (B) the annual turnover of the business is at least AUD400 000;

   at least 30% of the total value of the business; …

   (iii) if:

   (A) the business is not operated by a publicly listed company; and

   (B) the annual turnover of the business is less than AUD400 000;

   at least 51% of the total value of the business; and

   (d) the business is a qualifying business.

9. ‘Qualifying business’ is defined in turn in r.1.03:

   qualifying business means an enterprise that:

   (a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

   (b) is not operated primarily or substantially for the purpose of speculative or passive investment.

10. The applicants are citizens of the United Kingdom born in 1954 and 1960 respectively. Copies of their passports and birth certificates appear on the departmental file, along with a copy of their marriage certificate, which states that they married in Scotland in 1982.

11. Documents before the Tribunal disclose that the applicants travelled to Australia on numerous occasions from 1992. From January 2000 until July 2010 Mr Coleman travelled on subclass 456 temporary business visas, and on 12 July 2010 he and his wife were granted subclass 163 State/Territory sponsored business owner (provisional) visas valid until 31 December 2014.

12. The applicants applied for the visa on 24 December 2014. Mr Coleman was identified as the primary applicant for the visa. The main businesses identified by Mr Coleman were MP & PA Coleman, a primary producer of fruit, in which he claimed 50% ownership, and Your Healthy Horizon a Natural Health and Acupuncture clinic in which he claimed 25% ownership. The documents supporting the application then refer only to the primary production business, as the applicants do not have a sufficient ownership interest in the other business to meet the requirements of r.1.11, set out above.

13. The application documents stated that the turnover for the applicants’ primary production business for the year 2013 was $85000, and for the year 2014 was $80000.

14. A Statement of Financial Performance provided by the applicants to the Department with their application shows total income of $14206.65 for the 2014 financial year, and $44669.02 for the 2015 financial year.

15. The applicants provided a statutory declaration by Mr Coleman dated 7 October 2016 in which he explains the background to the application (errors in original):

    5. I purchased the farm at Hogarth Range in 2006. When I initially purchased the Farm there were 2,500 trees in production. I developed the property introducing a further 5500 mango and stonefruit trees.
    6. At the commencement of the fruit set in September 2014 it was a particularly dry period. At this time despite the dry period the fruit set reasonably well indicative of a reasonable crop and target turnover.
    7. Around November, December 2014, and into early February of 2015 our farm began to experience a number of high intensity storms. These were hail storms and they began to damage the fruit at a critical stage in their development.
    8. There were six recorded hail events in this critical period. The biggest hail were 12-15mm in jagged pieces that were particular damaging to the fruit. At least two of these events were large enough to take branches off the Mango trees and strip the foliage. Their smaller average hail sizes were 7-8mm. On the research I've done, the probability of storms of this magnitude occurring is around one in ten years. I attach a letter from my colleague who confirms my opinion.
    9. I don't have crop insurance because the general practice is that it is not economic to do so. Further net protection, (that we did trial) reduced the tree production and is not deemed successful in NSW.
    10. Immediately after the hail events we realised that we were going to experience a significantly reduced harvest.
    11. By around February 2015 I estimate that we had around a 75-80 percent reduction of the fruit harvest. The fruit was noticeably damaged and the price per tray was reduced from around projected $25 to $ 8-12 per tray.
    12. There is a relief fund for stone fruit growers that becomes accessible once there is a major hail event there can be up to $25,000 available. This fund is only available to cover the direct cost of damage repairs and it does not cover or compensate for crop loss. So we could not take advantage of this scheme.
    13. I say that but for the existence of these hail event the farm would have had an anticipated turnover in excess of $300,000.
    14. I attach a copy of the business plan for the relevant period.
    15. Since I have owned the farm I have invested around $1.5 million in capital into the farm. We have added around 4,000 trees to the farm. I originally purchased both the farm and the business at $850,000. I now estimate that the farm and the business is valued at around $650,000.
    16. It have been a difficult decade for stone fruit growers in this region for a number of different reasons. There used to be around 80 NSW Mango growers in regional NSW but I now believe there are now only 2 dedicated commercial mango growers. This due primarily to the cost of production increase against diminishing returns during this weather cycle.
    17. I have been the President NSW Mango Farm growers since 2008. I have been a member since 2006. We wound up the association last year as the number of declining mango farms made its continuation untenable.
    18. l have also been involved in regional development and policy formation in the North Coast Rural Producers Consultative Committee Chaired by Mr Rik Whitehead, Regional Director NSW Department of Primary industries.

16. At the hearing the applicants confirmed that they had bought the farm at Hogarth Range in 2006. Mr Coleman said that prior to this his travel to Australia had been mainly dealing with AusTrade business connected with his work in Hong Kong. He confirmed that his business had two very difficult years immediately prior to the application due to weather conditions, and that the turnover was considerably less than $300,000.

17. A submission dated 13 October 2016 received by the Tribunal from the applicants’ representative states:

    3.1. We acknowledge that on an initial reading, the business turnover of the Applicant in the relevant period of January 2014 to December 2014 did not satisfy Item 890.213 from Schedule 2 of the Migration Regulations 1994 (Cth).

    3.2.  We submit that the purpose of item 890.213 is to look to the annual turnover of the business in its normal operating capacity.

    3.3.  In light of the drought conditions experienced in Queensland and Northern NSW in the relevant period and also in light of a number of unforeseeable weather events experienced by the Applicant, we submit that annual turnover of the farm in producing mangoes was reduced to the extent that the on-paper annual turnover was unreflective of the business' actual financial position.

    3.4.  Consequentially, we submit that Item 890.213 should be given its purposive reading and read in light of the severe financial hardship experienced by business owners in Northern NSW as a consequence of these unforeseeable weather events.

    3.5.  In order to give this provision its purposive interpretation and avoid the unfair and unforeseen application of a literal reading, we submit that it is open to the Tribunal to 'read in' to Item 890.213 the following underlined phrase:

    [890.213] In the 12 months immediately before the application is made, the applicant's main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD300 000 or would have had but for the occurrence of an unforeseeable intervening event beyond the Applicant's control. (emphasis in original)

18. The Tribunal does not accept that a purposive approach to statutory interpretation enables it to add the phrase proposed by the representative to cl.890.213. In Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 McHugh, Gummow, Kirby and Hayne JJ in the High Court said (at [78]) (footnotes omitted):

    However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:

    "The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with."

19. The Tribunal is satisfied that cl.890.213 contains no ambiguity. Its meaning is clear, and it is not inconsistent with the other provisions of Part 890 of Schedule 2 of the Regulations. It simply requires that a business have a set minimum turnover of $300,000 for the 12 months prior to the application, and contains no qualifications or exceptions to that requirement.

20. The applicants have conceded that the turnover for their main business for the 12 months prior to the application was less than $300,000. The Tribunal rejects the submission that cl.890.213 can be read so as to disregard that requirement. Accordingly, the Tribunal is satisfied that cl.890.213 is not met.

21. The applicants cannot satisfy the requirements for other subclasses of the Business Skills (Residence) (Class DF) visas because there is no evidence of any relevant investment or sponsorship as required for those subclasses.

22. Given these conclusions, the applicants are unable to satisfy the criteria for a Business Skills (Residence) (Class DF) visa and each must be refused the grant of such visas under s.65 of the Act. The delegate’s decisions to this effect should be affirmed.

23. The applicants have asked that the Tribunal consider referring this matter to the Minister for his consideration under s.351 of the Act. They have provided a substantial quantity of material directed to this matter, and also addressed the matter at the hearing. The Tribunal is satisfied on this material that:

    ·The applicants’ daughter is an Australian citizen. She lives near them in northern New South Wales, and the applicants provide her with considerable support with her business and her two young children;

    ·The applicants have invested their entire financial resources in the success of their mango farm, and have been severely affected by extreme climatic events during the last two growing seasons which caused a substantial drop in the turnover of the business;

    ·The applicants have substantial support from their local community, including from the Rural Fire Service, of which they are both active members;

    ·The applicants have owned and operated their farm since 2006, and were supported in their application for the subclass 163 visas that they previously held by the New South Wales State government;

    ·The applicants have not lived in the United Kingdom since 1983; and

    ·The applicants have at all times complied with the requirements of their various visas whilst in Australia.

24. The applicants’ representative has advised the Tribunal that the applicants have no other visa options available to them without leaving Australia, which would cause them to lose their business investment and their home.

25. The representative has asked that the matter be brought to the attention of the Minister in accordance with the following principles set out in the current Ministerial Guidelines on s.351 of the Act[1]:

    [1] See PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J) at paragraph 4

    4. Unique or exceptional circumstances

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person …

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

26. In the circumstances, the Tribunal considers that this case does raise issue which are appropriate for referral to the Minister in accordance with these provisions of the Guidelines, and recommends that the Department take the appropriate action under the guidelines.

    DECISION

27. The Tribunal affirms the decisions under review refusing the applicants the grant of Business Skills (Residence) (Class DF) visas.

    Bruce Henry
    Member