Ali v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 118
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 118
File number: PEG 149 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 15 February 2024 Catchwords: PRACTICE AND PROCEDURE – application in a proceeding seeking adjournment of final hearing – where adjournment sought on medical bases – where evidence does not establish that the applicants are unable to participate in the hearing – application for adjournment refused.
MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants Business Skills (Residence) (Class DF) visas – whether Tribunal provided insufficient reasons or failed to comply with its procedural fairness obligations – whether Tribunal failed to consider applicants’ evidence – where Tribunal had no discretion to grant visas to the applicants in circumstances where it was not satisfied that the prescribed criteria for the visas were met – no jurisdictional error – application dismissed.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 65, 134, 349, 357A, 359A, 360A, 360, 361, 368, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cll 892.211, 892.221, regs 1.11, 4.21
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of last submission/s: 6 February 2024 Date of hearing: 30 January 2024 Place: Perth Applicants: The first, second, fourth, fifth and sixth applicant appeared in person (via Microsoft Teams) Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 149 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAJID ALI
First Applicant
ABIDA PERVEEN
Second Applicant
ALEENA WAJID (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants applied for Business Skills (Residence) (Class DF) State/Territory Sponsored Business Owner (Subclass 892) visas (business skills visas) and their application was refused by a delegate of the Minister. The applicants sought merits review of that decision by the Administrative Appeals Tribunal (Tribunal) and the Tribunal affirmed the delegate’s decision. The application currently before the Court is an application for judicial review of the Tribunal decision, made under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicants advanced four grounds in the application to this Court, which allege jurisdictional error in the Tribunal decision on the basis that:
(a)the Tribunal did not provide sufficient reasons and denied the applicants procedural fairness;
(b)the Tribunal failed to consider evidence provided by the applicants regarding their decreased shareholding in the main business;
(c)the Tribunal failed to consider the first applicant’s cumulative ownership of businesses; and
(d)the Tribunal failed to exercise its discretion and authority.
For the reasons explained below, I have found that the applicants have not established that the Tribunal decision is affected by jurisdictional error and I dismiss the judicial review application to this Court.
VISA APPLICATIONS AND ADMINISTRATIVE DECISIONS
The applicants applied for the business skills visas on 29 March 2019. The first applicant was the primary visa applicant. The second applicant, who is the first applicant’s wife, and the third, fourth, fifth and sixth applicants, who are the adult children of the first and second applicants, applied for the business skills visas as members of the same family unit as the first applicant. For the purposes of the applications for the business visas, the first applicant nominated his main business as Ready Frame Structural WA Pty Ltd (Ready Frame Structural).
On 6 July 2021 a delegate of the Minister made a decision not to grant the applicants business visas.
The applicants then applied to the Tribunal on 20 July 2021 for merits review of the delegate’s decision.
The applicants provided additional information to the Tribunal in the course of the review and they attended a hearing convened by the Tribunal on 15 June 2023 to give evidence and present arguments.
On 22 June 2023 the Tribunal affirmed the delegate’s decision not to grant the applicants business visas.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the first applicant would need to meet the requirements of cl 892.211(1) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required him to have an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and to have continued to have held that interest at the time the visa application was made. The Tribunal further identified that pursuant to cl 892.221(a), the first applicant must continue to satisfy that requirement at the time of the decision. The Tribunal therefore identified that it was required to consider the nature of the first applicant’s interest in the business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of the application. The Tribunal identified that it must also consider these issues as at the date of the decision.
The Tribunal considered a company extract from the Australian Securities and Investment Commission (ASIC) dated 16 May 2023 in relation to Ready Frame Structural, which had been submitted by the applicants. The Tribunal noted that the document showed that liquidators were appointed to the company on 24 May 2022 and ceased their appointment on 25 January 2023 and that the company was deregistered on 27 April 2023. The first applicant confirmed that they shut down the business in 2022. The Tribunal therefore found that the business nominated by the applicants as the main business had been deregistered and there was no main business. Accordingly, the delegate’s decision had to be affirmed.
The Tribunal also found that the requirements of cl 892.211(1) in Schedule 2 to the Regulations were not satisfied because Ready Frame Structural did not meet the definition of a main business at the time of the application and during the two years immediately before the application was made. The Tribunal identified that the relevant two-year period prior to the making of the visa application was the period from 29 March 2017 to 28 March 2019.
The Tribunal identified that there were four elements to the definition of ‘main business’ in reg 1.11 of the Regulations that must each be satisfied:
(a)the applicant must have or have had an ownership interest in the business;
(b)the applicant must maintain or have maintained direct and continuous involvement in the management of the business from day-to-day and in making decisions affecting the overall direction and performance of the business;
(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 must meet certain thresholds; and
(d)the business must be a qualifying business, which is defined as an enterprise that has operated for the purpose of making profit through the provision of goods, services or goods and services to the public and is not operated primarily or substantially for the purpose of the speculative or passive investment.
The Tribunal referred to a table in the delegate’s decision setting out the first applicant’s shareholding in Ready Frame Structural from 13 August 2015 to 20 March 2019, which the first applicant confirmed was correct and which the Tribunal observed was consistent with ASIC records. The Tribunal found that for most of the two-year period from 29 March 2017 to 28 March 2019 the first applicant held 10.87% or 12.5% of the shares in the company which operated the business. The first applicant increased his shareholding to 32.56% on 20 March 2019, eight days before lodging his visa application.
The Tribunal found that the first applicant’s business was not operated by a publicly listed company and that the annual turnover of the business exceeded $400,000. This meant that for Ready Frame Structural to qualify as a main business for the first applicant, his ownership interest had to be at least 30% in the relevant period. The Tribunal found that the first applicant’s shareholding was less than 30% for almost all of the two-year period, bar eight days, and therefore the business operated by Ready Frame Structural could not be found to be a main business of the first applicant.
The Tribunal considered the first applicant’s reasons explaining why he did not have a 30% interest in Ready Frame Structural for the whole of the relevant period, his evidence of an ownership interest above 30% before and after the relevant period and the first applicant’s evidence that he made a mistake in allowing his ownership interest to fall below 30%. However, given that the first applicant did not have an ownership interest in a main business at the relevant times, the Tribunal found that it could only affirm the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The applicants filed their application for judicial review on 20 July 2023, meaning that their application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following grounds:
1. AAT’s lack of reasoning and exercising procedural fairness.
2.AAT’s failure to properly consider the provided evidence regarding decreased shareholding.
3. AAT’s failure to consider cumulative ownership of the business(s).
4. AAT’s failure to exercise discretion and authority.
The evidence before the Court relevant to the substantive judicial review application comprises:
(a)the court book filed by the Minister;
(b)affidavits of each of the applicants in similar terms addressing the grounds of application.
While the applicants’ grounds of application are not particularised, the applicants’ affidavits provide sufficient detail to enable the Court and the Minister to properly understand the grounds and I treat the affidavits as providing the necessary particulars.
APPLICATION FOR AN ADJOURNMENT
The parties were advised on 2 October 2023 that the application was listed for hearing on 30 January 2024.
On 29 January 2024 the applicants filed an interlocutory application seeking an adjournment of the hearing. The interlocutory application was heard on 30 January 2024 and after hearing from both parties, I dismissed the application for an adjournment and indicated to the parties that I would give reasons for this decision in this judgment. This section of the judgment comprises my reasons for dismissing the application for an adjournment.
The reasons given by the applicants for seeking the adjournment were set out in an affidavit sworn by the first applicant and included that:
(a)he is the primary caregiver for his wife, and he and his wife both have medical conditions;
(b)his health is compromised due to recent chronic back pain, for which he has undergone cortisone injections, and he is experiencing stress from managing his Court application himself;
(c)his wife is undergoing medical treatment and recently underwent surgery and is not in the best of physical health, requiring the first applicant to assist her in a caring role; and
(d)physical and mental health challenges had placed an overwhelming strain on his resilience and capabilities to attend to the collation of documents, requested information and respective timeframes.
A number of documents were attached to the affidavit including:
(a)an enhanced primary care program referral dated 18 January 2024 for the first applicant to attend a physiotherapist and a covering letter from the first applicant’s general practitioner;
(b)a letter from the first applicant’s general practitioner, dated 21 January 2024, addressed ‘to whom it may concern’ and which reads:
Unfortunately, Mr Wajid Ali is currently finding difficult to cope with his detreiorating physical and psychological health . He is suffering from acute flare up of chronic Lower back pain. Despite of receiving numerous cortisone injections his back pain has not improved much and is impacting his capacity to work and function .Further more, His wife has undergone a surgery and he is the main carer for her . His social stressors are overwhelming at this Stage and he is finding difficult to cope with it .
I have done my assessment and advsied my further management plan
(c)a letter from an obstetrician/gynaecologist dated 3 November 2023 recommending that the second applicant undergo a medical procedure; and
(d)an appointment notice dated 19 December 2023 indicating that the second applicant has a medical appointment with a specialist on 1 February 2024.
At the hearing, the first applicant submitted that he has four or five sessions of physiotherapy to attend, he has a lot of back problems and it hurts when he walks. He made the application for an adjournment because he is under stress, including in relation to his family responsibilities and wishes to be at ease when appearing at the hearing. He submitted that he would like a bit more time to be able to focus on this case. The first applicant submitted that the events that caused him to seek an adjournment are recent and he is seeking an adjournment of approximately one month.
Where an adjournment of a hearing is sought for medical reasons, the Court considers whether the medical evidence provided addresses the critical question of whether, and if so why, the medical condition would prevent the litigant seeking the adjournment from travelling to Court and effectively participating in the Court hearing: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]. In the present case, the medical evidence shows that the first applicant is experiencing lower back pain and stress, but does not state that he is unable to participate in the hearing.
Notwithstanding that the medical evidence did not go so far as to show that the first applicant was unable to attend Court in person, my associate advised the applicants the day before the hearing that, in the light of the first applicant’s chronic back pain, I would allow the applicants to participate in the hearing (including the hearing of the interlocutory application) by Microsoft Teams so that they would not need to attend Court in person. The applicants opted to appear by Microsoft Teams. The first applicant was therefore not required to travel to Court to attend the hearing and the medical evidence did not show that his chronic back pain would prevent him from participating in the hearing.
While I appreciate that the first applicant would prefer to participate in the hearing when he is facing less stress, there is no indication from the medical evidence or his submissions that his stress has rendered him unable to participate in the hearing.
The medical evidence and submissions of the first applicant did not persuade me that an adjournment was required. In these circumstances, and taking into account case management principles and the overarching purpose of the Court’s civil practice and procedure provisions, as set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), I declined to grant the adjournment.
PROCEDURAL FAIRNESS ISSUES ARISING AT THE HEARING
Five of the six applicants appeared at the hearing via Microsoft Teams. The Court arranged for an interpreter to assist the applicants if required, and the first applicant, who spoke more than the other applicants, was assisted by the interpreter. Some of the applicants spoke fluent English and communicated with the Court in English.
The interpreter joined the hearing via Microsoft Teams and provided interpretation during both parties’ submissions in relation to the interlocutory application and both parties’ submissions in chief in relation to the judicial review application. At the commencement of the applicants’ reply submissions, the interpreter muted his microphone and then disconnected from the hearing without explanation. I stood the matter down so that my associate could make inquiries and see if the interpreter could be reconnected to the hearing.
While there was for a time a suggestion that the interpreter may be able to reconnect, the outcome was that the interpreter did not reconnect to the hearing. When the hearing resumed, I explained to the applicants that the interpreter had not reconnected to the hearing and discussed with the applicants options for proceeding. The options I presented to the applicants included that we could adjourn the hearing to another day later in the week so that we could proceed with an interpreter, or that we could proceed with the hearing that day, with those applicants who spoke English assisting those who did not, and the Court allowing the applicants to speak amongst themselves as much as they needed to so that all applicants could understand. The applicants wished to finish the hearing that day, assisting each other as required. I explained to the applicants that I wanted to ensure that the hearing proceeded in a way that was fair to them, and that if at any stage they felt that the hearing was proceeding in a way that was not fair, to let me know. The applicants did not at any stage raise any concerns that the hearing was not proceeding in a fair manner.
In circumstances where the applicants’ reply submissions were presented without the benefit of a National Accreditation Authority for Translators and Interpreters (NAATI) accredited interpreter, I also granted leave to the applicants to file written reply submissions after the hearing. I explained to the applicants that they did not need to file written submissions if they did not wish to, but that they had the option of doing so if there was anything further that they wished to say. The applicants filed written submissions in accordance with the leave I granted, and I address these submissions below.
While is it less than ideal that the applicants made their reply submissions without the assistance of a NAATI accredited interpreted, I have no reason to believe that this prevented the applicants from saying all that they wished to say to the Court in their reply submissions.
CONSIDERATION OF THE APPLICANTS’ JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Tribunal’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1: Did the Tribunal provide insufficient reasoning or deny the applicants procedural fairness?
In his affidavit filed on 20 July 2023, the first applicant provided the following explanation of this ground:
Tribunal also lacked reasoning in exercising procedural fairness in my matter. The Tribunal’s reasoning appeared to be brief and lacked comprehensive analysis. Member did not provide clear explanation or acknowledged our arguments and evidences. This lack of thorough reasoning indicates a failure to meet the requirements of procedural fairness and adequately address our case.
…
Insufficient reasoning: The Tribunal’s lack of thorough reasoning indicated a failure to meet the requirements of procedural fairness and adequately address our case.
Similar explanations are provided in the affidavits of the other applicants.
It can be seen from this explanation that the applicants’ ground broadly raises questions relating to whether the Tribunal denied the applicants procedural fairness and the Tribunal’s obligation to give reasons. To the extent that the ground suggests that the Tribunal did not consider the applicants’ arguments and evidence, it overlaps with grounds 2 and 3 below and is more comprehensively addressed in relation to those grounds.
The Tribunal’s procedural fairness obligations are largely set out in Division 5 of Part 5 of the Migration Act. The provisions in this Division comprise an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with: s 357A of the Migration Act.
I accept the Minister’s submission that the Tribunal complied with its procedural fairness obligations in this matter.
In particular, I observe that the Tribunal invited the applicants to attend a hearing to give evidence and present arguments, as it was required to do pursuant to s 360 of the Migration Act. I have reviewed the notice of the invitation to attend the hearing and I am satisfied that it complies with the requirements of s 360A of the Migration Act. The notice contained the information it was required to contain, was provided to the applicants by email at the email address they provided to the Tribunal for the purposes of the review, and the period of notice given exceeded the period prescribed by reg 4.21(4) of the Regulations, although the hearing date was subsequently postponed at the request of the applicants.
I am also satisfied that the dispositive issues before the Tribunal were the same as the dispositive issues before the delegate and therefore the applicants were on notice of the dispositive issues.
The information relied on by the Tribunal in reaching its decision was information provided by the applicants, and there was no information in relation to which the Tribunal was required to comply with the requirements of s 359A.
The applicants did request that the Tribunal take evidence from a witness who was a business partner of the first applicant. The Tribunal was required to consider the applicants’ request but was not required to comply with it: s 361(2) and (3) of the Migration Act. The Tribunal recorded in its reasons that the first applicant had requested that the Tribunal take evidence from his business partner. The Tribunal declined to take evidence from the business partner because it was firmly of the view that there was no evidence she could give that would make a difference to its decision, noting that its decision was based on facts that were not in contention and the application of the law to those facts. By having regard to the applicants’ request to take evidence from the business partner the Tribunal complied with its procedural fairness obligations, and its reasons disclose an intelligible justification for declining to take evidence from the business partner.
I then turn to the Tribunal’s obligation to give reasons. Pursuant to s 368(1) of the Migration Act, the Tribunal was required to make a written statement that, amongst other things, sets out the reasons for the Tribunal’s decision, sets out the findings on any material questions of fact and refers to the evidence or other material on which the findings of fact were based.
I accept the Minister’s submissions that the Tribunal’s reasons comply with the requirements set out in s 368(1) of the Migration Act. The Tribunal reasons clearly set out the criteria it applied, the findings it made in relation to those criteria and the evidence upon which those findings were based. Its reasons are comprehensive insofar as they address the criteria that it found the first applicant was required to, but did not, satisfy.
As I understand the applicants’ complaint, it is that the Tribunal did not address in sufficient detail the applicants’ explanations as to why they did not meet the relevant criteria. However, the Tribunal reasons show that the Tribunal was of the view that it could not grant the applicants visas if they did not meet the criteria for the visas (which is correct) and that any explanation as to why they did not meet the criteria could not affect the outcome. The Tribunal was not required to address in its reasons a line by line refutation of the evidence before it (see, for example, Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55 at [31]), particularly in relation to matters that were not directly relevant to the decision that it made. There is nothing in the Tribunal reasons to indicate that the Tribunal denied the applicants procedural fairness or that it failed to comply with its obligations under s 368 of the Migration Act.
Ground 1 does not establish jurisdictional error.
Ground 2: Did the Tribunal fail to properly consider the evidence provided by the applicants regarding their decreased shareholding in the main business?
In his affidavit, the first applicant explained that:
AAT did not consider further evidence provided in support of our business visa review. Tribunal did not adequately consider the evidence provided by us regarding the decrease in shareholding and the reasons behind it. I faced difficulties transferring funds from overseas (Pakistan), which directly impacted the shareholding in the nominated main business. We provided evidence supporting this claim and explaining why the shareholding decreased during the two-year period. Wajid’s intention was to maintain a shareholding above the required threshold, but due to the challenges in transferring funds, the shares decreased. However, the AAT member failed to adequately consider this relevant evidence and the circumstances surrounding the decrease in shareholding, which could have potentially justified the temporary decrease in ownership interest, but the Tribunal focused solely on the shareholding percentages without giving proper consideration to the evidence provided.
Again, similar explanations are provided in the affidavits of the other applicants.
At the hearing, the applicants submitted that they provided a lot of evidence relating to why the first applicant’s shareholding in Ready Frame Structural was reduced, and they believe the Tribunal did not consider that evidence.
The applicants did not identify, with reference to the documents in the court book, the specific evidence that they believe the Tribunal failed to consider. Based on my review of the court book, it is apparent that the first applicant provided a letter to the Department and a submission to the Tribunal, which addressed, amongst other things, the activities of the business, the applicant’s shareholding in the business at various times, the reasons the applicant’s shareholding was below 30% in 2017 and 2018 and that the lack of migration advice received by the applicants. Supporting documents accompanied both the letter and submission.
The Tribunal referred to the letter and the submission in its reasons. The Tribunal at [27] of its reasons referred to the submission to the Tribunal and the first applicant’s submission that he did not get efficient migration assistance and was not able to understand the requirements of the visa. The Tribunal at [28] of its reasons referred to the first applicant’s shareholding in Ready Frame Structural at various times and then proceeded at [29] and [30]:
29.Returning to the applicant’s written submission, he stated that he invested some of his shares in a display home used to establish the business’s reputation. He did not realise how this would impact his later visa application.
30.Based on a letter provided to the Department by the applicant’s accountant, and the applicant’s evidence, he was unable to get funds transferred from Pakistan at the time and negotiated to use company funds to finance the building of the display home. The display home later became the applicant’s residence.
It can be seen from this that the Tribunal identified and acknowledged the first applicant’s evidence and submission as to the reasons for the decrease in his shareholding in Ready Frame Structural, including that he had difficulty transferring funds from Pakistan.
The Tribunal then, at [32] of its reasons, expressed the view that the reason why the first applicant reduced his shareholding when he did was not of assistance to the first applicant as, to be a main business of the first applicant, he (and his spouse or partner) must have had at least 30% ownership during the relevant period.
I am satisfied that the Tribunal clearly considered the applicants’ evidence regarding the reasons for the decrease in the shareholding. The Tribunal’s consideration of this evidence amounted to an acknowledgement of the evidence and a finding that the evidence did not assist the applicants to meet the criteria for the visa. This consideration is sufficient in the context of this case.
Ground 2 does not establish jurisdictional error.
Ground 3: Did the Tribunal fail to consider the applicants’ cumulative business ownership?
In his affidavit, the first applicant explained that:
AAT disregarded cumulative ownership of nominated businesses.
During hearing, we argued that while our shareholding in Ready Frame Structural WA Pty Ltd may have been below the required threshold during the two-year period, but we held ownership interests exceeding the threshold before and after that period. The Tribunal dismissed this argument without providing a proper explanation or considering the possibility of cumulative ownership.
This evidently indicates a tribunal’s failure to consider relevant factors and alternative interpretation of the requirements.
Again, similar explanations are provided in the affidavits of the other applicants.
At the hearing before the Court, the applicants submitted that in over seven years, there were only two years during which the shareholding of the first applicant in Ready Frame Structural was down, because the applicants could not get money from Pakistan.
In interpreting this ground, as I understand the applicants’ case, the applicants use the phrase ‘cumulative business ownership’ to refer to the value of their shareholding in Ready Frame Structural over the life of the company and not just in the relevant two-year period. The term ‘cumulative business ownership’ is not used to refer to the combined ownership value of more than one applicant, and the evidence before the Court suggests that only the first applicant held shares in Ready Frame Structural.
The Tribunal had evidence before it of the first applicant’s shareholding in Ready Frame Structural at various points in time and recorded this at [28] of its reasons, where it said:
The Tribunal notes that the applicant’s shareholding was 40.02% at that time [when the company was started on 13 August 2015] and on 27 October 2015, it increased to 44.02%. On 13 March 2016 his shareholding reduced to 27.50%, then 23.91% and on 26 September 2016 to 10.87% which was later corrected to 12.50%. As already recorded, shortly before the visa application was lodged, his shareholding increased to 32.56%.
The Tribunal acknowledged the first applicant’s request that the Tribunal take into account that his shareholding was above the relevant threshold at other times before and after the relevant period, but found that this did not assist him to meet the statutory criteria. This is reflected in the Tribunal’s reasons at [31] and [32], where the Tribunal said:
31.In his submission the applicant stated that apart from 2017 and 2018, between 2015 and 2022, his business shares were consistently above the 30% threshold. He made a similar point at the hearing, that before and after the two-year period he owned more than 30% of the shares. He asked if that could be taken into account.
32.Unfortunately, this does not assist the applicant as the requirement is, for a business to be a main business of the applicant, he (and his spouse or partner) must have had at least 30% ownership during the relevant two-year period. The fact he may have had more than a 30% shareholding either side of that two-year period does not assist him…
For the reasons discussed in relation to ground 4 below, the Tribunal was required to consider whether the applicants met the criteria for the visa for which they applied. If the Tribunal was not satisfied that they met the criteria, it was required to affirm the delegate’s decision.
One of the criteria that the first applicant was required to satisfy was the criterion in cl 892.211(1) in Schedule 2 to the Regulations, which required him to have had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application for the business skills visa was made. I accept the Minister’s submission that this clause clearly defines the relevant period that must be considered when determining whether the first applicant met the requirements of cl 892.211, and that it was not open to the Tribunal to have regard to the first applicant’s shareholding at times outside of the relevant period in determining whether he met the requirements of cl 892.211(1).
I do not accept the applicants’ submission, as set out in their affidavits, that the Tribunal dismissed their argument without providing a proper explanation or considering the possibility of ‘cumulative ownership’. The Tribunal clearly and correctly explained in its reasons that it had to have regard to the first applicant’s ownership during the relevant period and that his ownership at other times could not assist him to meet the relevant criterion.
Ground 3 is not established.
Ground 4: Did the Tribunal fail to exercise discretion and authority?
In his affidavit, the first applicant explained that:
Lack of discretion and authority: The Tribunal stated that it had no discretion in the matter and that the decision must be made strictly based on whether the criteria were met or not. When in fact Tribunal holds discretionary powers and should consider the individual circumstances case-by-case. By dismissing any discretion outright, the Tribunal failed to properly exercise its authority.
Again, similar explanations are provided in the affidavits of the other applicants.
This essentially amounts to a submission that the Tribunal had some sort of discretionary power to grant the applicants a visa even if they did not satisfy the requirements for the grant of the visa, and that the Tribunal should have exercised that power in the present case.
The ground must fail as the Tribunal had no discretionary power to grant the applicants business skills visas, or any other types of visas, if they did not meet the criteria for the grant of the business skills visas.
In conducting the review, the Tribunal was able to exercise all of the powers and discretions that were conferred by the Migration Act on the person who made the reviewable decision: s 349(1) of the Migration Act. This includes s 65 of the Migration Act which, relevant to this case, required the decision-maker to refuse to grant the visa if the decision-maker was not satisfied that all criteria prescribed by the Migration Act and Regulations were satisfied. The Tribunal did not have any power to grant the applicants business skills visas if it was not satisfied that they met the criteria for those visas.
In the present case, the first applicant was required to meet the criterion in cl 892.211(1) of the Regulations. That clause provides:
The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
The term ‘ownership interest’ is defined in s 134(10) of the Migration Act in the following way:
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
The term ‘main business’ is defined in the reg 1.11 of the Regulations 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:
(i)if the business is operated by a publicly listed company—at least 10% of the total value of the business; or
(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; or
(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.
(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.
As can be seen from the Tribunal decision, the Tribunal was not satisfied that the first applicant satisfied the requirements of cl 892.211(1) because his ownership interest in Ready Frame Structural during most of the two years immediately before the visa application was made was below the level required for it to qualify as a ‘main business’. Having found that the applicant did not meet the one of the criteria prescribed by the Regulations, the Tribunal had no option but to affirm the delegate’s decision.
The Tribunal recognised this in its decision, where it acknowledged the circumstances of the applicants, but found that, given its findings, it could only affirm the delegate’s decision. The Tribunal said at [34], [35] and [37] of its reasons:
34.The applicant wrote that he did not intend to be non-compliant with the visa criteria. He made a similar point at the hearing, that he had made a mistake. The Tribunal accepts this is the case. However, as the applicant did not and does not have an ownership interest in a main business at the relevant times, the Tribunal can only affirm the decision under review.
35.The Tribunal notes that the applicant’s written submission included other information regarding, for example, his interest in a company overseas and the difficulties he faced in getting funds transferred to Australia. None of this other information assists the applicant in this matter and the Tribunal will not record said information in detail here as it is not relevant. The Tribunal has no discretion in this matter. Either the criteria are met or they are not.
…
37.The applicant and Mrs Praveen also expressed their concern as to how this would affect them and their children if they had to return to Pakistan. The Tribunal is not unsympathetic to their situation but can only make a decision consistent with the legislation.
The Tribunal’s reasons do not disclose any jurisdictional error as alleged by the applicants and ground 4 is not established.
Other submissions advanced by the applicants
In the applicants’ reply submissions filed after the hearing, the first applicant submitted:
I, Wajid Ali … am the main applicant. I respectfully submit this supporting statement to provide additional context and clarity on my circumstances.
I arrived in Australia in November 2014 with my family, seeking a better life for us. To achieve this, I sold my established business in Pakistan and invested the proceeds in Australia, intending to settle down and contribute to the community.
Upon arrival, I initiated a new business named Ready Frame Structural Pty Ltd (RFS), a unique venture in the construction sector. With the collective effort of my family, we successfully grew the business to a competitive stage. In the process, I unintentionally transferred funds from the equity to finance a display home, a decision that ultimately proved beneficial for the business.
However, it came to my attention later that I needed to maintain a certain shareholding percentage for a specified period. Realizing this, I planned a trip to Pakistan to sell my property and bring funds to Australia for reinvestment. I encountered difficulties in transferring funds between 2018-2019, a matter for which I provided evidence to the AAT member.
In 2019, I successfully transferred the funds, reinvested, and the business thrived. RFS acquired Better Homes WA Pty Ltd, expanding our operations. We employed more staff to handle large-scale projects scheduled for 2020-2021. Unfortunately, the COVID-19 pandemic disrupted our business. Unfavourable market conditions, rising material costs, and labour shortages led to the closure of RFS, resulting in liquidation in late 2022.
Since my arrival in Australia, I have consistently operated a business, and I began a new venture in 2021 before RFS went into liquidation, maintaining 100% ownership. This business is currently thriving. While the AAT member noted RFS’s liquidation in 2022, it’s essential to recognise that I initiated a new business in 2021.
Had I known that funding a display home would have significant consequences for my family’s future, I would not have pursued that expansion. I have requested the AAT member to consider my shareholding from any two consecutive years between 2015-2022, as I maintained over 30% equity for five years, not just the two years the department is seeking. This unintentional mistake has placed immense stress on my family for the last three years. My wife is battling depression due to uncertainty about our future.
Australia is now our home, and we have sold everything in Pakistan, returning is not an option. My children are studying and have worked hard to establish themselves in the past few years. I believe we deserve another chance and seek natural justice…
I express sincere gratitude for your consideration and understanding of our unique circumstances. Your decision will not only impact our future but will also shape the narrative of a family earnestly seeking stability and contribution in this adopted land.
The applicants’ written submission is consistent with, and addresses similar matters to, the matters raised in the applicants’ oral reply submissions to the Court.
The submission does not assert any jurisdictional error in the Tribunal decision and does not establish jurisdictional error in the Tribunal decision. The submission essentially amounts to an explanation of the applicants’ circumstances and an implicit request for a decision to be made based on compassionate grounds.
As I explained to the applicants at the hearing, and above in this judgment, the Court does not have any power to grant them a visa and the role of the Court is limited to reviewing the Tribunal decision to determine whether the Tribunal made a jurisdictional error in reaching its decision. I have not identified any jurisdictional error in the Tribunal decision. In those circumstances, I cannot grant any relief to the applicants.
That does not mean that the Court is unsympathetic to the applicants. Rather, it is an acknowledgement of the limited role of the Court. The applicants may wish to seek independent advice in relation to their visa options.
CONCLUSION
I have found that the applicants have not established that the Tribunal decision is affected by jurisdictional error. It follows that the application for judicial review is dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 February 2024
SCHEDULE OF PARTIES
PEG 149 of 2023 Applicants
Fourth Applicant:
JAHANZAIB KHAN
Fifth Applicant:
HASSAN ZAIB KHAN
Sixth Applicant:
SHAHZAIB KHAN
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