Chand v Minister for Immigration
[2006] FMCA 1374
•15 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAND & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1374 |
| MIGRATION − Business visa − MRT − whether Tribunal failed to consider information requested by Tribunal − whether Tribunal failed to consider the value of Fiji assets − whether Tribunal applied to correct test for transfer of assets to Australia. |
| Migration Act 1958, s.359 Migration Regulations 1994 (Cth) Schedule 2 , 457(7A) |
| Abebe v The Commonwealth [1999] 162 CLR 510 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194 Perera v Minister for Immigration & Multicultural Affairs [2002] FCA 743 Parisi v Minister for Immigration & Multicultural Affairs [2005] FMCA 218 |
| Applicant: | SUSHIL CHAND & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
| File Number: | SYG 1179 of 2006 |
| Judgment of: | Phipps FM |
| Hearing date: | 4 August 2006 |
| Date of Last Submission: | 4 August 2006 |
| Delivered at: | Dandenong |
| Delivered on: | 15 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Troy Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on the 24 April 2006 be dismissed.
The applicant pay the first respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
SYG 1179 of 2006
| SUSHIL CHAND & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for prerogative writs to set aside and remit a decision of the Migration Review Tribunal dated 10 April 2006.
The applicants are husband, wife and two children. The primary applicant applied for a Temporary Business Entry (Class UC) Visa on 21 June 2004. The first respondent's delegate’s decision to refuse the grant was made on 23 December 2004. For convenience, the husband, the primary applicant, is described as the applicant in this judgment
The requirements for the visa are set out in part 457 of schedule two of the Migration Regulations 1994 (Cth). In summary, the requirements for the visa are that the applicant has been conducting business in Australia as a principle for at least 15 months, the business is of benefit to Australia, the applicant has a genuine and realistic commitment to the business, a business character test, and that the applicant has net assets of not less than AUD250,000 or a lesser amount that is adequate to conduct business.
The Tribunal was satisfied that all the requirements were met except the value of net assets. The requirement, contained in
part 457(7A)(c)(iv), is:
the applicant has net assets of:
(A) not less than AUD250,000; or
(B) a lesser amount that is adequate;
to conduct the business;
The applicant is a national of Fiji. He was granted a subclass 457 visa in Fiji on 29 June 2000 and entered Australia on that visa on
14 October 2000. The visa was valid until 29 June 2004. He made the current application on 21 June 2004.
The Tribunal was satisfied that from 1 March 2003 to 21 June 2004 the primary applicant had been conducting a freight transport business as principal, either as a sole trader or through a corporation, Galaxy Trader Pty Ltd, owned by the primary applicant and his wife. It was satisfied that he had a genuine and realistic commitment to maintain ownership in the interest. It was not satisfied that the primary applicant satisfied the requirement to have available $250,000 for the conduct of the business or a lesser amount as necessary.
The applicant alleges these jurisdictional errors:
Breach of section 359 (1)
Section 359 of the Migration Act 1958 requires the Tribunal to give an applicant written notice of any matters which might be the reason or part of the reason for affirming the decision under review.
The Tribunal wrote to the primary applicant inviting him to submit a number of documents, which included confirmation of the income he received from the business in Fiji on a monthly basis.
The applicant claimed an interest in a bus company in Fiji which he said was valued at $350,000. The Tribunal accepted that he was receiving monthly remittances from Fiji of approximately $2260 which came from this business.
The applicant argues that when making its finding that the applicants did not have assets of $250,000 it did not take into account, and did not refer to, these monthly remittances. The submission referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97], Perera v Minister for Immigration & Multicultural Affairs [2002] FCA 743 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194.
The argument is that, having asked for information and received it, the Tribunal did not take it into account. The answer to the argument is that the Tribunal did take it into account, but not on the question of whether the applicant had assets of $250,000, but on the question of whether for a period of at least 15 months the primary applicant had been conducting a business of freight transport as a principal.
On this issue, the Tribunal refers to the income of the business as showing considerable fluctuation. Its reference to the income from Fiji is at [39]:
The evidence of the purchase of the truck in July 2001 also lends weight to his claim that he was operating the business from the date, although at times it was not profitable and the primary visa applicant was also receiving additional income from the business in Fiji.
The Tribunal, in its consideration of the applicant's assets, makes no reference to the income from Fiji. That is understandable.
The primary applicant's evidence and documents presented to the Tribunal showed little money in bank accounts at the time of the hearing. Therefore, the applicant did not put forward a case that the remittances from Fiji had been used to build up a capital sum other than the specific items put forward.
The answer to the submission is that the Tribunal did not take into account the monthly remittances in considering the applicant's assets at the time of the hearing because those remittances had not been turned into a capital asset other than the specific items put forward by the applicant.
The first respondent's submission refers to the decision of the Full Court of the Federal Court in Applicant WAEE which says that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant. Nor should a Tribunal's reasons be scrutinised "with an eye keenly attuned to error"(at [46]).
These principles are not necessary in this case. The Tribunal has not stated specifically that the monthly payments do not assist in determining the primary applicant's assets. The reason for this is clear. The primary applicant did not put in evidence or submissions to the Tribunal that the monthly payments had produced an accumulation of assets.
Consideration of Fiji assets
The applicant argues that the Tribunal failed to make a specific finding about the primary applicant's share of assets in Fiji and that the Tribunal failed to consider whether there were adequate assets to conduct the business but only focused on the value of the financial resources.
The Tribunal said:
The primary visa applicant claimed he had assets to the value of $375,000 in the bus business in Fiji but has not been able to demonstrate to the Tribunal that any of this amount is available for the conduct of the business in Australia since the sale of the business has been deferred. He is not the sole proprietor of the bus business and cannot dispose of assets without consent of other shareholders. He states that he could obtain a loan if required but no further evidence was provided of this nor of the loan in Fiji being made available to conduct the business in Australia. The Tribunal notes that the financial statements provided to it for the bus company in Fiji are more than 12 months old and thus may not provide an accurate current indication of the state of the business.
Under policy, applicants are expected to be able to demonstrate how they plan to make the assets available to the business and that they can legally transfer the assets to Australia. Accordingly the Tribunal is not satisfied that this claimed asset is available for transfer for the business in Australia.
The applicant argues that the Tribunal failed to consider a relevant issue, that is, the actual value of the bus business. There are two answers to this argument. The first basis of the Tribunal's decision about the relevance of the Fiji assets is the requirement that the overseas assets must be capable of being available to the business in Australia. The Tribunal's finding is that the applicant has not demonstrated that the assets in Fiji, his share in the bus business, can be made available in Australia, whatever its value. The value of the business is irrelevant to this reasoning.
The second is that in any event the Tribunal was not satisfied that the assets could be made available in Australia, nor was it satisfied about the value. These two matters, the subject of other grounds of alleged jurisdictional error, are dealt with later in this judgement.
The applicant argues that the Tribunal failed to consider whether there were adequate assets to conduct the business and only focused on the value of the financial resources. The applicant's argument refers to Parisi v Minister for Immigration & Multicultural Affairs [2005] FMCA 218.
The Tribunal accepted that the applicant had assets of $159,000 being the jewellery ($10,000), furniture ($10,000), a car ($7,000), his equity in Galaxy ($6,012) and his loan to the company ($126,028).
The Tribunal said that although the applicant is permitted to have a lesser amount if it is adequate to conduct the business, the primary applicant had not advanced any claims that a lesser amount is required. The Tribunal referred to the policy guidelines. It said that the applicant had not produced a business plan to show that he intends to run the business on a lesser amount.The argument can only succeed if the Tribunal has not considered whether a lesser amount is adequate. The Tribunal has considered the issue. At best, the applicant's argument is that the Tribunal has not given it sufficient consideration, but that is different to saying it has given no consideration. The Tribunal has considered the issue and so the applicant's argument fails.
Failure to consider bus company statement for 2004 or ask for a later statement
The applicant's submission is that the Tribunal did not consider the bus company statement for the year end 31 December 2004. At the hearing, the applicant confirmed that his family still owned the bus company in Fiji and that he was planning to sell part of it.
He estimated that the business was worth about $350,000.
In the passage referred to above the Tribunal said that the financial statement for the bus company provided (the year ended 31 December 2004) was more than 12 months old and might not provide an accurate current indication of the business.
The hearing was on 21 December 2005. The Tribunal member discussed the accounts with the primary applicant. At that stage the 2003 accounts were available, and the primary applicant said he could obtain the 2004 accounts. The Tribunal member noted that the financial year in Fiji ends on December, so obviously the 2005 accounts were not then available.
A letter dated 19 January 2006 from the primary applicant's agent said that the applicant is pushing to get the 2005 financials to the department by mid-February 2006. This letter was in response to a letter from the Tribunal dated 23 December 2005. The Tribunal made the primary applicant aware of the relevance of the statements. It is for an applicant to present the evidence upon which he seeks to rely in support of his case and not the task of the Tribunal to find the evidence: Abebe v The Commonwealth [1999] 162 CLR 510.
When the Tribunal says that the statement is more than 12 months old it is doing no more than describing the evidence before it.
The applicant had not provided subsequent statements and so there was no obligation for the Tribunal to consider them. It had no responsibility to seek up-to-date information.
The Tribunal did not discuss the 2004 accounts in detail, but it did not need to.
Whether assets could be transferred to Australia
The applicant argues that the Tribunal made a jurisdictional error as it applied a stricter test than is required about the ability to transfer an asset to Australia. The submission is that the test is not that the asset is sold and ready for use in Australia but whether the visa applicant has the "ability to alienate and transfer the asset" (Policy Guidelines on Business Ownership and Assets clause 36.3).
The submission concentrates on the section of the passage from the Tribunal's reasons set out above in which the Tribunal says that the primary applicant has not been able to demonstrate that the use of the bus business asset from Fiji is available for conduct of the business in Australia. The Tribunal said that this was because the sale of the business has been deferred; the primary applicant is not the sole proprietor of the bus business and cannot dispose of assets without consent of other shareholders.
The applicant’s submission does not refer to the Tribunal's reasons where it says "Under policy, applicants are expected to be able to demonstrate how they plan to make the assets available to the business and that they can legally transfer the assets to Australia”.
This correctly states the test. The passage which the applicant's submission concentrates on are set out in the Tribunal's analysis why this test has not been satisfied. The Tribunal does not set out in this passage the test to be met.
The Tribunal says that the primary applicant has not shown the ability to alienate and transfer the asset to Australia because the sale of the bus business has been deferred, he is not the sole proprietor and cannot dispose of assets without consent of other shareholders. The primary applicant had told the Tribunal he could obtain a loan, but the Tribunal said that no further evidence was provided of the loan in Fiji being made available to conduct business in Australia. The Tribunal has applied the correct test.
The applicants have not shown any jurisdictional error by the Tribunal.
The application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 15 September 2006
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