Cheng v Minister for Immigration - [2012] FMCA 911

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 911

MIGRATION – Review of Migration Review Tribunal decision – refusal of business skills residence visa – criteria based on business turnover – Tribunal finding that the applicant’s business did not satisfy the turnover criterion because it was in substance an agent and only entitled to commission income – whether the Tribunal’s understanding was correct in law or fact considered.

WORDS AND PHRASES – “turnover”.

Migration Regulations 1994 (Cth)

AnvMinister for Immigration (2007) 160 FCR 480
Aris-Bainbridge v Turner Manufacturing Ltd [1950] 2 All ER 1178
Attorney General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Collector of Customs v Agfa-Geveart Ltd (1996) 186 CLR 389
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens
Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
El Ess v Minister for Immigration (2004) 142 FCR 43
Hope v Bathurst City Council (1980) 144 CLR 1
International Harvester Company of Australia Pty Ltd v Carrigan’s Hazeldene
Pastoral Company (1958) 100 CLR 644
J. Gliksten & Sons v Green [1929] AC 381
Kennedy v De Trafford [1897] AC 180 at 188
Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289
Pinkstone v R (2004) 219 CLR 444
Scott v Davis (2000) 204 CLR 333
Soegianto v Minister for Immigration [2001] FCA 1612
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Voxson Sales Pty Ltd v Collector of Customs [1993] FCA 609

First Applicant:

JU CHEN CHENG

Second Applicant:

HUNG CHANG CHEN

Third Applicant:

POYU CHEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 933 of 2012

Judgment of:

Driver FM

Hearing date:

27 September 2012

Delivered at:

Sydney

Delivered on:

16 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The further amended application filed on 27 September 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 933 of 2012

JU CHEN CHENG

First Applicant

HUNG CHANG CHEN

Second Applicant

POYU CHEN

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision is dated 2 April 2012 on its cover and was certified on behalf of the Tribunal’s district registrar the following day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Business Skills (Residence) visas.
The following statement of background facts is derived from the submissions of the parties.
On 19 May 2009, the first applicant (Mrs Cheng) lodged an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 911
Decision Date: 16 November 2012

CaseChat Overview and Summary

The case of Cheng v Minister for Immigration involved a challenge to the refusal of a business skills residence visa. The applicant, Cheng, contested the decision of the Migration Review Tribunal which had found that his business, Nisi Group, did not satisfy the turnover criterion for the visa because it operated as an agent and only derived commission income. The Federal Court was tasked with determining whether the Tribunal’s interpretation of “turnover” was correct in law and fact.

The central legal issue before the court was the interpretation of the term “turnover” in the context of the Migration Regulations. Specifically, the court needed to decide whether the Tribunal was correct in its finding that Nisi Group's business activities constituted commission income rather than turnover, and thus did not meet the visa criteria. The court also had to consider whether the Tribunal's conclusion that Nisi Group acted as an agent for EMT in its dealings with Symex was legally sound.

The court held that the term “turnover” did not have a specific legal definition in the context of the Migration Regulations. Therefore, its ordinary meaning was a question of fact for the Tribunal to determine. The court found that the Tribunal had appropriately considered the ordinary meaning of “turnover” and concluded that the term referred to the gross income derived from business activities. The court further determined that the Tribunal's finding that Nisi Group acted as an agent for EMT and only derived commission income was supported by the evidence. As such, the Tribunal’s decision was neither legally flawed nor factually incorrect.

The final order of the court was that the further amended application filed by the applicant was dismissed. The court upheld the Tribunal’s decision that Nisi Group did not meet the turnover criterion for the business skills residence visa.

Orders

Orders of the court

The further amended application filed on 27 September 2012 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence in the present case is that:a)contracts did exist between Symex and Nisi Group, as evidenced by, for example the commercial invoice issued by Symex to Nisi Group[31] and the purchase order issued by Nisi Group to Symex[32]; b)contracts also existed between Nisi Group and EMT, as evidenced by invoices issued by Nisi Group to EMT[33];c)there was no contract, and indeed no evidence of a contract, between EMT and Symex;d)Symex’s action, in the case of non payment for the stearic acid shipped to Taiwan was against Nisi Group – the “buyer” noted on its invoices – and not against EMT.[31] at CB 345[32] at CB 359[33] at CB 213 and 611 The applicants submit that the Tribunal’s conception of an “agent” was thus legally flawed. It did not consider whether there was any legal relationship between EMT and Symex, and it did not consider whether there was such a relationship between Nisi Group and either or both the other parties. Those errors are said to have fatally infected the Tribunal’s consideration of Nisi Group’s turnover. The first point to consider is that the applicants do not cavil (and nor could they) with the Tribunal’s conclusion that where a business operates as an agent for another person, as opposed to operating as merchant in its own right, only the “service revenue” or “commission” that was derived can be considered as part of that business’ turnover. Secondly, it is clear from the particulars of the asserted ground of review that the applicants’ real complaint concerns the Tribunal’s finding that Nisi Group acted as an “agent” for EMT in its dealings with Symex. Before considering the applicants’ ground of review, it is worth recalling the structure of the Tribunal’s reasons. The Tribunal undertook two enquires that were critical to its overall review. First, the Tribunal was required to identify the meaning of the word “turnover” in circumstances where a business operates as an agent for another person, as opposed to operating as a merchant in its own right[34]. Having done so, the Tribunal was then required to consider whether, having regard to the nature of Nisi Group’s dealings with EMT, the income derived from such dealings met the description of “turnover”[35]. The Minister contends that the two questions for the Tribunal set out above were questions of fact and the findings made by the Tribunal were entirely open to it. [34] CB 633-634 [40]-[42][35] CB 635-636 [43]-[48] Although the meaning of a technical legal term is a question of law, the ordinary meaning of a word or its non-legal technical meaning is a question of fact[36]. The word “turnover” has not acquired a legal meaning and the applicant has not suggested that the word “turnover” has acquired a secondary meaning through trade usage that differs from its ordinary meaning[37]. Accordingly, in the absence of a definition of “turnover” in the Migration Regulations, the ordinary meaning of the word “turnover”, and the consideration of which amounts fall within the expression “turnover” in the particular context, was a question of fact to be decided by the Tribunal[38]. [36] Collector of Customs v Agfa-Geveart Ltd (1996) 186 CLR 389 at 395[37] Voxson Sales Pty Ltd v Collector of Customs [1993] FCA 609 at [34][38] Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 299 per Hill J

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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