Cheng v Minister for Immigration

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.