Chiang v Minister for Immigration and Multicultural Affairs
[2001] FCA 542
•24 APRIL 2001
FEDERAL COURT OF AUSTRALIA
Chiang v Minister for Immigration and Multicultural Affairs
[2001] FCA 542PING CHIA CHIANG, PUI YEE CHEUNG, HAN GUANG CHIANG AND HAN HUA JENNY CHIANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NORTH J
24 APRIL 2001
MELBOUNRE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 936 OF 2000
BETWEEN:
PING CHIA CHIANG
FIRST APPLICANTPUI YEE CHEUNG
SECOND APPLICANTHAN GUANG CHIANG
THIRD APPLICANTHAN HUA JENNY CHIANG
FOURTH APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
24 APRIL 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicants pay the respondent’s costs of and incidental to the
application.Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 936 OF 2000
BETWEEN:
PING CHIA CHIANG
FIRST APPLICANTPUI YEE CHEUNG
SECOND APPLICANTHAN GUANG CHIANG
THIRD APPLICANTHAN HUA JENNY CHIANG
FOURTH APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
NORTH J
DATE:
24 APRIL 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
1Before the court is an application to review a decision of the Migration Review Tribunal (the Tribunal) made on 9 November 2000. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (the respondent) to refuse to grant the first applicant a Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay)). The second to fourth applicants are respectively the wife, son and daughter of the first applicant. The Tribunal found that as the first applicant did not meet the primary requirements for the grant of a subclass 457 visa, the first applicant’s family members were also ineligible, pursuant to subclause 457.321 of schedule 2 of the Migration Regulations 1994 (the Regulations).
BACKGROUND AND CLAIMS
Before the Tribunal, the first applicant relied upon a number of business ventures in order to satisfy the requirements for the particular visa. The grounds of review, however, concern only one business venture, namely a coffee shop business trading as Kitch‘n’Kaboodle. The requirements of the Regulations for the relevant visa are contained in subclause 457.223(7)(a) which provides that:
“(7)The applicant meets the requirements of this subclause if the Minister is satisfied that:
(a)the applicant proposes to develop in Australia a business activity that will be: …
(ii) of benefit to Australia …”
The concept of “benefit to Australia” is defined in subclause 457.111(2) which relevantly states:
“(2)For the purposes of this Part, a business activity is of benefit to Australia if:
(a)the conduct of the activity contributes to:
(i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; and
(b)the operator of the business:…
(ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia.”
It should be noted that the requirements in subclause 457.111(2)(a) and (b) are cumulative.
ARGUMENTS ON THE REVIEW
One ground of review relied upon by the first applicant concerns the Tribunal’s finding on the question of training Australian citizens and permanent residents in the business in Australia as required by subclause 457.111(2)(b)(ii).
The Tribunal’s finding on that issue was as follows:
“The visa applicant said that the training provided in respect of the coffee shop is informal and confined to a low level. The declarations by two persons employed in the coffee shop appears to confirm this. The Tribunal finds that the visa applicant has not satisfied the criteria contained in paragraph 457.112(2)(b).”
Mr Bravender‑Coyle, who appeared as counsel on behalf of the applicants, contended that the Tribunal erred in law within the meaning of s 476(1)(e) of the Migration Act 1958 (Cth) (the Act) in its treatment of this issue. He contended that the Tribunal applied the wrong test in determining the question of training in subclause 457.111(2)(b)(ii). He submitted that the Tribunal placed a “gloss” on the requirement of the subclause by apparently requiring that the training which had to be shown had a degree of formality or be more than at a low level.
It is true that the finding of the Tribunal on this issue is cryptic. The explanation for this treatment of the subject follows from the way in which the case was put before the Tribunal. The evidence before the Tribunal on the question of training was contained in declarations by two employees of the coffee shop, in part of a written statement made by the applicant and in short evidence given by the first applicant to the Tribunal. In relation to this last source, it should also be noted that the evidence came at the very end of the hearing and was elicited by questioning by the Tribunal member, despite the fact that the applicants were represented by an apparently legally qualified migration agent at the Tribunal hearing.
The evidence from the employees of the business on this issue was short in the extreme. Eliza Johnston declared that:
“They [the applicant and his wife] have provided me with training in improving my skills in providing services to customers.”
Sivanna Grosso made a declaration in exactly the same terms.
The first applicant’s evidence before the Tribunal on this issue was also very brief. In the closing moments of the hearing there was the following exchange with the Tribunal member.
“MR THOMAS [the Tribunal member]: I do have one further question. The last criteria is that the operator of the business which is yourself has a record of training.
INTERPRETER: Because the coffee shop is not a large business in terms of training. Mostly are conducted verbally as to for instance how the coffee is made and we applied service standards which is the standard in Hong Kong.
MR THOMAS: So I can say that your training is conducted informally to the staff.
INTERPRETER: You can put it that way, yes.”
In my view, the Tribunal committed no error of law in dealing with this question. In the passage relied upon, the Tribunal made findings of fact on the basis of the evidence before it. It determined that the training provided was informal and confined to a low level and it determined, as a matter of judgment and assessment, that the particular level and type of training did not fall within the description of a “satisfactory record” of, or “demonstrated commitment towards”, training as required by the subclause. At the very best for the first applicant, it might be argued that the Tribunal made an error in assessment or judgment of the facts. Even if that were so, and I do not suggest that it was, it would not support the ground of review urged by counsel.
CONCLUSION
As the requirements in subclause 457.111(2)(a) and (b) are cumulative, the failure of the first applicant to succeed on the alleged error of law in relation to subclause (2)(b)(ii) is fatal to his application. Consequently, it is not necessary to determine the other grounds of review which related to the finding of the Tribunal that the first applicant did not satisfy the requirement in subclause 457.111(2)(a)(i). The Tribunal necessarily treated the other applicants’ claims as dependent on the claim of the first applicant. It follows from the rejection of the first applicant’s claim that the claims of the other applicants must also fail. In the result, the application is dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 22 May 2001
Counsel for the Applicant: Mr P P Bravender-Coyle Solicitor for the Applicant: Lai and Hamilton Counsel for the Respondent: Mr R M Niall Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 April 2001 Date of Judgment: 24 April 2001
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