Cho v Minister for Immigration
[2003] FMCA 319
•1 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHO v MINISTER FOR IMMIGRATION | [2003] FMCA 319 |
| MIGRATION – Review of MRT decision – application for Business Residence visa – where the date for transfer of shares was in issue – where applicant seeks a merits review – whether there is any jurisdictional error in the MRT decision. |
Migration Act 1958 (Cth), ss.348, 349, 353, 420(2)(b), 474
Judiciary Act 1903 (Cth), s.39B
Corporations Law, ss.176, 1087(2), 1091(1)
Plaintiff S157 v Commonwealth of Australia [2003] HCA 2
WADK v Minister for Immigration [2003] FCAFC 48
Minister for Immigration v Eshetu (1999) 197 CLR 611
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cohen (2001) HCA 10
| Applicant: | TAI SHENG CHO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 636 of 2003 |
| Delivered on: | 1 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 July 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Cheung, Rutland’s Law Firm |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 636 of 2003
| TAI SHENG CHO |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
On 20 January 2003 the Migration Review Tribunal (“MRT”) made a decision to affirm a decision made by the delegate of the Minister for Immigration to refuse the grant of a Business Skills (Residence)(Class BH) visa to the principal applicant, TAI SHENG CHO (“the applicant”).
By amended application filed 23 July 2003, the applicant seeks to challenge that decision.
The issue (conceded by Counsel for the applicant as correctly identified) before the MRT was whether the applicant had an ownership interest in RHAKO INTERNATIONAL (AUSTRALIA) PTY LTD (“RHAKO”) prior to 15 January 1997.
Brief factual history
The applicant first entered Australia on 12 December 1992 on a tourist temporary entry permit from his native country, Taiwan. He departed and re-entered Australia on a range of visas until 15 July 1998 (“the application date”), when as the primary visa applicant he lodged an application for Business Skills (Residence)(Class BH) visa on the basis of his 10% interest in RHAKO. Concurrent secondary visa applicants were his wife and his children.
The applications were accompanied by a submission from the adviser and an array of documents. On the 5 September 2000 a delegate of the respondent refused the applications, finding that clause 8.45.213 had not been satisfied.
The application for review to the MRT was supplemented by a number of business records, ASIC documents and minutes of meetings of RHAKO. Particularly on 21 August 2002 and on 6 September 2002 the applicant produced further information, and copies of share transfers. The share transfers indicated it was stamped on 14 July 1998 and has been dated 1 July 1996.
The applicant was given ample opportunity to produce further information (some of which was specifically requested by the Tribunal in its letter of 22 July 2002) before a hearing took place on 31 October 2002. Arising from that hearing a further request for information was made by letter dated 1 November 2002.
Subsequently, on 12 November 2002 the applicant produced copies of certain bank records and a further statutory declaration.
After consideration of the evidence the MRT decided on 20 January 2003 to affirm the decision under review finding that the visa applicants are not entitled to the visa sought by them.
Applicant’s submissions
At the hearing before me, Mr Cheung of Counsel appeared for the applicant. He would have said nothing more than he did to advance the interests of his client.
The essence of the submissions made by the applicant were:
a)The MRT misdirected itself as to the law. The applicant contends that the MRT wrongly found that an ownership interest in the shares (for the purpose of the definition in subsection 134(10) of the Migration Act 1958 (Cth) (“the Act”) was only created when the share transfer was stamped on 14 July 1998.
b)Such an error was a jurisdictional error by the Tribunal, which takes the case outside the operation of s.474 of the Act and renders it open to the Court to exercise the jurisdiction given to by s.39B of the Judiciary Act 1903 (Cth).
c)The Tribunal has failed to carry out its function under s.348 of the Act, by not reviewing the delegate’s decision and by adopting the same conclusions (wrong at law) of the delegate.
d)The Tribunal, in applying the law, failed to consider s.176, s.1087 and s.1091(2) of the Corporations Law thereby failing to take into account relevant considerations.
e)The Tribunal failed to comply with s.353 of the Act which amounted to a “constructive failure to exercise jurisdiction”. Such a failure “to discharge imperative duties or which go beyond inviolable limitations on restraints amounts to jurisdictional error and is not validated by the privative clause contained in s.474 of the Act.”
The applicant seeks a declaration that he has met the requirement of sub-clause 8.45.213 of Schedule 2 and asks that the MRT decision be set aside.
Respondent’s submissions
The Respondent, through its Counsel, Mr Wigney says that:
a)The findings made by the MRT were open to it and having identified the relevant issue, it was correct in deciding the applicant had not met the criteria in sub-clause 8.45.213.
b)An error of fact or an error in the fact-finding exercise by the decision maker is not a common law ground for judicial review and also does not amount to a jurisdictional error.
c)If an error of law or fact occurred (which is denied) the fact in question was not a jurisdictional fact. The Tribunal’s jurisdiction to review the decision did not turn or depend on it.
d)The applicants’ submissions that the Tribunal failed to review the delegate’s decision, as required by s.348 of the Act, because it did not deal with or correct the supposed errors made by the delegate, misconceives the jurisdiction of the Tribunal.
e)A suggestion that the Tribunal failed to comply with s.353 of the Act (which the applicant contends is an imperative duty) is without basis and should be rejected.
The Respondent says the Application should be dismissed with costs.
Applicable legislation
The criteria set out in sub-clause 8.45.213 requires relevantly that:
“The applicant:
(a)has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and
(b)continues to have an interest of that kind.”
The term ‘ownership interest’ is defined in subsection 134(10) of the Act, so far as relevant, as follows:
“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.”
For completeness I detail the following sections of the Act raised in arguments advanced before me:
Section 348 – Migration Review Tribunal must review decisions
(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
Section 349 – Powers of Migration Review Tribunal
(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a)affirm the decision or;
(b)vary the decision; or
(c)if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations;
(d)set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a)varies the decision; or
(b)sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Section 353 – Division 4 – Exercise of Tribunal's powers Tribunal's way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Section 474 – Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)…
(4)…
(5)…
Was there an error?
Although Mr Cheung continually emphasised during his submissions that he was not seeking to “attack the findings” of the Tribunal and valiantly asserted that the Tribunal misdirected itself on the law, I came to the conclusion that he in reality was seeking to review the merits of the decision.
The finding by the Tribunal that, on all the evidence the applicants had not discharged the onus to establish, a genuine transfer of the shares had occurred on 1 July 1996 was clearly open to it. It set out the evidence it relied upon and the concerns it had about the “discrepancy” in the evidence offered and the “contradictions” in information provided by the applicant.
There is no merit in the submission that the MRT regarded the date of the stamping of the transfer of the share as the basis for determining when ownership passed to the applicant. The MRT, in its reasons refers to Regulation 1.11A, which provides relevantly, that ownership by an applicant of an ownership interest includes “beneficial ownership only if the beneficial ownership is evidenced in accordance with sub- regulation (2).” It was conscious of regulation 1.11A.
Sub-regulation 1.11A(2) and (3) provides that:
(2) To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:
(a) a trust instrument; or
(b) a contract; or
(c) any other document capable of being used to enforce the rights of the applicant, or the applicant's spouse, as the case requires, in relation to the asset, eligible investment or ownership interest;
stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.
(3) A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.
By it’s enquiry of 1 December 2002, namely, “reasons why the shares transferred to you (the applicant) on 1 July 1996 were not stamped until 14 July 1998”, the MRT was merely undertaking its appropriate evidence gathering/clarification function. It was mindful of, it seems to me, the effect of sub-regulation 1.11A and the other evidence offered from company records. The observation that
“if there is any date that the Tribunal would consider that there was a genuine share transfer it would be the date of stamping, 14 July 1998…”
was made with reservation, and was not a finding of fact that it was transferred on that date. The MRT merely rejected a genuine transfer occurred on 1 July 1996 or any time prior to the critical date of 15 January 1997. It did not make such a finding by failing to distinguish, as the applicants’ assert, the creation of a “legal” interest at a later time then an “equitable” interest in the shares.
In this regard McHugh J in Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cohen (2001) HCA 10 said at paragraph 36 that:
“Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”
I am not satisfied any error in reasoning occurred.
Although the MRT in its reasons only referred to s.1091(1) of the Corporations Law, the statutory declaration of 12 November 2002 and provision of copies of the share register and share certificate, directed the MRT to the rebuttable evidentiary presumptions created by s.176 and s.1087(2) of the Corporations Law. The MRT did not accept the conclusiveness of these presumptions because of the contrary evidence.
For these reasons, I cannot agree or detect an error by the Tribunal going to jurisdiction.
As a result I am not strictly required to consider the further submissions of the Applicant but for completeness say that:
a)If the error asserted by the Applicant had occurred then it would not amount to a jurisdictional error. The decision of the MRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and related to the powers conferred on the MRT. I find, as a result, that the decision of the MRT is a privative clause decision, having regard to the High Court decision in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2.
b)The role of the MRT was to consider the application de novo. The decision of the delegate is merely the catalyst for an application to the MRT by an aggrieved applicant. Significant further evidence (including oral testimony) and documentary information was provided and, as it was bound to do, was considered by the MRT.
c)The contention on the failure to comply with s.353 was recently the subject of comment by the Full Court in WADK v Minister for Immigration [2003] FCAFC 48, where the Court (dealing with an analogous contention under s.420(2)(b)), relied upon the High Court’s decision in Minister for Immigration v Eshetu (1999) 197 CLR 611 and said it “would seem a rather insuperable objection to the argument espoused.”
Conclusion
For the reasons given, I am bound to dismiss the application.
I am satisfied that an order for costs should be made, and adopt the sensible practice in this Registry of fixing costs, in the sum of $4,000.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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