Chung v Minister for Immigration
[2009] FMCA 887
•10 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHUNG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 887 |
| MIGRATION – Business Visa – 'Eligible business' – relevant time for assessment – time of cancelation. |
| Migration Act 1958 (Cth), s.134 |
| Koosasi v Minister for Immigration & Multicultural Affairs [2006] FCA 1260 |
| Applicant: | CHAN KING CHUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1243 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 20 April 2009 |
| Date of Last Submission: | 20 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed 14 October 2008 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1243 of 2008
| CHAN KING CHUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies to judicially review a decision of the Administrative Appeals Tribunal (“AAT”). The applicant was granted a business skills visa in 2003. In January 2007, the Minister gave notice to the applicant that the Minister intended to consider cancellation of his business skills visa. The Minister ultimately decided to cancel the applicant’s visa. The applicant sought review in the AAT. On 15 September 2008, the AAT affirmed the decision of the Minister.
In 1983, on his return to Fiji, the applicant commenced working in the construction industry. By 1985 he had commenced his own business growing cash crops and exporting them to Australia New Zealand and the United States of America (at [5]). In 1998 he incorporated a company, Chung Export Ltd, of which he owns 99%. This company leases farms in Fiji and has an average annual turnover of around $1.8 million (at [6]). The company continues to operate in Fiji.
In 2002 the applicant incorporated a company in Australia with a business associate, referred to as CTPL. Seventy, of the 100 shares, are owned by Chung Export Ltd. He also incorporated a second company C & J Trading Pty Ltd, 70% of which was owned by his family trust and controlled by him.
There was no issue with respect to the applicant’s ownership of the relevant entities as a result of the business structures that he established.
CTPL ceased active trading in mid-2005. It operated at a loss in 2003, 2004 and 2005. Whilst it was in operation it employed one permanent resident in Australia on a full-time basis, and one casual staff member for one half day every two weeks. The AAT specifically found that the company had carried on no importing or exporting business activity in Australia since the middle of 2005 (see paragraph [34] of the AAT’s decision dated 15 September 2008).
The evidence showed that the other company, C & J Trading Pty Ltd, had never conducted any business in Australia. Its one business activity was an attempt to set up taro growing in China, which failed.
The tribunal concluded:
[40] The main problem for Mr Chung is that I am not satisfied that either of the businesses of CTPL or C & J Trading eligible businesses. While I have no doubt that Mr Chung has substantial ownership in both of these companies, that does not assist him unless either of those companies engages in an eligible business. Although the businesses of CTPL ceased in 2005 there is no evidence of any genuine effort by Mr Chung to have its activities fall within the statutory definition. As for C & J Trading, after the failure of the taro crop in 2004, there is no evidence of any effort being made to have that company engaged in an eligible business. Although Mr Chung has said he is regrouping and that he will try again in earnest after this matter before the tribunal is resolved, that does not seem to me to be an adequate answer. Some three years have now passed and there was no evidence before me of any renewed effort to have either entity engage in an eligible business.
Grounds of application
The applicant relies upon three grounds. The first is that the tribunal misinterpreted the term 'eligible business' with respect to the definition in s.134(10)(b) of the Migration Act 1958 of the phrase 'the creation or maintenance of employment in Australia'. Secondly, the appellant says that the tribunal misconstrued the term 'eligible business' with respect to the definition in s.134(10)(c) of the phrase 'the export of Australian goods or services'. The third ground of the appeal is that the tribunal failed to consider the businesses an 'eligible business' as defined in s.134(10)(b) with respect to 'the creation or maintenance of employment in Australia.'
The relevant legislation in this case is contained in s.134(1) and (10) of the Migration Act 1958 which provide:
“134 [Cancellation of business visas] (1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
…
(10) In this section:
…
"eligible business" means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
…
As was pointed out by Branson J in Koosasi v Minister for Immigration and Multicultural Affairs [2006] FCA 1260 at [9] and [21], it is not contentious that the relevant time for considering whether the business was ‘resulting in one or more of the outcomes identified’ in the definition in s.135(10), is the date of the cancelation of the visa.
At the time of the decision neither of the companies was carrying on an importing or exporting business in Australia: see paragraph [34] of the AAT’s decision dated 15 September 2008. Whilst there was limited employment generated (the employment of one full time and one casual employee), that had come to an end in 2005. Thus, it is difficult to see how the tribunal could have concluded, as at the date of the decision to cancel the business skills visa, that Mr Chung was carrying on an ‘eligible business’, as no business creating or maintaining employment in Australia, nor exporting Australian goods or services, was then operating. Indeed, none had operated in this way since 2005.
Considerable focus was placed upon the tribunal’s finding that the employment did not satisfy the requirements of s.135(10) of the Migration Act 1958, from the perspective of whether the 1.1 effective full time equivalent jobs were sufficient. It appears to me that the finding of the AAT is that, this past employment could not satisfy the definition as the business was resulting in the creation or maintenance of employment as at the date of cancelation.
Importantly, this was not a case where the business was still active and likely to engage contractors or other staff from time to time in the future. The business had simply ceased to employ or export, and was no longer resulting in the maintenance or creation of employment. Any employment created by the business ended at the very latest by 31 December 2005: CB 602. This was well before the cancelation of the business skills visa. The business had not commenced to achieve one of the outcomes required by the definition in s.135(10) of the Migration Act 1958 by the time of the AAT hearing in 2008.
The applicant also argued that Koosasi shows that isolated transactions are not necessarily insufficient to satisfy the ‘export’ requirement in s.135(10). However, the tribunal found that there was no exporting business carried on since 2005: at [34] and [37]. Having regard to the different facts, the tribunals decision in this case was clearly open.
Had the cancelation occurred in 2005, the arguments raised by the applicant may have been matters of substance, however, the companies had long since ceased to fall within the definition of ‘eligible businesses’.
Finally, the applicant argued that because the tribunal did not address the role of the applicant in the business for the purpose of s.134(1)(b), the tribunal had erred in failing to decide one of the elements required under s.134. The answer to this argument is that once the tribunal decided that there was no ‘eligible business’ as at the time of the cancelation, the applicant’s application had to fail, and there was no need to determine this question. I see no jurisdictional error in approaching the matter on this basis.
As the applicant has not established a ground for judicial review, the application must be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Aisling Clifford
Date: 10 September 2009
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