Ding v Minister for Immigration

[2004] FMCA 999

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DING & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 999

MIGRATION – MRT decision – refusal of temporary business entry (Class UC) visa – whether business of benefit to Australia – whether applicant was misled into concession – no error found.

Federal Magistrates Court Rules 2001, pt.11 div.11.2

Migration Act 1958 (Cth), ss.359, 474, 483A

Migration Regulations 1994 (Cth), sch.2 cls.457.111(2), 457.223(7A)(c)(i)

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicants: CHUN LAN DING & YA NING ZHANG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1523 of 2004

Judgment of: Smith FM

Hearing date: 8 December 2004

Last Submission: 8 December 2004

Delivered at: Sydney

Delivered on: 8 December 2004

REPRESENTATION

Counsel for the Applicants: First applicant in person

Counsel for the Respondent: Mr J.A.C. Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicants to pay the respondent’s costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1523 of 2004

CHUN LAN DING & YA NING ZHANG

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 29 April 2004. The Tribunal affirmed a decision of a delegate that the applicants were not eligible for a temporary Business Long Stay (Independent Executive) Subclass 457 (onshore) visa. The principal claim for eligibility for the visa was made by the first-named applicant, who is the mother of the second-named applicant and has represented her at the hearing before me. I shall refer to her as “the applicant”.

2. In applications such as the present, an applicant must establish a serious legal defect in the proceedings or the reasoning of the Tribunal which amounts to a jurisdictional error as described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 before the Court has power to order that the Tribunal decision be set aside and the case be reheard. Only if a jurisdictional error is established can an applicant escape from the bar which is provided under s.474(1) of the Act.

3. The present applicant sought to establish eligibility for a visa based on her business activities as the principal of a company, Jin Fa (Australia) Pty Ltd. An essential requirement for the visa was provided in Sch.2 cl.457.223(7A)(c)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”):

   (7A)The applicant meets the requirements of this subclause if:

   (c)the Minister is satisfied that:

   (i)the business is of benefit to Australia; …

4. The test of “ benefit to Australia” was explained in Sch.2 cl.457.111(2) of the Regulations:

   (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; or

   (ii)expansion of Australian trade in goods or services; or

   (iii)the improvement of Australian business links with international markets; or

   (iv)competitiveness within sectors of the Australian economy; and

   (b)the operator of the business:

   (i)introduces to, or utilises or creates in, Australia new or improved technology or business skills; or

   (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia.

5. Material was presented to a delegate by the applicant assisted by a migration agent which showed that a previous business upon which she had been given a temporary visa involving vegetable and fruit export had ceased, but that the applicant had commenced a business in importing gift products from China to Australia and hoped also to export sheepskin and kangaroo skin products to China.  The accounts for the applicant’s company presented for the year July 2001‑June 2002 showed a trading profit of $20,869.00 and a net profit in the profit and loss statement of $661.89, with no employee expenses shown at all.  The profit and loss statement for the previous year indicated a similar level of activity.

6. The delegate decided that the applicant did not satisfy paragraph (b) of the test of “benefit to Australia” in relation to either of its sub‑paragraphs.  The delegate’s reasoning was set out in a statement sent to the applicant:

   The applicant has not demonstrated that the business has introduced, utilised or created in Australia new or improved technology or business skills; or has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia.

   Under policy, “new or improved technology or business skills” generally means “leading (cutting) edge” technology or skills that are not readily available in Australia.

   The applicant stated that the company’s plan is to export and import gift product and Australian specialities according to the market swinging.

   The skills and technologies required for these claimed business activities are, therefore, not classified as new or leading (cutting) edge technology.

   Based on the information provided, I am not satisfied that the applicant has introduced, utilised or created in Australia new or improved technology or business skill.

   Training record

   I have considered whether the applicant has demonstrated a satisfactory record of training Australian citizens or Australian permanent residents.

   The company has provided the profit and loss statement for financial year ended 30 June 2001 but it does not show any wages and training expenditure.  The business activity statement from 1 October 2000 to 30 August 2002 does not show any salary expenses as well.

   The applicant has not provided any quantifiable evidence or documentation to substantiate claims that staff training has been provided since they started operating.

   There is no evidence of training policies or manuals that have been developed since the operation has started.

   In the absence of further detailed information or explanation in supporting the applicant’s statement on training record, I am not satisfied that the applicant has established that the claimed business has a satisfactory training record.

7. On appeal to the Migration Review Tribunal, the applicant was assisted by an agent who made the following submission in relation to the delegate’s reasoning:

   The delegate of the Minister, in making the refusal decision, mentions in the decision record that the applicant does not meet the requirements of Migration Regulation 457.223(7A)(c)(i) since she has not introduced, utilized or created in Australia new or improved technology or business skill, nor does she have a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia.  With regard to the above comments, the applicant explains as follows:

   1)The nature of her business does not require any new or improved technology or business skills.

   2)The applicant demonstrated that with the development of her business, she will hire Australian citizens and Australian permanent residents, and will train the employees, either on-job or formally, to improve the qualification of the employees.

   Hence, the applicant claims that she has a demonstrated commitment towards training Australian citizens and Australian permanent residents in the business in Australia.  Thus she meets the Regulation 457.223(7A)(c)(i).  Also she meets all the other requirements prescribed under this category.

8. The Tribunal invited the applicant under s.359 of the Act to give additional information concerning satisfaction of the criteria for the visa. After some delay the applicant’s agent provided only a copy of recent company and tax statements. Included in these was a trading and profit and loss statement for the year ending 30 June 2003, which showed a worsening position in terms of business activity and a loss on the profit and loss account, once again without any employee expenses.

9. The Tribunal invited the applicant to appear at a hearing and she did so on 13 April 2004.  The Tribunal records the following:

   14.At the hearing, the visa applicant indicated that while the company currently has no employees, she planned to employ 3 people who would be trained in the operation of the company and also be given more advanced training, including training relating to the complex Chinese market.  She confirmed that her visa application was based, among other things, on her claim that her company met the training, rather than the technology/business skills, requirements of subclause 7A of clause 457.223, as interpreted in clause 457.111.  A client of the visa applicant, Mr Simon Wu, stated that the visa applicant also had advanced business skills, particularly in respect of her knowledge of the Chinese market.

10. There is no better evidence before me as to what happened at the hearing and, in particular, the applicant has not sought to tender a transcript of the hearing.  (But see the postscript at the end of these Reasons).

11. The Tribunal set out the history of the matter and the relevant statutory provisions.  It indicated its critical reasoning in two paragraphs:

    18.As part of this review, the Tribunal must consider whether the visa applicant meets the requirements of subparagraph 457.223(7A)(c)(i) (benefit to Australia) as that criterion is interpreted at paragraph 457.111(2)(b).  The visa applicant has affirmed that she makes no claim to meet the requirements of subparagraph 457.111(2)(b)(i) relating to technology/business skills.  A client of the visa applicant testified at the hearing that the visa applicant has advanced business skills but this statement does not by itself demonstrate that the visa applicant meets this criterion.

    19.In relation to subparagraph 457.111(2)(b)(ii) on training, the company currently has no employees and its latest financial statement contains no provision for expenditure on training. Based on the evidence, the company does not have a satisfactory training record. In relation to the company’s commitment to training, the visa applicant has testified that she plans to employ 3 people and give them advanced training. The visa applicant’s representative has submitted in writing that ‘with the development of [the visa applicant’s] business, she will hire Australian citizens and Australian permanent residents, and will train the employees, either on-the-job or formally, to improve the qualifications of the employees.’ No detailed and/or quantifiable training plan has been provided. Based on the evidence, the Tribunal considers that the visa applicant has not demonstrated a commitment to training Australian citizens and/or permanent residents. The Tribunal therefore finds that the visa applicant does not meet the requirements of paragraph 457.111(2)(b); it follows that the visa applicant does not meet subparagraph 457.223(7A)(c)(i) of the Regulations.

12. I can find no error of law in the Tribunal’s reasoning.  It has noted that the applicant made no claim to satisfy the test under paragraph (b)(i), but has expressly addressed that criterion in the light of evidence given by a witness called by the applicant.  It has then addressed the training record and commitment of the applicant under paragraph (b)(ii) in a manner which, in my opinion, shows no error of law.

13. The original application to this Court provided no particulars of a complaint that “I was not given a proper opportunity to explain my case”.  A second complaint that “The Tribunal did not take into account the evidence provided by our witness” has not been substantiated on the material before me.  In the extract above, the Tribunal expressly shows that it considered that witness’s evidence.

14. The applicant was directed to file an amended application and has done so.  It states:

    I believe that the officer made jurisdiction mistakes when considering my application; he had bias against me and refused to accept my explanations on requirements of subparagraphs 457.111(2)(b)(i).  At my hearing, when I discussed with him about his requirement, he put it to me that I could only choose one, either (i) or (ii).  I can not discuss both of them to be better explain my business.  In my point of view, our business can satisfy both issues, my business can introduce new business skills especially international business skills to Australia which is not currently available in Australia.  We have been importing goods from China for wholesale in Australia, importation of goods from different countries require different business skills which is necessary for trading in international markets.  Our business has been running for more than 15 months and we meet all of the requirements for 457 further application onshore.  I believe that we should be allowed to explain more details about our business, at least both (i) and (ii) so as to satisfy the requirements.  I can not see why the officer can only allow me to explain only one of the issues (i) or (ii).  Therefore, I was not given a proper opportunity to explain my case.  Furthermore, I was initially granted subclass 457 because I met the criterion of subclass 457.  That means I met 475.111(2)(b)(i) or (ii), now we have been running the business for such a long time and intended to extend my visa to better develop my business in Australia.  I meet all the requirements such as actively operating this business for at least 15 months, has a genuine and realistic commitment; to maintain an ownership interest in the business and to maintain a direct and continuous involvement in the management of the business; and to make decisions that affect the overall direction and performance of the business from day to day and has net assets of not less than AUD250,000; has demonstrated that there is need for me to be temporarily resident in Australia to conduct the business.  I believe that I meet the same requirements and should be granted a further subclass 457.

    Meanwhile, my migration agent’s registration has been suspended for five years.  His registration was suspected before my application with MRT was finalized.  MRT failed to inform me about this and continued to accept his assistance and to send correspondences to him without getting permission in writing from me.  I believe this is a serious error.

15. As I understand it, there are three points made which I should address. The first is a complaint that the Tribunal member misled the applicant into thinking that she had to choose between giving evidence going to either cl.457.111(2)(b)(i) or (ii), and could not address the Tribunal in relation to both sub‑paragraphs. On the material before me I am not persuaded that this happened.

16. In the passages set out above, the Tribunal says that the applicant “confirmed” and “affirmed” what had been put in her agent’s submission:  that she claimed to satisfy the “training” test in (ii) but not the “new or improved technology or business skills” test in (i).  In the absence of better evidence as to what happened at the hearing, I am unable to conclude that the applicant did not make this concession or was misled into making it.  I am unable to find that the Tribunal conducted the hearing unfairly.

17. On the material that was before the Tribunal, including the submission of the applicant’s agent and the evidence as to the nature of the applicant’s business, the concession noted by the Tribunal does not seem inherently unlikely to have been made.

18. The second point that I can distil from the applicant’s “Amended Application” is that she now seeks an opportunity to put forward more material going to the issue of “new or improved technology or business skills”.  She has not shown the Court what that material might be but, in any event, her desire to have a rehearing where more material can be put forward is insufficient to give me power to return her case to the Tribunal.

19. The third point raised in the applicant’s “Amended Application” and her oral submissions is a complaint that she was not told by the Tribunal that her migration agent’s registration “was suspected before my application with MRT was finalized”.  There is also a complaint about correspondence being sent to him, but I cannot understand how the applicant was disadvantaged by this, particularly since all the Tribunal’s letters were also sent to her own residential address.

20. There is no evidence before me that the Tribunal was aware of any regulatory concerns or activity concerning the registration of her agent. Even if it were aware of such activity, I do not consider that it had any duty to take any action concerning it in relation to the applicant’s application, prior to a decision being made on the agent’s registration. I note that supervision of migration agents is conducted by a different authority which is obliged to keep its proceedings confidential until a decision is made, and that only at that time is it empowered to make public its determination (see ss.305A and 305B of the Act).

21. I can find no basis on which the applicant’s present claims give rise to a jurisdictional error by the Tribunal which vitiates the decision under review in this Court.

22. For the above reasons I shall dismiss her application.

    RECORDED  :  NOT TRANSCRIBED

23. While I was delivering the above reasons, and at the conclusion of my oral judgment, the applicant indicated that she wished to tender a tape of the Tribunal hearing on 13 April 2004 and an envelope post‑marked 14 April 2004 in which it had been sent to her.  The applicant had not previously sought to tender any evidence of the Tribunal’s proceedings, notwithstanding that I had invited her to tender any such evidence and that the written and oral submissions of counsel for the Minister had drawn attention to its absence.

24. I decided that I should receive the tape and listen to it in order to reconsider my proposed order.  Counsel for the respondent thereupon told me for the first time that his solicitors also possessed the tape and had arranged for a transcript to be made.  He filed and read an affidavit by Andrea Marianne Christie‑David sworn 8 December 2004 which attached the transcript and deposed to its accuracy.  Given the availability of a transcript, I did not feel it necessary myself to listen to the tape and have not done so.  I adjourned briefly to read the transcript and to allow it to be interpreted to the applicant.  I then allowed the applicant an opportunity to make a further submission.

25. The transcript contains the following passage relevant to the applicant’s complaint that she was erroneously told that she must choose between the alternatives in Sch.2 cl.457.111(2)(b):

    Member:You are talking about the benefits of your company for Australia.  The visa defines what benefits to Australia are required for you to meet your visa requirements and in particular it suggests that your company has to have a satisfactory training record, or you are introducing new or improved technology or business skills.  Now you have spoken a little bit about what you would like to do in the future in terms of training future employees.  Now is there anything more you would like to say on the training side?

    Applicant:Maybe not.

    Member:Now you just tell her to not talk for so long, now we can keep going but I need a direct translation.

    Applicant:Actually I will, my workers will not only do the packing or typing jobs, they need advanced skills like they can develop the China market, they can explore the China market to establish the relationship with manufacture in China.  So in the future eight to ten years China is still a very big international market, I think China we have a more complicated culture than the Western culture so I will train my workers to understand this market.

    Member:That’s all relevant to your commitment to training and that will be taken into account in my decision.  Do you have any information or do you make any claims in relation to introducing any new or improved technology or business skills?

    I mean, you don’t have to, if you feel you meet the training requirement, and you are making claims on the training requirement, you don’t have to also meet the technology requirement, they are one or the other.  You don’t have to meet both.

    So are you basing your application on meeting the training requirement, not the technology requirement?

    Applicant:Yeah.

    Member:Yeah ok.  So we don’t need to talk about the technology requirement there?  In fact I think your representative in the earlier submission said that you were basing it on the training, not the technology.  Is that correct?

    Advisor:Yes.

    Member:And it says here the nature of your business does not require new or improved technology or business skills.  So what I will be doing will be assessing the information you provided on training to see if that meets the requirements of your visa.  Ok.  And I will also of course, factor in the other information about benefits to Australia from your business.

    Applicant:Thank you.

1. I can find nothing on the tape which establishes the applicant's complaint that she was misled by the Tribunal into not leading evidence going to sub‑paragraph (i).  In my opinion, if the applicant did mistakenly believe that she was required to elect between sub‑paragraphs (i) and (ii), then this was not the result of any unfair or inaccurate statement by the Tribunal member at the hearing.  In my opinion, the Tribunal accurately and sufficiently set out in its paragraph 14 (extracted above) the gist of its exchange with the applicant on this matter.  I consider that the transcript shows that the member merely took reasonable and fair steps to check whether the apparent concession made by the applicant's agent in the written submission was confirmed by the applicant.

2. Subsequent to the above exchange, the Tribunal took evidence from the witness presented by the applicant, who gave evidence as to her business skills.  The Tribunal indicated that it would consider that evidence, and it did so as indicated in the extract from its reasons set out above.  I also note that the transcript shows the applicant was attended at the hearing by somebody described as Annie Lee, as her representative, and that no clarification as to the applicant’s case was sought to be made by that person.

3. I decided that I should not reconsider my conclusion and reasons previously expressed.

4. The order of the Court is application dismissed.

   RECORDED  :  NOT TRANSCRIBED

5. I shall order the applicant to pay the respondent's costs in the sum of $4500.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  24 December 2004