FARHAN v Minister for Immigration

[2015] FCCA 848

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARHAN & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 848

Catchwords:
MIGRATION – Migration Review Tribunal – Business Skills (Residence) (Class VF) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

First Applicant: SHAHRAZAD FARHAN

Second Applicant: AYAR JAWI FARHAN

Third Applicant: SAMRIN JAWI FARHAN

Fourth Applicant: SALLY FARHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 594 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent: Ms Warner-Knight
Australian Government Solicitor

ORDERS

1. Proceedings be summarily dismissed.

2. First Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 594 of 2015

SHAHRAZAD FARHAN

First Applicant

AYAR JAWI FARHAN

Second Applicant

SAMRIN JAWI FARHAN

Third Applicant

SALLY FARHAN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal made on 9 February 2015, in which the Tribunal affirmed a decision not to grant the applicant a Business Skills (Residence) (Class VF) visa. 

2. The application identifies the following grounds:

   1. The nominated spoke person was not given reasonable time to give evidence.

   2. The Migration Review Tribunal did not consider properly the documents we provided in relation to $75,000 requirement.

   3. The Migration Review Tribunal not asked whether any exceptional circumstances determined by the appropriate regional authority so as to obviate the need to meet the assets test or no determination on this issue.

3. The application identifies on the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Court identified to the applicant it was concerned that the application failed to identify an arguable jurisdictional error and that the Court was minded to consider exercising its summary dismissal powers.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. In response to the question of whether there was an arguable jurisdictional error in the decision of the Tribunal that this Court should entertain, the applicant sought to maintain that she met the requirements contrary to the findings of fact made by the Tribunal.  The applicant sought to maintain that the findings of the Tribunal were ones that were not correct.  This is not a court of appeal.  This is not a Court that is hearing the application on its merits.  This Court is confined to jurisdictional error.  

6. There is no substance in any of the three grounds identified in the application, and they are all doomed to fail.  The Tribunal carefully identified the nature of the application and what was applied for by the applicants and the reasons why there was non-compliance so far as concerns the initial review by the delegate as set out in paras.6-7:

   6. A delegate of the Department of Immigration refused the visa application in a decision dated 27 February 2014. The delegate found that the applicant failed to meet a number of key criteria relevant to the grant of the visa. The delegate found that the applicant did not meet the requirements of cl.892.211 which requires an applicant to continue to have had, and continue to have, and ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made. Having regard to the evidence before them, the delegate found that the business Job Finders Pty Ltd had not been actively operating in Australia over the relevant period. Of concern to the delegate was the fact that the applicant had failed to provide any contracts to support the businesses operation in Australia and that there was insufficient evidence to show that the applicants main business in Australia had been actively operating in its own right. The delegate also expressed concerns in the decision record around sporadic business activity evidence from bank statements which showed intermittent deposits into the business account which made it difficult to determine whether they were for actual business services rendered.

   7. The delegate also determined that the applicant failed to meet the requirements of cl.892.212(c) which requires that the assets owned by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia had a net value of at least AUD $75,000 throughout the period of 12 months ending immediately before the application was made. The delegate found based on the documentary evidence before them that the net assets in the business during this relevant period was, which I will have set out.

7. The Tribunal wrote to the applicants inviting them to attend a hearing for 7 January 2015.  On 19 February 2015 the Tribunal received a submission from the applicant along with attachments, which the Tribunal took into account.  The Tribunal identified that the applicant and her husband and daughter attended the hearing on 7 January 2015. 

8. The Tribunal noted that the delegate had found that the applicant’s business was not actively operating in Australia in the two years prior to the lodgement of the visa application, and that the applicant had failed to establish that assets owned by the applicant, or the applicant and her husband collectively, in the main business in Australia had a net value of at least AUD $75,000 throughout the period of the 12 months ending immediately before the application is made.  The application was made on 1 May 2013.  The Tribunal carefully assessed the evidence that was adduced before it, and relevantly, in para.28, recorded as follows:

   28. The tribunal noted that it appeared on the basis of the evidence before it that there was not $75,000 in net assets in the business in the 12 months prior lodgement of the visa application on 1 May 2013. The applicant stated that this was correct. The tribunal made reference to the applicant's submission received on 19 December 2014. The tribunal made reference to the parts of the submission which seemed to indicate that the applicant conceded that she did not have $75,000 in net assets in the business throughout the period of 12 months ending immediately before the application for the visa was made.  The applicant was invited to comment on this.

9. When it was put to the applicant that there had been a concession as recorded in para.28 of the Tribunal decision, the first applicant sought to maintain that there were funds in the requisite amount by reference to moneys that were clearly moneys held overseas, as identified in para.39 of the decision of the Tribunal.  The Tribunal found:

   40. The regulatory requirement is clear and unambiguous.  Namely that the assets owned by the applicant and her spouse in the main business has a net value of $75,000.00 and had a net value of $75,000.00 throughout the period of 12 months ending immediately before the application is made.  The personal funds of the applicant and her spouse are not quantifiable as assets in the main business.  The application for the visa was made on 1 May 2013.  The relevant period is 1 May 2012 to 1 May 2013.  The tribunal is precluded from finding that the funds held in the main business between 30 June 2012 and 1 July 2013 meet the threshold requirement.  They clearly are incapable of doing so.

   41. The tribunal accordingly finds that the assets owned by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main business is in Australia did not have a net value of at least AUD $75,000 throughout the period of 12 months ending immediately before the application was made.

   42. There is no evidence that the applicant meets the requirements of cl.892.212(a) as the applicant was the sole employee of the business.

   43. The regulatory requirements are such that an applicant must meet at least 2 out of the 3 requirements to satisfy cl.892.212 and the evidence indicates that the applicant is incapable of satisfying cl.892.212(a) and cl.892.212(c), therefore the applicant does not satisfy the requirements of regulation 892.212.

10. Those findings by the Tribunal were clearly open on the material before the Tribunal, and I am satisfied that there is no jurisdictional error in respect of the review conducted by the Tribunal.  The findings of the Tribunal were open and cannot be said to lack an evident and intelligible justification.  In essence, the applicant is seeking to advance an impermissible challenge to the findings of fact made by the Tribunal that were open to the Tribunal.  It is in those circumstances I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015