Gacic v Minister for Immigration - [2011] FMCA 403

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GACIC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 403

MIGRATION – MRT decision – Business Skills-Established Business in Australia (Residence) (Class BH), Subclass 845 visa – Tribunal not satisfied that the applicant “overall had a successful business career” – whether failure to consider implications of on-going litigation – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.430
Migration Regulations 1994 (Cth), Schedule 2, Subclass 845

John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291
Liang v Minister for Immigration & Citizenship (2009) 175 FCR 184
Minister for Immigration v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

First Applicant:

LJILJANA GACIC

Second Applicant:

BRANISLAV CIRIC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2722 of 2010

Judgment of:

Smith FM

Hearing date:

25 May 2011

Delivered at:

Sydney

Delivered on:

25 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2722 of 2010

LJILJANA GACIC

First Applicant

BRANISLAV CIRIC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Ms Gacic and her partner, Mr Ciric, seek a review under s.476 of the Migration Act in respect of a decision of the Tribunal made on

19 November 2010. The Tribunal affirmed a decision made by a delegate on 24 August 2006, which refused applications for ‘Business Skills – Established Business in Australia (Residence) (Class BH), Subclass 845’ visas. As the name of the visa indicates, this is a class of residence visa available to business people, who have established business careers in Australia under temporary visas of various classes. Although Mr Ciric’s financial affairs may have been involved in

Ms Gacic’s business pursuits, their eligibility for the visas depended upon Ms Gacic meeting the criteria as primary applicant.
The criteria for the visa require: specified types of temporary visa held by the principal applicant; a period of residence under specified classes of visa; the holding of ownership interests in established “main businesses” in Australia for defined periods; possession of assets in Australia of defined quantity; the ownership of assets used in the main business or main businesses; and direct and continuous involvement in the management of the main business in the 12 months preceding the application. Those criteria are found in time-of-application criteria 845 sub items 211, 212, 213, 214, 215 and 216. Sub item 218 also required that the applicant not have a history of an involvement in business or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 403
Decision Date: 25 May 2011

CaseChat Overview and Summary

The applicants in the case of Gacic v Minister for Immigration were seeking a Subclass 845 visa, which is a business innovation and investment visa. The dispute centred on whether they met the criteria for the visa, particularly the requirement that the applicant has had an overall successful business career. The case was heard by the Administrative Appeals Tribunal. The primary legal issue before the Tribunal was whether the applicants satisfied the criteria under cl.845.221 of Schedule 2 to the Regulations, which requires, among other things, that at the time of decision the applicant continues to satisfy cl.845.217. The Tribunal considered the evidence provided by the applicants and concluded that they had not had an overall successful business career. Despite some modest successes prior to 2004, the closure of their main business and the subsequent financial difficulties of their remaining businesses led the Tribunal to find that the applicants did not meet the required criteria.

The Tribunal noted that the applicants had been involved in several businesses, both before and after their move to Australia. However, the closure of their main business, Coco Roco, and the subsequent financial difficulties of their remaining businesses led the Tribunal to conclude that the applicants did not have an overall successful business career. The Tribunal found that while policy guidelines allowed for consideration of external factors affecting business success, the applicants' overall business history did not demonstrate the required level of success. Consequently, the Tribunal determined that the applicants did not meet the essential criterion for the grant of a Subclass 845 visa. The Tribunal dismissed the application and ordered that the applicants pay the Minister's costs.

Orders

Orders of the court

The application is dismissed.

The applicants must pay the first respondent’s costs in the sum of $5,865.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal then explained its adverse finding in relation to criterion 845.217 in its application under 845.221:20. Cl.845.221 requires, among other things, that at the time of decision the applicant continues to satisfy cl.845.217 which requires that the applicant has overall had a successful business career.21. The Tribunal has considered the evidence and is not satisfied that the applicant has overall had a successful business career; she therefore does not meet cl.845.221. 22. In making this finding the Tribunal considers that the evidence provided by the applicant indicates that prior to the demise and eventual closure of the Coco Roco restaurant in late 2003 and early 2004, the applicant had been modestly successful in her business career. The evidence indicates that she was a director and shareholder of a number of small businesses overseas before moving to Australia.23. With the closure of the Coco Roco restaurant in 2004, however, the applicant’s business fortunes have declined dramatically: ·Coco Roco closed and Syd Mirror Pty Ltd, one of the applicant’s nominated main businesses, was deregistered.·In 2005 the Supreme Court of NSW ordered that the applicant’s other main business, Ferretti, be wound up and a liquidator appointed. The liquidator subsequently appointed himself administrator. In May 2007 the winding up of Ferretti was terminated. However, financial statements for Ferretti provided to the Tribunal indicate that in the period since the administrator handed control of Ferretti back to the applicant and her sister (the latter has subsequently transferred her ownership share to the applicant), no employees have been recruited and the company’s modest income and more modest profit have been dwarfed by losses carried over from previous years. ·In relation to Vivedea (previously Multivita Pty Ltd), there are no audited financial statements on the Tribunal’s case files indicating that the company has ever operated profitably. By way of explanation, the applicant has noted that she has been preoccupied with legal proceedings against Fairfax and has 2 options: sell the approved distribution rights or continue to put the business on hold for another year. 24. The applicant’s representative has noted that policy provides for external factors to be considered in situations where a business has on the surface not been successful. It is submitted that when considering the applicant’s overall business career and taking account of the provisions of policy it is open to find that the applicant satisfied cl.845.217.25. The Tribunal has taken account of the policy guidelines but nonetheless considers that the applicant has not overall had a successful business career. The applicant’s problems with Fairfax and the Sydney Morning Herald article on Coco Roco and the subsequent extensive litigation may well explain the applicant’s lack of business success in recent years. However, cl.845.217 requires more than an explanation for lack of business success: cl.845.217 requires that the applicant has overall had a successful business career. The Tribunal has considered the applicant’s business history both before and since arriving in Australia and is not satisfied that the applicant has overall had a successful business career. The applicant does not therefore meet the requirement in cl.845.221 that the applicant continues to satisfy the criteria in cl.845.217 at the time of the Tribunal’s decision.26. The Tribunal has considered whether the second named applicant meets the primary criteria for a Subclass 845 visa. Since the second named applicant does not have an ownership interest in the remaining main business (Ferretti Pty Ltd), he does not meet the requirements of cl.845.221.Conclusions27. For the reasons given above the Tribunal finds that neither of the applicants satisfies the requirements of cl.845.221 of Schedule 2 to the Regulations. As such the applicants do not meet an essential criterion for the grant of a Subclass 845 visa.

Ratio Decidendi

Legal Principle Established

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