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 investment activities ‘that is not generally acceptable in Australia’.

In addition, the presently relevant time of application criterion 845.217, required:
845.217 The applicant has overall had a successful business career.
This criterion also applied at date of decision, since under the heading “Criteria to be Satisfied at Time of Decision” is criterion 845.221:
845.221 The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.
There is authority binding on this Court as to the effect of this criterion, in the judgment of Logan J in Liang v Minister for Immigration & Citizenship (2009) 175 FCR 184. His Honour followed authority in the Full Court concerning a test referring to “continues” in another part of the Migration Regulations. As his Honour noted, at times this word does not necessarily require continuity of satisfaction in the intervening period between time of application and time for decision, but only satisfaction as at those two dates. However, in other contexts, continuity is required in relation to the intervening period. Logan J concluded in relation to the presently relevant criteria, that is, 845.217 and 845.221:
51. Subclauses 845.217 and 845.218 are different. Each of them is activity focussed; “overall had a successful business career” and “has a history of involvement”. Deciding whether a visa applicant “continues to satisfy” these criteria will necessarily involve examining what that applicant has been doing in whatever interval has elapsed between the time of application and the time of decision. The conclusion one reaches as to the position which obtained at the time of application in respect of these criteria may differ from that reached at the time of decision because of what has occurred in the interval.
Although previous counsel for Ms Gacic, in earlier proceedings in this Court concerning an earlier decision of the Tribunal, submitted that Logan J’s interpretation was incorrect, no submission was made to me to this effect. I consider that I should follow his Honour’s reasoning.
The protracted nature of the decision-making in relation to Ms Gacic’s and Mr Ciric’s visa application is explained by bulky court documents showing the complexity of her business affairs and the involvement of professional advisers over many years. Changing events and the changing fortunes of the businesses pursued by Ms Gacic has required the continuous updating of decision-makers. The application of this material to the various criteria has given rise to several difficult issues. However, the decision of the present Tribunal was based upon only the Tribunal failing to be satisfied that Ms Gacic satisfied criterion 845.221 in its application in respect of criterion 217. The Tribunal did not find it necessary, unlike the delegate, to address the other criteria, although issues concerning the other criteria had been the subject of active correspondence between the Tribunal and the visa applicants’ representatives over several years.
The original visa application was lodged by a firm of solicitors on

15 December 2003. It was accompanied by a similar application by Ms Gacic’s sister, Aleksandra Gacic. The covering letter summarised their business interests as follows:
The applicants have ownership interests in three businesses in Australia as follows:
·Ferretti Pty Ltd
The company was incorporated on 24 February, 2000. A certified copy of the Company Registration is at Annexure 13. Aleksandra Gacic holds 49% of the issued shares in that company, and Ljiljana Gacic holds the remaining 51%. A copy of the company’s historical search is at Annexure 14.
The predominant business activity of Ferretti is to import and resell Italian goods, including clothes, accessories and kitchen cabinets. Staff recruitment has formed another important part of Ferretti’s current business. Ferretti recruits and manages employees who are then subcontracted to Syd Mirror and CocoRoco.
·Syd Mirror Pty Ltd
The company was incorporated on 23 May, 2002. A certified copy of the Company Registration is at Annexure 15. Each of Aleksandra Gacic and Ljiljana Gacic hold 30% of the issued shares in that company. A copy of the company’s historical search is at Annexure 16.
Syd Mirror is a reputable restaurant at Bondi Junction, Sydney. It serves Mediterranean cuisine. While Syd Mirror owns the furniture in the restaurant, it is operated through Ferretti.
·Coro Enterprises Pty Ltd
This company was incorporated on April 2003. This company operates as a service company for Syd Mirror Pty Ltd.
This company owns a substantial two-kitchen and two-bar restaurant business under the business name “CocoRoco” located at 17 Lime Street, King Street Wharf, Sydney. It has been trading for approximately 3 months.
The Applicants nominate Ferretti Pty Ltd and Syd Mirror Pty Ltd as their main businesses in Australia.
The submission addressed each of the relevant criteria and referred to relevant documentation. In relation to criterion 845.217, it said only:
It is submitted that both applicants have overall had successful business careers. Resumes for Aleksandra Gacic and Ljiljana Gacic will be submitted separately.
Subsequent to the submission of the visa application, the restaurant business which was at the centre of Ms Gacic’s then business activities, the “substantial two-kitchen and two-bar restaurant business under the name of ‘CocoRoco’” at King Street Wharf Sydney, suffered misfortune. Very soon after it was opened, it was subject to a damaging review by a Sydney Morning Herald restaurant critic. Whether for that reason, or other reasons, the business for the restaurant never became sufficient to support the enterprise, and it closed in June 2004.
In 2004, Ms Gacic, her sister and Mr Ciric commenced proceedings in the Supreme Court of New South Wales for personal defamation in relation to the review. The litigation followed a tortuous path. Bell J conducted proceedings with a jury and made orders in June 2005, which were varied by the Court of Appeal in June 2006, addressing whether four alleged defamatory imputations were made out. The Court of Appeal substituted orders finding that two imputations were made out and referring a third for retrial. The Court of Appeal’s orders were upheld in the High Court on 14 June 2007 (see John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 291).
The defamation matter was then remitted to the Supreme Court, where its subsequent history is not easily traced in the documents in the evidence before me. It does appear, however, that on 18 December 2009, Harrison J at first instance upheld defences of comment in relation to the publication, and gave judgment for John Fairfax Publications with costs against Ms Gacic and her co-plaintiffs. The applicant now complains that the present Tribunal failed to give necessary consideration to the prospects of an appeal from Harrison J’s judgment.
The most recent evidence in relation to this which was before the present Tribunal, is found attached to a response by Ms Gacic’s migration agent to a letter from the Tribunal dated 4 February 2010 (see Court Book page 1343). The Tribunal invited Ms Gacic’s comment on Harrison J’s orders, in a context where the Tribunal suggested that:
the adverse financial implications of this information may indicate that neither of the applicants continues to satisfy the criterion in clause 845.214 of the regulations as required under 845.221.
These criteria applied a past and current assets test on the visa applicant, in a context where Ms Gacic had claimed valuable assets arising out of anticipated successful verdicts and costs orders in the defamation proceedings. Her expectations in that respect had previously been supported by two opinions of Mr Evatt QC, in which on 21 July 2006 he said: “I anticipate my clients will succeed in their defamation claim and obtain substantial damages”, and on 7 March 2007 he said: “Should the plaintiff succeed I anticipate that each will be awarded damages between $250,000 and $500,000” (see Court Book at pages 845 and 897).
In response to the Tribunal’s invitation to comment in February 2010 on the effect of the adverse verdict, the visa applicants’ agent responded on
4 March 2010, enclosing a third letter from Mr Evatt. It said:
On 18 December 2009 Judgment was given by Mr Justice Harrison in the defamation action. Ms Gacic was unsuccessful. A Notice of Intention to Appeal has been lodged and I estimate it will take approximately 12 months before Judgment is given by the Court of Appeal. The unsuccessful party in the Court of Appeal will have the right to seek leave to appeal in the High Court. In my opinion Ms Gacic has reasonable prospects of success in the appeal.
John Fairfax Publications were awarded costs. It is unlikely this order will be enforced until after the appeal. If there is an attempt to enforce the costs Ms Gacic will apply for a stay of proceedings.
An attached letter from a solicitor, presumably the solicitor handling Ms Gacic’s defamation, asserted:
In relation to the MRT Invitation to Comment on Information dated 4 February 2010, I respond as follows:
The decision of the NSW Supreme Court dated 18 December 2009 to award costs to Fairfax is subject to an Appeal. It is my legal opinion that should Fairfax attempt to claim costs at this point in time Ms Gacic and Mr Ciric have the right to apply to the Court for a stay of any such claim by Fairfax on the basis of the Appeal.
Therefore the decision of NSW Supreme Court will have no immediate impact on the assets of Ms Gacic.
In my legal opinion, it is not therefore possible to determine or infer the impact of this decision to Ms Gacic’s assets and liabilities until the conclusion of the Appeal in the NSW Appeal Court or potentially in the High Court of Australia.
I submit that it would be unfair and unjust for the MRT to refuse the application based on the decision of the NSW Supreme Court dated 18 December 2009 to award costs to Fairfax as this matter is subject to an Appeal as indicated above.
It will be noted that neither the Tribunal in its invitation to comment, nor Ms Gacic’s agent, nor any other person in correspondence attached to the agent’s submission, adverted to the possible implications of Harrison Js orders in relation to the assessment of criterion 845.217.

I shall return to this issue below, since it provided the heart of the present application for review.
It is necessary first to return to trace how the application of criterion 845.217 had been addressed in the previous decision-making and correspondence.
At the primary level of decision-making, after considerable correspondence, a delegate provided Ms Gacic and her advisors with, in effect, a draft or provisional decision on 14 October 2005. This invited comment on possible adverse conclusions on many of the visa criteria, including the continuous ownerships tests criteria in 845.213 and the assets tests in 845.214 and 845.215, by reason of the misfortunes affecting Ms Gacic’s business career and her restaurant in particular. The delegate also foreshadowed a possible adverse conclusion in relation to criterion 845.217, referring to relevant parts of the Department’s Procedures and Advice Manual (see Court Book page 507-508).
In response to this part of the notice of provisional findings, on
16 December 2005 Ms Gacic’s representative submitted (see page 594):
845.217 – overall had a successful business career
It is our submission that the applicants’ experiences and the difficulties experienced with Syd Mirror have directly impacted on Ferretti Pty Ltd. In other words it was one event or the one series of events in relation to Syd Mirror that has impacted so severely and directly on the applicants and on all their business dealings.
Ferretti Pty Ltd was a substantial creditor of Syd Mirror for services provided and the liquidation of Syd Mirror left Ferretti with no option but to write off the payments owed. This in turn placed a serious strain on the cash flow of Ferretti.
Further the liquidation of Syd Mirror and associated proceedings and the litigation against the Sydney Morning Herald have placed a huge demand on the time and resources, including financial resources, of the applicants.
In your letter of 14 October 2005 in reference to the liquidation of Syd Mirror you refer to the quotes that the company’s failure was due to: the SMH’s negative review, “dispute between shareholders” and “excessive fit out and set up costs including financial costs”. You comment “While the first of these factors may be considered outside the directors’ control, the other two are not”. In response we note that the restaurant and fit out were aimed at the very top end of the market and it was due to the dramatic negative impact of the SMH review that the fit out and set up costs became “excessive”. It is submitted that the costs were not excessive in the context of the business’ trading were it not for the SMH review.
We note your comment again in the letter of 14 October 2005 “that the liquidator goes on to state that they are of the opinion that it is the above factors, “together with the directors’ inability to overcome the decline in turnover and re-market the restaurant following the poor review” that contributed to the company’s failure”. In response we comment that the odds are weighted heavily against new businesses succeeding with many new businesses failing. Add to this the difficulty of starting a new business in a new country, plus the difficulty and fickleness of the Sydney restaurant market. No matter how good the business planning or how sound the business decisions the market ultimately dictates.
We highlight the point that the SMH review was based on the day after the restaurant opened. By any reasonable sense of fair play it is incomprehensible that a damaging review be based on only one visit particularly when that visit was conducted one day after opening. We further highlight that action continues against the SMH by way of an appeal against the initial court decision declining damages. The applicants advise that on the basis of their legal advice they are very optimistic that the full bench will decide in their favour, reversing the initial court decision.
We submit that the applicants’ inability to boost turnover and re-market are not indicators of their competence as business people but rather a combination of external factors impacting at once on business people that had made a very significant effort and commitment to business in Australia, a new business market.
It is perhaps timely, given the current legal proceedings in relation to the failure of OneTel, to compare the situation of OneTel and the inability of Jamie Packer and Lachlan Murdoch and their business partners to turn around the company despite the huge financial and corporate resources at their disposal.
It is important to note that the applicants have secured a contract with Hemofarm Koncern A.D. in Belgrade to be the sole distributor in Australia and New Zealand and are clearly pushing ahead with Australian business initiatives. Initiatives that in turn offer benefits consistent with the benefit to Australia “test” and initiatives that offer the prospect for them to move beyond the problems which emanate from, and are tied to, the restaurant business.
We submit that given the high degree of subjectivity required to make a determination on 845.217 a negative finding could not be justified.
Further correspondence then ensued, including Ms Gacic’s representatives drawing attention to her success in the Court of Appeal in June 2006.
A delegate then made a decision on 24 August 2006, essentially maintaining the conclusions which had been foreshadowed. In relation to the 845.217 criterion, she said:
Clause 845.217
This regulation requires that:
The applicant has overall had a successful business career.
In order to assess an applicant’s eligibility decision makers are guided by the policy as set out in the PAM3: Schedule 2 Visa 845. It states here that:
Under policy, this criterion generally should not be considered satisfied if:
·    the applicant has been declared bankrupt in the last
5 years or
·    the applicant is (or has been) actively involved in a business that is (or has been) subject to insolvency, receivership or liquidation or
·    the business has suffered recent trading losses and the business is considered unlikely to be successful in the longer term and this can be attributed to the applicant’s role and decision making in the business. (That is, it is not intended that an applicant fail this criterion if the business is likely to be successful in the longer term despite trading losses resulting from external factors such as listed above).
Officers may (and should) take into account:
·    the applicant’s level of decision making and responsibility in the failed business
·    factors outside the control of the applicant
·    how many times the applicant has experienced bankruptcy or been involved in a failed business and
·    the applicant’s history in business since any bankruptcy/failed business.
As I have no evidence of the applicant’s business career prior to her arrival in Australia I will look at the businesses she has been involved in here.
A review of all the documentation provided, as well as the records held by ASIC, show that the applicant has been a shareholder and director of three companies which have been placed under external administration, two of which, Syd Mirror and Coro Enterprises Pty Ltd, have now been deregistered, leaving substantial debts unpaid. The third, Ferretti, has estimated liabilities at the present time of $1,059,580 and with no assets and no visible trading activity, there is no evidence that this business will continue to operate or be successful in the future.
In relation to the above policy, therefore, the applicant has been involved in businesses that have gone into liquidation. As a Director and major shareholder of these companies the applicant has had, up until the time they have been deregistered or place under external administration, a high level of decision making and responsibility in them.
I acknowledge the applicant’s claims that her restaurant CocoRoco was closed some months after it opened as a direct result of a negative review by the Sydney Morning Herald’s Food Critic. I also acknowledge that the costs associated with the on-going litigation against the Sydney Morning Herald in relation to this matter, along with the write off of debts between Syd Mirror and Ferretti, have placed a financial strain on the latter company. I note the letter provided from Counsel acting for the applicant which states that he “anticipates the clients will succeed in their defamation claim” against John Fairfax Publications and Matthew Evans but goes on to state that “the claim is unlikely to be concluded before 2008”. I am not, however, able to keep this case open pending this decision. The regulation only requires me to find that the applicant has overall had a successful business record.
I acknowledge the applicant is now involved in another business, Vivadea, and I have seen marketing plans for this company. As this company has not commenced trading I am unable, however, to determine whether it is successful or not.
In light of the above, and in accordance with policy, I do not have enough evidence to find that the applicant has ‘overall had a successful business career”. In this case I can see no reason to go beyond the policy. I note that even if I was to look beyond policy to the usual dictionary meaning of the terms ‘overall’ and ‘successful’ my findings would be the same.
According to the Macquarie Dictionary (Second Edition 1991) ‘overall’ is defined as ‘covering or including everything’ and ‘success’ as the ‘favourable or prosperous termination of attempts or endeavours’. In light of these definitions I find that the applicant has established four businesses none of which have ended in a favourable or prosperous outcome. And while it is correct, as the applicant’s Migration Agent stated in his submissions of 16 December 2005 that ‘the odds are weighed heavily against new businesses succeeding with many new businesses failing’, clause 845.217 requires that the applicants overall have had a successful business career and I find in this case that the applicant at the time of this decision has not.
On the basis of these findings clause 845.217 is not met at the time this decision is made.

On appeal to the Tribunal, further submissions and correspondence addressed all the issues upon which the delegate had decided the matter. The further progress of the defamation proceedings was referred to from time to time, including reference to the High Court orders in June 2007, and to orders in the Supreme Court obtained in 2007 which terminated the previous winding up of Ferretti Pty Ltd on 21 May 2007.
The Tribunal as first constituted made a decision on 11 November 2008, which affirmed the delegate’s decision. That Tribunal member addressed only the criterion in 845.213 as a time of decision criterion under 845.221, concerning the maintaining of ownership interests in established main businesses in Australia. The Tribunal member did not address the other criteria which had been addressed by the delegate, including criterion 845.217.
The first decision of the Tribunal was set aside by consent orders made in this Court on 22 April 2009, upon concessions by the Minister that the Tribunal had failed to follow procedures under s.359A of the Migration Act in relation to a consulting accountant’s report obtained by the Department in 2006.
After the remitter, a letter was sent by the Tribunal to the applicants’ representatives dated 4 June 2009. This made it clear that the Tribunal would address the requirements of clause 845.221 in relation to all of the related clauses, being the time of application and decision criteria in 845.213 to 845.218 (Court Book page 1156). Extracts containing those criteria were attached to the letter. In my opinion, this correspondence made it clear that the reconstituted Tribunal might consider, inter alia, satisfaction of the ‘successful business career’ criterion in 845.217 and its continuous application under section 845.221.
The applicants’ agent certainly understood that this criterion was in issue, since he addressed all the relevant criteria in their response to the Tribunal’s letter lodged on 16 July 2009. In relation to criterion 845.217, the applicants’ agent submitted (Court Book page 1165):
Clause 845.217 requires that the applicant ‘has overall had a successful business career’. We refer the Tribunal’s attention to the outstanding success of Ms Gacic’s business endeavours in Australia up to the time of the defamatory article in the Sydney Morning Herald. The High Court has found the article was defamatory. Substantial documentation is on the Tribunal’s files in relation to that event and the hugely deleterious impact it had on the applicant’s business.
PAM3- MIGRATION REGULATIONS > GenGuide M – Business Skills visas – Visa Application & related procedures > OTHER BUSINESS – RELATED REQUIREMENTS, paragraph 53.5 directs officers to ‘have regard to external factors’ impacting on the operation of a business.
Despite the external impact on her business Ms Gacic has guided it back into profit (please refer to the enclosed Financial Statements). We submit that her efforts in so doing demonstrate outstanding perseverance and ability.
We submit clause 845.217 must be found to be satisfied
The reconstituted Tribunal then held a hearing on 25 November 2009. It received further extensive written submissions before and after the hearing, with further documentation concerning Ms Gacic’s current business affairs. The updating in relation to those affairs continued in further correspondence, which continued until the Tribunal made its present decision on 19 November 2010 as a result of several further invitations by the Tribunal to provide further information.
In response to invitations given at the hearing, Ms Gacic’s representatives forwarded a post-hearing submission and documentation on 22 January 2010. It attached references and a ‘CV’ detailing Ms Gacic’s ‘business career’ (see Court Book pages 1301 and 1325). It contained the following submission in relation to item 845.217:
In relation to clause 845.217 we refer you to the enclosures to this letter, documentation previously provided and previous submissions on this clause. The enclosures to this letter provide testimony to
Ms Gacic’s business achievements and success overall.
We note that policy provides for external factors to be considered in situations where a business has on the surface not been successful.
We submit that when considering Ms Gacic’s overall business career and taking account of the provisions of policy it is open to find that Ms Gacic satisfied 845.217.
At the time of the Tribunal’s hearing, a hearing in the defamation proceedings had been held in the Supreme Court before Harrison J, but his Honour had not given his judgment. As I have noted above, he published a judgment on 18 December 2009, and that event caused the Tribunal on 4 February 2010 to send the invitation to comment, which elicited the responses which I have set out above.
The Tribunal made further invitations to comment or provide information on 29 April 2010 and 2 September 2010, concerning the Ferretti Pty Ltd financial statements and records (see Court Book pages 1354 and 1369). Neither of these letters, nor any further correspondence from Ms Gacic’s representatives, expressly addressed criterion 845.217.
The Tribunal made its decision on 19 November 2010. The Tribunal’s decision was criticised today for its brevity by the applicant’s representative. He submitted that its brevity allowed an inference that relevant matters were not taken into account, and I shall address that submission specifically below. However, I would generally observe that in the light of the previous correspondence and decision-making, I do not consider that the Tribunal’s decision failed to meet the requirements of s.430 of the Migration Act, notwithstanding that other decision-makers might have felt it appropriate to include a more extensive narration of the background and evidence before the Tribunal. I certainly would not draw an inference from anything said by the Tribunal that it failed to consider all the documents on the file before it, and I accept the statements by the Tribunal that it had regard to the material on the file, including the material referred to in the delegate’s decision and in the correspondence referred to by the Tribunal. The Tribunal was obliged to give reasons only for being dissatisfied in relation to one of the essential criteria for the visa, and it is not to be criticised for not setting out evidence and discussion which would have been relevant to the other criteria which had been the subject of extensive exploration during the decision-making.
In its statement of reasons, the Tribunal briefly summarised the relevant criteria, and the course of the proceedings following the remitter by order of this Court. It referred to the submissions concerning the application of 845.217, which I have extracted above. It also referred to this topic being addressed at the hearing:
16. In relation to cl.845.217, the Tribunal noted that much of the information provided addressed the reasons for the demise of the applicant’s remaining main business, Ferretti Pty Ltd (Ferretti), rather than making the case that the applicant has overall had a successful business career. The applicants noted that prior to the negative review in the Sydney Morning Herald, the restaurant had been successful. The Tribunal commented that this “successful” period had been quite short and sought more information spanning the applicant’s business career. The representative stated that the return of Ferretti to profitability was a significant achievement. The applicant said that Ferretti was currently involved in limousine hire and was making profits.
The Tribunal noted Ms Gacic’s representative’s subsequent written submission which attached her CV and invoked the policy suggested in PAM3. The Tribunal said:
18. One of the enclosures with the submission dated 22 January 2010 summarises the applicant’s business career:
Overseas
·1980-86: Fashion model in Serbia.
·1985-1994: Producer and Executive producer with Radio Studio B and Radio Television Studio B in Belgrade. During this period the applicant commenced a personal business as an independent producer.
·1989-1999: Independent Producer, Shareholder and Director, East West D.O.O.
·1997-1999: Shareholder and Director, Damaskin D.O.O., a company owning a fashion retail shop and a toy shop in Belgrade.
Australia
·2000-2010: Shareholder and Director, Ferretti Pty Ltd.
·2002-2004: Shareholder and Director, Coco Roco restaurant.
·2005-2010: Shareholder and Director, Vivedea Pty Ltd (Vivedea). The company was established in 2005 as a vehicle for distributing pharmaceuticals manufactured by Hemofarm in Serbia. The applicant notes 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.
19. Also enclosed with the submission dated 22 January 2010 are supporting references by former and current business associates of the applicant.
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.
Conclusions
27.    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.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration by the Tribunal. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether Ms Gacic and Mr Ciric satisfy the criteria in 845.217 and 845.221, whether on the evidence before the Tribunal or otherwise.
I do not have power myself to decide whether they should be given any permission to stay in Australia. These are matters which are the province of the Minister and his delegates; and of the Migration Review Tribunal to the extent that they arise in a matter before it.
The grounds of the application, which were not amended by any amended application, were as follows:
The Tribunal found that whilst the first applicant had achieved some modest success in the field of business (para 22) and was the director and shareholder of a number of small businesses it found with the closure of her main business following a defamatory attack in the Sydney Morning Herald, the applicant’s fortunes had “declined dramatically”. The Tribunal erred in law and in its jurisdiction however, when it failed to ask itself:
a)whether the applicant would thereby become entitled to damages, the restoration of her business reputation and enjoy a return to profitability following a ruling by the High Court that the review of her restaurant had been defamatory,
and
b)whether the defamatory attack could be seen under ministerial policy as an external event over which the applicants had no control,
and
c)whether these two factors when combined would allow the Tribunal to find that overall the applicants had been successful in their business and thus met the requirements of clause 485.221 of the Migration Regulations 1994.
The principles of jurisdictional error invoked by these grounds are not easily identified, and the written submission filed by the applicants’ representative does not make them easier to understand. However, they have been explored in oral submissions today, and the applicants’ representative endeavoured to give them better focus.
As I understand it, a suggestion in the written submissions that “it was incumbent on the Tribunal to have deferred its decision until the Court of Appeal handed down its judgment, and by doing so it failed to afford procedural fairness to the applicants” was not pressed, at least insofar as it asserted a failure to afford procedural fairness under procedures governed by Migration Act.
That concession, in my opinion, was properly made. There was no obligation on the Tribunal to adjourn or delay making its decision on the matter before it, particularly in circumstances where no request that it should do this had ever been made to the Tribunal on behalf of Ms Gacic. As I have noted above, the correspondence in which the Tribunal was informed of the lodging of an appeal from Harrison J’s judgment suggested that an appeal had been filed, but made no application that the Tribunal should await the outcome. No subsequent submission was made on her behalf, informing the Tribunal of any progress in relation to an appeal, nor requesting any further delays. The Tribunal was under an obligation under the Migration Act to arrive at a decision, and it appears to me that Ms Gacic received a great deal of accommodation in the course of the protracted proceedings, both before the delegate and in the Tribunal, in relation to the speed of decision-making.
As I understood the submission of Ms Gacic’s representative today, it was that the Tribunal’s statement of reasons revealed an omission to discuss the implications of there being an outstanding appeal from Harrison Js judgment, in circumstances where this was clearly relevant to its decision-making under criterion 845.217. He submitted that I should infer that the Tribunal overlooked the fact that there was an outstanding appeal, and therefore overlooked considerations attaching to that fact which would have been relevant to the application of the criterion. Those considerations being, it was submitted, a potential argument by Ms Gacic that she still had a prospect of substantial damages and of vindication of her business reputation. It was submitted that a consideration of the prospect of achieving this would then allow a different characterisation of the successfulness of her business career over the period between the visa application and the time of decision by the Tribunal.
The representative’s submission might not have been put in those terms, but it appears to me that this is the best way he could put his grounds of review, consistent with the interpretation of the criterion adopted by Logan J. A submission along those lines had been, perhaps obliquely, put to decision-makers before Harrison J’s decision was published, at times when the outcome of the defamation litigation perhaps appeared more rosy for Ms Gacic than it might have appeared after Harrison J’s judgment.
However, it is difficult to see how the Tribunal could have been expected to have judged the prospects of an appeal from Harrison J’s judgment. The judgment itself is not in the Court Book. There is no evidence that the Tribunal was ever addressed on the terms of Harrison J’s judgment and the grounds of an appeal. The terms of any actual or proposed notice of appeal were not shown to the Tribunal, and are absent from the Court Book. It is even unclear to me, on the evidence in the Court Book, that an appeal had actually been filed, as distinct from notice of an intention to consider filing an appeal.
I accept that this was not a matter upon which Ms Gacic was invited to give further submissions, in particular in the correspondence which was responded to on 4 March 2010. However, she certainly had the opportunity to make the submission which is now made to me. In the absence of a clear submission to the same effect made to the Tribunal, it is difficult to criticise the Tribunal for not giving the issue more prominence in its reasons.
In my opinion, the contended failure to address a relevant consideration, being the fact of the existence of appeals and the possible further considerations which are argued to attach to that fact, should fail for several reasons.
Initially, in my opinion, it fails because I am not prepared to draw the inference that the Tribunal overlooked the fact that Ms Gacic might still be continuing her legal proceedings by way of an appeal from Harrison J’s orders. I accept that judgments of the High Court allow, at times, inferences of a failure to consider evidence and submissions from omissions in statements of reasons (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75], Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [33]-[36], and Minister for Immigration v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [33], [73]). However, that inference is to be drawn with caution, and in the light of the manner in which the issues have been pursued before the Tribunal and in which the matter was decided by the Tribunal.

In the present case, I would not conclude from the brevity of the Tribunal’s reasons that it failed to consider any of the relevant correspondence in the file. In particular, I would not draw an inference that it overlooked the recent correspondence concerning Harrison J’s order. That correspondence had been conducted after the Tribunal’s hearing, and in my opinion is unlikely to have been overlooked by it. In my opinion, the Tribunal must have been aware at the time it made its decision that there might have been an outstanding appeal. I am inclined to think that the Tribunal expressly indicated an awareness of that fact, in the third dot point under its paragraph 23, extracted above, where there is a suggestion that Ms Gacic was continuing to be “preoccupied with legal proceedings”. I would also not read the reference in its paragraph 25 to “the subsequent extensive litigation”, as not encompassing litigation which might still be on foot.
A further reason for not drawing an inference that the Tribunal overlooked the submitted fact and related considerations, arises from my understanding of the path of reasoning followed by the Tribunal in relation to item 845.217. In particular, in paragraph 25, the Tribunal, in my opinion, appears to have understood that it had to address a past continuous period of time, being the position at time of visa application continuing through to the time of decision, and that it had to assess in relation to that period and those times, whether Ms Gacic could be characterised as “overall” having “a successful business career”.
It appears to me that the Tribunal, in effect, concluded that Ms Gacic’s litigation explained and evidenced a lack of business success over the past period ending at the date of decision, rather than proved or explained a successful career. Such an opinion was, in my opinion, clearly open by the time when the Tribunal made its decision. The Tribunal’s characterisation of the relevant past period, as showing an unsuccessful business career, allowed for the possibility that her career might continue into the future, and might in the future be accompanied by a turnaround arising from success in the litigation. However, an assessment of the prospect of a future successful career was not required under item 845.217, and the absence of discussion about it is therefore explained.
I would not, therefore, infer from paragraph 25 that the Tribunal was not aware of the possible future beneficial implications to Ms Gacic’s business career if she achieved success in the outstanding litigation. Rather, in my opinion, it was not relevant to its reasoning for it to put those matters at the forefront of its discussion of the present characterisation of Ms Gacic’s career. The criterion required to be addressed by the Tribunal necessarily involved a very broad value judgment, and I am not persuaded that the Tribunal has not properly understood and undertaken its statutory task.
Criticisms were made in the applicants’ written submission that the Tribunal did not engage in a definitional process in relation to the words used in item 845.217. However, in my opinion, the Tribunal was not required, as a matter of jurisdiction, to engage in such an exercise. It was open to the Tribunal to conclude that the language of 845.217 used ordinary language and did not need further explanation.
I am not persuaded that the Tribunal’s reasoning indicates any failure to consider a matter which had to be addressed by the Tribunal, nor any error of law or other jurisdictional error arising from its application of criterion 217 as extended by criterion 221.
Taking into account all the submissions that are made to me today, I have concluded that the application should be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 16 June 2011