Gao v Minister for Immigration - [2007] FMCA 1871

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1871

MIGRATION – Review of decision of MRT – where applicant does not fulfil visa criteria – where applicant misunderstands the criteria being applied by the Tribunal.

Migration Regulations1994
Migration Act 1958

First Applicant:

JINBAO GAO

Second Applicant:

XIAO YAN GAO

Third Applicant:

HONG XU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 2480 of 2006

Judgment of:

Raphael FM

Hearing date:

5 November 2007

Date of last submission:

5 November 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Blake Dawson

ORDERS

Application dismissed.
Applicant pay the first respondent's costs assessed in the sum of $5,000.00.
The name of the first respondent be changed to the Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2480 of 2006

JINBAO GAO

First Applicant

XIAO YAN GAO

Second Applicant

HONG XU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Jinbao Gao is one of three applicants seeking review of a decision of the Migration Review Tribunal signed on 28 July 2006 affirming a decision of a delegate that they were not entitled to the grant of Business Skills (Residence) (Class BH) visas.
Mr Gao is a National of China who first entered Australia in July 1996 on a Temporary Business Entry (Class UC) visa. On 21 February 1998 he was granted a Sub-Class 457 Business (Long Stay) visa that was valid until 2 August 2002.
On 4 May 2001 he applied for a Business Skills (Residence) (Class BH) visa and nominated two businesses in which he claimed he was involved. The first business was G and M Cosmetics Pty Limited. He said he had a 10 per cent shareholding in that business. The second business was Goldland Asia Pacific Pty Limited which he said was owned 100 per cent between himself and his wife.
The delegate of the Minister refused the application for the residence visas on 18 September 2002. The applicants applied for a review of that decision and the Tribunal affirmed the decision on 1 February 2005. The applicant applied for review to the Federal Magistrates Court where, by consent, the decision was set aside and the matter remitted to the Tribunal for further consideration. The hearing today concerns the second decision.
The applicant claimed that he was the export manager for G and M Cosmetics and owned at least 10 per cent of the company. He initially purchased 10 per cent of the business but there was a share transfer on 3 April 2001 under which he was said to have acquired a further 5 per cent [CB 35].
G and M Cosmetics has three main ranges of products; cleaning products, personal products, and skin care products. The company manufactured these products and the applicant's responsibility was to negotiate export contracts for them. The applicant claims considerable expertise as an export manager. The evidence he gave to the Tribunal indicated that the value of exports to the company amounted to approximately 15 per cent of its turnover.
The second company with which the applicant was interested was involved in the sale of perfume and scent packaging, specifically the import of glass bottles and perfume spray pumps [CB 19].
Mr Gao gave evidence that over the last few years his wife, who was his partner in the business, had been ill and he had been spending more and more time running Goldland.
As the Tribunal explains an applicant is entitled to utilise his association with up to two main businesses for the purposes of assessment as to whether he or she meets the criteria found in sub-class 845 of Sch 2 to the Migration Regulations1994.
The Tribunal in this case commenced by assessing the applicant against criteria in respect of G and M Cosmetics. It accepted that Mr Gao had at least a 10 per cent interest in that company at the relevant time and that he was the export manager. Where the applicant and the Tribunal parted company was in the Tribunal's assessment of his:
“Maintaining a direct and continuous involvement in the management of all those businesses from day to day, and in making decisions that affected the overall direction and performance of that business or those businesses.”
What Mr Gao was able to do, both to the Tribunal, and if I may so, to myself, was to put forward an impressive case about his expertise as an export manager. He claims to have considerable training and experience in this field and I am sure that he has. But that is not what was being considered by the Tribunal.
The Tribunal questioned the applicant about his involvement in the overall management of the company. The applicant conceded that he did not attend regular management meetings although he was significantly involved in any matters relating to exports. The applicant indicated that what the Tribunal found was a rather scant knowledge of the employees of the company and its senior management. The applicant has explained this to me as being a cultural difference and that may well be an explanation of why he was unable to give names to persons with whom the Tribunal expected him to have associated. But even if this was a misunderstanding on the part of the Tribunal it would not form a jurisdictional error and even if it misunderstood the evidence it had been given on that point it did not really feature in the Tribunal's decision-making. It was the names so much as Mr Gao’s inability to describe his interaction with staff at the company in any convincing detail or his attendance at meetings where matters of overall direction were discussed and decisions made.
The Tribunal also took into account the applicant's own admission that he now dedicated more time to Goldland and the Tribunal's finding from the applicant's evidence that he did not display a good knowledge of the overall financial situation of the company as revealed through the financial statements.
The Tribunal had some concerns about the manner in which the applicant was paid. He tells me today that the Tribunal changed his evidence at the hearing suggesting that he got a commission and not a salary but that is not really the case. The Tribunal, after noting the way in which his salary seems to fluctuate from amounts of less than $18,000 to $30,000 which it considered to be low amounts for an executive salary, came to the view that what the applicant was paid was "more in the nature of a commission for sales arranged than a salary that would be commensurate with the position of an experienced export manager”. That is the view of the Tribunal. It is the Tribunal's interpretation of the evidence. It does not change the evidence that was given.
The description of the applicant's work at G and M Cosmetics is all involved with the export business. That business is only a small percentage of the whole and because the other matters referred to by the Tribunal and discussed in these reasons were also taken into consideration it seems to me that the Tribunal had evidence from which it could properly come to the conclusion which it did, that Mr Gao did not comply with the requirements of cl 845.216.
During the course of the hearing the applicant frequently asked why the Tribunal had not questioned him about one matter or another, which indicates that even though he was represented he was not really aware of the requirement of an applicant to make his or her own case. The Migration Review Tribunal no less than the Refugee Review Tribunal is not a contradictor. The requirements of the Migration Act 1958 (the “Act”) are that the Minister be satisfied that a person is entitled to a visa and the duty of satisfying the Tribunal falls upon the applicant.
I am sure there are many cases in which an unsuccessful applicant has only wished that he or she had produced some particular document or called some evidence that may have eliminated doubts that a Tribunal has expressed. But it is for the Tribunal to indicate concerns, not to demand the production of documents or other evidence that are peculiarly in the knowledge of the applicant himself.
Having come to the conclusion that the applicant did not meet the criteria in cl 845.216 it was required to exclude his association with G and M Cosmetics in considering his eligibility for the visa. The Tribunal then turned its attention to Goldland. The difficulty which the applicant faced in using Goldland as his business was that it employed no one other than himself and his wife. The Tribunal found that this meant that he failed to meet the criteria in cl 845.222 which required the business to have employed not less than three full-time Australian employees throughout the period of twelve months prior to the making of the application.
At [CB 566] the Tribunal goes through the other possible forms of visa that the applicant could apply for under this sub-class but finds that none of them are relevant to his situation for the reasons given. So far as I am aware there is no suggestion that the Tribunal fell into jurisdictional error in the manner in which it came to those decisions.
The applicant has provided in a red book a 21-page submission and a copy of the transcript. He has also provided a secondary submission with some additional evidence that I am unable to consider because it was not before the Tribunal. A careful reading of the submissions made by the applicant reveal that they are essentially a subset of the matters which I have discussed in these reasons and they arise out of the applicant's misunderstanding both of the role of the Tribunal and of what is required under the criteria.
Ms McNaughton, in her helpful submissions, goes through the matters, and I would respectfully adopt what she has said from paragraphs 11 through to 26. Lest it should be said that I have ignored the applicant's complaints which may be suggested to amount to either actual or ostensible bias I should say that I am not satisfied that these have been particularised in a way which would allow me to helpfully indicate why I disagree. In the absence of such particularisation it would be mere guesswork on my part as to what the actual complaints were, but on the face of the document I am unable to see an indication that the Tribunal came to this decision-making process with a closed mind.
Having considered the Tribunal's decision as a whole and noted the applicant's submissions upon it I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. I dismiss the application. I order that the applicant pay the first respondent's costs which I assess in the sum of $5,000.00. I order that the name of the first respondent be changed to the Minister for Immigration & Citizenship.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: