Goo & Ors v Minister for Immigration
[2006] FMCA 1157
•24 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1157 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359A, 424A Migration Regulations 1994 (Cth), Sch.2, sc.457.223 |
| Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration v Yusuf (2001) CLR 323 |
| Applicant: | BON SOO GOO |
| Second Applicant: | YOUNG SOOK HAN |
| Third Applicant: | BUM MO GOO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1826 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr L J Karp |
| Solicitors for the Applicant: | Mr N Dobbie of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Ms A Nesbitt of Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 12 July 2005 is dismissed.
The first and second applicants pay the first respondents costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1826 of 2005
| BON SOO GOO |
Applicant
| YOUNG SOOK HAN |
Second Applicant
| BUM MO GOO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 July 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 15 June 2005, affirming a decision of the delegate of the first respondent made on
2 August 2003, refusing to grant the applicants a Temporary Business Entry (Class UC) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
For the purposes of these proceedings, the applicants tendered and applied for the following affidavits of Nigel James Dobbie, solicitor, to be admitted into evidence:
a)Affirmed on 12 July 2005 (“first affidavit of Mr Dobbie”);
b)Affirmed on 5 July 2006 (“second affidavit of Mr Dobbie”). Annexed to this affidavit is the transcript of the Tribunal hearing held on 5 May 2005.
The solicitors for the respondents filed and served a Court Book (“CB”) on 25 August 2005.
Background
The Tribunal decision of C Packer, reference N03/06340, provides the following background information. Mr Bon Soo Goo, the primary visa applicant, is a national of Korea. He applied with his wife, Mrs Young Sook Han and their son Bum Mo Goo (born in 1989) for a Temporary Business Entry (Class UC) visa on 23 September 2002.(CB 214)
On 2 December 2000, the applicants entered Australia on Electronic Travel Authorities with permission to remain until 2 March 2001.
On 26 September 2001, they were granted Subclass 457 (Business (Long stay)) visa. The applicant husband was sponsored by Shoepro International Pty Ltd to fill the position of Toolmaker (ASCO code 411311). The applicants’ visas ceased on 26 September 2002 and since then, they have held bridging visas granted on the basis of the application for a Temporary Business Entry (Class UC) visa.(CB 215)
The delegate indicated that the visa was not granted on the basis that the applicant husband was not a genuine service-seller representing the Korean company Dongsung Precision Industrial Co Ltd, within the context of sc.457.223(8) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate considered the information provided and found that the sole agency agreement between Dongsung Precision Industrial Co Ltd, a Korean company, and the business represented by the primary visa applicant, DSP Australia states “DSP Australia shall act as the sole and exclusive agent for the manufacture, for the products (sales and service) specified in the under mentioned territory: Australia and New Zealand”. The applicant husband did not negotiate or enter into agreements only but was involved in the sales and service of Dongsung Precision Industrial Co Ltd products.(CB 215)
The delegate found that this sole agency agreement did not meet sc.457.223(8)(b) of the Regulations, which requires that the representation involve negotiation or entering into agreements for the sale of services, but not the actual supply or direct sale of those services. In addition, the delegate found that the printouts from the various company websites linked DSP Australia to Dongsun Precision Industrial Co Ltd as a ‘regional office’ carrying out the same functional activity of the main company (sales and service). One printout actually lists the visa applicant as the regional office manager for Dongsung Precision Industrial Co Ltd.(CB 215)
Tribunal’s Findings and Reasons
The Tribunal’s findings are set out in paragraphs 23 to 25 of its decision and I reproduce those paragraphs for the purposes of this judgment:
23. Available evidence shows that the visa applicant has set up a business called DSP Australia in Sydney. The visa applicant has been described as a Production Manager for that business. The business takes orders in Australia, products from Korea are shipped to DSP Australia which does further work or tests on them in a factory, and then sells them to Australian businesses. The visa applicant takes his income from DSP Australia. The Tribunal finds that the visa applicant is involved in the actual supply, or direct sale, of the services.
24. After considering the legislation, policy considerations and available evidence, the Tribunal finds that the visa applicant does not satisfy clause 457.223(8)(b):
(b) the representation involves negotiating, or entering into agreements, for the sale of services but does not involve the actual supply, or direct sale, of the services; and
25. Given the findings made above, the Tribunal has no alternative but to affirm the decisions under review.
Application for Review of the Tribunal’s Decision
On 12 July 2005, the applicants filed an application for review under s.39B of the Judiciary Act. At the hearing of 17 July 2006, counsel for the applicants sought to file in Court an amended application. As no objection was raised by counsel for the respondents, leave was granted. The amended application contains the following grounds:
1.The Migration Review Tribunal constructively failed to exercise its jurisdiction under the Act.
Particulars
(i)The Migration Review Tribunal breached s359A of the Act.
(a) The Tribunal failed to give to the Applicants, in writing, particulars of the information that it obtained from a company profile for DSP Australia, describing the First Applicant as a production manager, which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the Applicants understood why it was relevant to the review; and failed to invite the Applicants to comment on it. The Tribunal relied in part on that profile to find that the First Applicant did not satisfy subclause 457.223(8)(b) of the Migration Regulations 1994 because he was involved in the actual supply or the direct sale of the services as a production manager.
(b) The Tribunal failed to give to the Applicants, in writing, particulars of the information that it obtained from a sole agency agreement dated 10 April 2002 between Dongsung Precision Industrial Co Ltd and DSP Australia (represented by the First Applicant), which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the Applicants understood why it was relevant to the review; and failed to invite the Applicants to comment on it. The Tribunal relied in part on that profile to find that the First Applicant did not satisfy subclause 457.223(8)(b) of the Migration Regulations 1994 because he was involved in the actual supply or the direct sale of the services.
(ii)The Migration Review Tribunal asked itself the wrong question or failed to take into account a relevant consideration.
(a) The Tribunal failed to ask whether the First Applicant would be working as a service seller. Rather, the Tribunal limited its enquiry to what the First Applicant was doing at the time it made its decision.
(iii)The Migration Review Tribunal failed to consider and decide on the case advanced by the applicant, that being that the applicant was paid by the Korean parent of DSP Australia and that he, and DSP Australia acted as facilitators, or conduits for the parent company.
Reasons
Mr Karp, for the applicant, submits that the applicant husband originally made his visa application on the basis of him being an independent executive and a service seller.(CB 2-4) He later altered this and based the application on simply being the service seller (CB 121), which invokes sc.457.223(8)(b) of the Regulations:
Services sellers
(8) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is a representative of a supplier of services who is located outside Australia; and
(ii) proposes to represent the supplier in Australia; and
(b) the representation involves negotiating, or entering into agreements, for the sale of services but does not involve the actual supply, or direct sale, of the services; and
(c) the Minister is satisfied that the proposal has not been made only for the purposes of securing the entry of the applicant to Australia.
Significantly, the Tribunal and the delegate did not get to sc.457.223 (c) because they found that the applicant husband did not meet sc.457.223(b): “does not involve the actual supply, or direct sale, of the services”.
Mr Karp indicated that he would rely primarily on SZEEU v Minister for Immigration [2006] FCAFC 2 at [179] where Weinberg J addressed the issue of information which was before the delegate and the Tribunal and some of the anomalies which may occur:
…If, however, the Tribunal proposes to use the earlier statement as the “reason”, or “a part of the reason” for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1).
Section 359A(1) has the same effect as s.424A(1) of the Act when the decision is made by the Migration Review Tribunal.
In the Tribunal decision under the heading ‘Findings and Reasons’, is a list of documents provided by the applicant to the Department.
Mr Karp submits that they were supplied to the Department because at least one of the documents, the Sole Agency Agreement, was not given to the Tribunal.(CB 51)
In support of that contention Mr Karp referred the Court to the Tribunal decision at [17] which relates to information which was before the delegate but not the Tribunal.(CB 217) The Tribunal went on to note:
23. Available evidence shows that the visa applicant had set up a business called DSP Australia in Sydney. The visa applicant is described as a production manager for that business.(CB 218)
Mr Karp argued that the term ‘production manager’ appears in documents supplied to the delegate.(CB 80) Mr Karp contends that the Tribunal at [23] of its reasons was referring to documents supplied to the Department, because that was what it referred to in the list of information at [17] of its reasons upon which it relied. Mr Karp submits that this information should have been disclosed to the applicant pursuant to s.359A(1) of the Act. However, there was no disclosure, which resulted in jurisdictional error: SAAP v Minister for Immigration [2005] HCA 24; SZEEU v Minister for Immigration.
Mr Smith contends that the premise upon which Mr Karp bases the s.359A(1) breach is fundamentally flawed. The exception found in s.359A(4)(b) does not refer to the source of the information, but, rather, whether or not the information itself was given by an applicant.
Once it is found, as conceded by Mr Karp, that the applicant did in fact give the relevant information to the Tribunal, then regardless of what the Tribunal says about that information, it does not have an obligation under s.359A(1). Mr Smith submits that there is no authority to the contrary.
I accept the analysis that the identification of Mr Bon Soo Goo as production manager for DSP Australia was an essential part of the Tribunal’s reasoning that the applicant was involved in the actual supply of services and consequently did not satisfy sc.457.223(8)(b).
I also accept that the Tribunal did indicate in its decision that the print out of the websites of DSP Australia show that the applicant husband was the production manager for DSP Australia.(CB 217) The applicant husband did provide that material listed in the Tribunal decision at [17] to the Minister in his original visa application on 20 September 2002.(CB 80) However, after the agent for the applicants lodged the application for review to the Tribunal, the Tribunal wrote to the applicants and their agent inviting them to provide additional material in support of the application.(CB 157-158) A response was forwarded by the agent on 2 May 2005, including printouts of the DSP Australia website, which again identify the applicant as the production manager.(CB 171-207) That letter is referred to in the Tribunal decision.(CB 217) I accept the submission by Mr Smith that there is nothing in s.359A of the Act which requires identification of the “source” of the information. In the absence of any authority to the contrary, I accept Mr Smith’s submission and find that Mr Karp’s first ground cannot be sustained.
The second element in respect of a s.359A breach relates to the sole agency agreement between Dongsung Precision Industrial Co Ltd of Korea and DSP Australia.(CB 51) The terms of that agreement are:
1.DSP Australia shall act as the sole and exclusive agent for the manufacturer, for the products (sales and service) specified in the undermentioned territory:
Australia
New Zealand
2.This agreement shall remain in force until terminated by either party, by giving at least sixty days advance notice.
Mr Karp submits that the term “sales and service” appears to have been relied upon by the delegate in making its decision, which was summarised by the Tribunal:
The delegate found that this sole agency agreement did not meet subparagraph 457.223(8)(b) which requires that the representation involves negotiation or entering into agreements for the sale of services but not the actual supply or direct sale of those services.(CB 215)
The Tribunal member went on to look at the printouts from the websites. The Tribunal noted the delegate’s decision on the sole agency agreement, the agreement itself and then made its conclusion at paragraphs 22 and 23 of its decision.(CB 218)
Mr Karp then drew the Court’s attention to SZEEU v Minister for Immigration at [164] – [165] per Weinberg J who looked at whether information used to corroborate a conclusion already arrived at comes within s.424A of the Act (and by analogy s.359A):
164.…Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play “a part” in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal’s reasons must, of course, be read as a whole.
165.The possibility that the similar claims information contributed to the Tribunal’s rejection of the appellant’s claim cannot realistically be excluded...
Justice Allsop addressed the same kinds of issues in SZEEU v Minister for Immigration at [215] – [216]:
215.In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
216.…The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A.
Mr Karp drew the Court’s attention to where the Tribunal set out the delegate’s assessment and reasons for not granting the visa, particularly at [10] of its reasons:
10. The delegate indicated that the visas were not granted on the basis that the primary visa applicant was not a genuine service seller representing the Korean business Dongsung Precision Industrial Co Ltd, within the context of paragraph 457.223(8). The delegate considered the information provided and found that as the sole agency agreement between Dongsung Precision Industrial Co Ltd, a Korean company, and the business represented by the primary visa applicant, DSP Australia states “DSP Australia shall act as the sole and exclusive agent for the manufacture, for the products (sales and service) specified in the under mentioned territory: Australia and New Zealand”, the visa applicant does not negotiate or enter into agreements only but is involved in the sales and service of the Dongsung Precision Industrial Co Ltd products. The delegate found that this sole agency agreement did not meet subparagraph 457.223(8)(b) which requires that the representation involves negotiation or entering into agreements for the sale of services but not the actual supply or direct sale of those services. In addition the delegate found that the printouts from the various company websites linked DSP Australia to Dongsung Precision Industrial Co Ltd as a ‘regional office’ carrying out the same functional activity of the main company (sales and service) as one printout actually lists the visa applicant as the regional office manager for Dongsung Precision Industrial Co Ltd.(CB 215)
The Tribunal also made references to documents provided by the applicant in support of his application:
17. A copy of a sole agency agreement dated 10 April 2002 between Dongsung Precision Industrial Co Ltd and DSP Australia (represented by the visa applicant). The agreement indicated that DSP Australia would act as the ‘sole and exclusive agent for the manufacturer for the products (sales and service) specified in the undermentioned territory: Australia & New Zealand’.(CB 217)
The Tribunal then concluded:
22.At the hearing the visa applicant stated amongst other things that he managed the business DSP Australia. Products were shipped from Korea to the business which did further work on, and checked, the products and then the business sold the products. The visa applicant stated that he received his income from the Korean company: that company had shipped equipment to Australia and DSP Australia sold the products and he received his income from the sales.
23.Available evidence shows that the visa applicant has set up a business called DSP Australia in Sydney. The visa applicant has been described as a Production Manager for that business. The business takes orders in Australia, products from Korea are shipped to DSP Australia which does further work or tests on them in a factory, and then sells them to Australian businesses. The visa applicant takes his income from DSP Australia. The Tribunal finds that the visa applicant is involved in the actual supply, or direct sale, of the services.(CB 218)
Mr Karp contends that having effected the decision in such a way the Tribunal should have disclosed the information and the issue involved to the applicant for comment pursuant to s.359A of the Act and the failure to do so was a jurisdictional error.
Mr Smith submits that in respect of the second element of the s.359A breach, if something was said by the applicant at the Tribunal hearing then that information is given for the purpose of the review. Even if that were not the case, the consideration would be whether the information did in fact come from the sole agency agreement.(CB 51) The sole agency agreement notes that the agreement concluded on a particular day. It describes (in very poor terms) what the agreement is and the countries it covers. The persons who signed the document did so as representatives of their companies.Particularly, the applicant husband signed for DSP Australia.
Mr Smith submits that a critical analysis of the Tribunal decision at [23] shows that the decision did not rest on the sole agency agreement. The relevant statements are:
a)The applicant husband set up a business called DSP Australia in Sydney. That information is not contained in the sole agency agreement.
b)The applicant husband was described as a production manager. That comes from the internet service and not from the sole agency agreement.
c)The business takes orders in Australia for the manufacturer in Korea, its delivery to Australia, modifications and adjustments on its arrival and the delivery to the Australian customer. Those details were provided at the Tribunal hearing and are not contained in the sole agency agreement.
d)The applicant takes his income from DSP Australia. Again, this does not come from the sole agency agreement.
Mr Smith submits that while the sole agency agreement is listed in the Tribunal decision (at [17]) and was not given to the applicant for the purpose of review, it is clear that its contents did not form the reason or part of the reason for the Tribunal’s decision.
The Tribunal decision at [22] and [23] appears to be derived from the applicant’s responses during the Tribunal hearing, rather than from the sole agency agreement. The Tribunal’s statement at [23] about the applicant’s role, income and business process cannot be found in the sole agency agreement. I do not believe that the second ground of review can be maintained on the basis that the contents of the sole agency agreement formed part of the reasons for the Tribunal’s decision, particularly in light of the analysis submitted by Mr Smith in [23] above.
Mr Karp submits a third argument refers to the use of the word ‘representation’ in sc.457.223(8)(a) and (b). He contends that ‘representation’ in sc.457.223(8)(b) refers back to the proposal to represent the supplier in sc.457.223(8)(a). That is not with reference to what happens in the present, but what is intended for the future.
Mr Karp argues that the Tribunal entirely missed that distinction by concluding at [23] of its reasons:
The Tribunal finds that the visa applicant is involved in the actual supply, or direct sale, of the services.(CB 218)
Mr Karp submits that this is a misinterpretation of the law and a jurisdictional error: Craig v State of South Australia (1995) 184 CLR 163; Minister for Immigration v Yusuf (2001) CLR 323.
In respect of the application that the Tribunal did not properly understand the test to be applied per sc.457.223(8)(b), Mr Smith submits this was overcome by the time the matter went to the Tribunal. At that time, the applicant said no more than that he proposed to continue doing in Australia what he had been doing since at least September 2002. That contention is supported by a letter from the applicant’s migration agent to the Department.(CB 141) The letter states as a matter of history that Mr Sang Woon Han, director of the Korean company, appointed Mr Goo as that company’s sole and exclusive service supplier based in Sydney. It further states:
This is why he’s been chosen to act as overseas service seller. (CB 142.2)
At the Tribunal hearing, the applicant gave evidence about what he would do in the future. In answer to question 24, the applicant replied:
…At the moment I’m in charge of managing the DSP Australia.(second affidavit of Mr Dobbie, p.6)
At question 32, the Tribunal asked:
All right. Now, how long has this been going on?
Answer:
It’s been three years and six months.
Question 33 asked:
All right, sir. So when you said this was all future plans, nonetheless, you’ve been doing this for the last three and a half years?
Answer:
Yes…(second affidavit of Mr Dobbie, p.9)
Mr Smith submits that according to the applicant husband there is absolutely no distinction between what he had been doing and what he would be doing in the future. That means that if what he had been doing does not meet the requirements of sc.457.223(8)(b), what he would be doing will not meet them either. For that reason, the Tribunal did not distract from its task of assessing the applicant husband’s future or what he proposed, and properly addressed the claim as framed by him.
I accept the submissions made by Mr Smith that the applicant husband’s own evidence, together with submissions made by his agent, indicate that he has been directly involved in the post-manufacturing of the product supplied by the Korean company. Consequently, the applicant husband does not meet the requirements of sc.457.223(8)(b). Whether or not the ‘representation’ relates to the applicant’s role in the business in the past, present or future is not determinative because the applicant’s role is unchanged between those time periods. This ground of review cannot be sustained.
In respect of the last particular, which is the Tribunal’s failure to address the case put by the applicants, Mr Karp submits that the transcript of the hearing (as set out below) summarises what DSP Australia actually does. Mr Karp submits that DSP Australia acts as a conduit by receiving goods from Korea, performing extra remedial work on those good and then passing them on. There is nothing in the transcript which shows that DSP Australia received payment for the goods. There is a contract between the Korean company and the Australian customer, with the money being given to DSP Australia.
Mr Goo used at least some of this money to finance the Australian operation.
Mr Karp submits that it is not the applicants’ case that Mr Goo takes his income from DSP Australia. In support of that contention the following evidence is submitted from the transcript of the Tribunal hearing where Mr Goo made the following statements:
Q.22All right. So that means, sir, that you work as a manager in, or for, DSP Australia.
A.This is only a method used to do marketing in Australia…The existing system in that business is that I’m based in Australia and when Australian tooling manufacturers wish to do some business with the Dong Sung, the business in Korea, then the Dong Sung company will contact me to continue, follow up the business project with these existing Australian companies. Normally, I visit these tool dies, I mean, manufacturing companies in Australia to give them the technical consultation and then make the base drawing out of this business consultation with the Australian businesses and then I will send that off to the Korean Dong Sung, the company and then they will make the dies and then they will send the example to DSP Australia, I mean, through to me and then going through – because sometimes that’s, that what the Australian companies want, didn’t come out exactly what they want, then I had to go through a process and then I will just make the adjustment to satisfy Australian customers.
Q.24All right. And DSP Australia is the company that you work for?
A.Like I say, it should be considered that I’m working for Dong Sung, Korean company. At the moment I’m in charge of managing the DSP Australia. (second affidavit of Mr Dobbie, pp.5-6)
In response to Q.25:
…Once this mould was shipped and, you know, came to our storage (indistinct) because machinery facilities are used to adjust, you know, the shipment from Korea, so DSP Australia is just providing services just on behalf of the Dong Sung (indistinct) the company in Korea.
Q.28Well, sir, I don’t fully understand your answer about your pay. You work for DSP Australia. Now, don’t they pay you for your work?
A.Because of the visa, impending visa application, it has been held up, you know, the deal that I have with the Dong Sung company, we are planning to have the Australian visas in the future but it’s only in the process of preparation, the future business. At the moment we are in the process of preparation for the future business. At the moment I just, I get, you know – I’ve already provided supporting documentation but some machineries are shipped from Dong Sung company to Australia which I use in the DSP Australia.
Q.29All right, sir.
A.And I get some fund that’s been transferred from Korea to support me in Australia.
Q.35Nonetheless, you’ve said that you get paid directly from the Korean company. Is that right?
A.Yes.
Q.44All right. So you’re getting your income from DSP Australia?
A.Well, because I didn’t receive monetary salary from Dong Sung company but instead I received mould bases which generate the money from the Australian company so I would believe that I’ve been paid by the Dong Sung company. (second affidavit of Mr Dobbie, pp.7-11)
Mr Karp submits that the Tribunal member concluded that Mr Goo obtains payment from DSP Australia:
Q.45All right, sir. DSP Australia is a company that is a separate legal entity, therefore if that company is selling goods and you’d get the money from the company, then you are being paid by DSP Australia. There may be another arrangement between DSP Australia and a Korean company, however it seems to me that the Korean company is not paying your salary. (second affidavit of Mr Dobbie, p.11)
Mr Karp argues, however, that there is no evidence that DSP Australia purchased goods from the Korean parent company to sell to Australian customers. The evidence was that DSP Australia was a conduit.
Mr Karp submits that the Tribunal conclusion at [32] above and its findings at CB 218, that the applicant takes his income from DSP Australia, is incorrect.
Mr Karp submits that the applicant did not claim, as is stated in the Tribunal decision at [23], to take his income from the money which would otherwise be payable and sent to the Korean parent company. Mr Karp submits that the Tribunal came to a mistake of fact, which is identified first in the transcript (above at [31]) and, secondly, in its decision at [23]. It is submitted that a mistake of fact can mean that the Tribunal missed an issue which was important to resolve in the conduct of the hearing. Mr Karp refers to NABE v Minister for Immigration (No.2) [2004] FCAFC 263 at [63] per Black CJ, French and Selway JJ:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]).
Mr Karp referred again to the Tribunal decision at [23] and submits that because the Tribunal found that Mr Goo took his income from DSP Australia, it concluded that he was involved in the actual supply or direct sales of the goods. The fact that the Tribunal made a mistake of fact in concluding from where Mr Goo received his income, meant that it misintepreted the applicant’s claim and therefore misconstrued what should have been the result.
Mr Smith submits that the correct question should be what inference can be drawn from the evidence of Mr Goo and how the transaction between him and the Korean company can be categorised in terms of payment of salary. It is not a question of where the money actually comes from, but more importantly, who actually made the payments. In that respect, it was open to the Tribunal to conclude that the applicant husband was not receiving payment from the Korean company, but from the Australian entity. Mr Smith submits that the Tribunal’s thinking is apparent from Question 43 of the hearing.(second affidavit of Mr Dobbie, p.11) That question records the applicant husband’s manner of categorising or classifying what actually happened. The Tribunal then explained at Question 45:
DSP Australia is a company that is a separate legal entity, therefore if that company is selling goods and you’d get the money from the company, then you are being paid by DSP Australia.(second affidavit of Mr Dobbie, p.11)
I
t was open to the Tribunal to infer, particularly from Mr Goo’s own evidence, that as the money in fact came from Australia, it was from the Australian entity. That is a finding of fact and the only question of law is whether it was one that was reasonably available.
The applicants interpreted the facts one way, and the Tribunal another. It is submitted that for those reasons, there is no error of law or of jurisdiction in the Tribunal decision.
It is not the role of this Court to dispute the Tribunal’s findings of fact, including whether the applicant husband received his income from DSP Australia or the Korean parent company. That conclusion is reasonably open to the Tribunal on the evidence given by the applicant husband at its hearing. I am not satisfied that this finding by the Tribunal results in a jurisdictional error.
Conclusion
I am not satisfied that any of the four grounds of review contained in the amended application can be sustained. I accept Mr Smith’s submission that each of the issues raised in the pleaded grounds has been considered and correctly handled by the Tribunal. Consequently I believe that the application should be dismissed.
I am satisfied an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 23 October 2006