Guo v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Guo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 474

File number:

MLG 561 of 2023

Judgment of:

JUDGE BLAKE

Date of judgment:

28 May 2024

Catchwords:

MIGRATION – Application for judicial review – where Applicant applied for a Business Skills (class EB) Business Innovation and Investment (subclass 188 visa) – where delegate determined the Applicant did not satisfy clause 188.224 of the Migration Regulations 1994 (Cth) – terms and meaning of clause 188.224 considered – meaning of whether ‘the Applicant has overall had a successful business career’ – Held application for review dismissed.

Legislation:

Migration Act 1958 (Cth) ss 29, 30, 31, 57, 57(1)(c), 65, 75.

Migration Regulations 1994 Schedule 2, item 188.224.

Cases cited:

FCT v Whitfords Beach Pty Ltd (1982) 150 CLR

Gacic v Minister for Immigration & Anor [2011] FMCA 403

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648

Re Industrial Relations Commission: Ex parte Australian Transport Officers Federation (1990) 171 CLR 216

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of hearing:

19 March 2024

Place:

Melbourne

Counsel for the Applicants:

Mr Guo

Solicitor for the Applicants:

VSTAR Lawyers and Consultants

Counsel for the Respondent:

Ms Chan

Solicitor for the Respondent:

Sparke Helmore Lawyers

ORDERS

MLG 561 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HUI GUO

First Applicant

KE JIN

Second Applicant

JINSHUO GUO

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	28 MAY 2024

THE COURT ORDERS THAT:

1.The Application filed on 3 April 2023, as amended 19 February 2024, be dismissed.

2.The Applicants pay the Respondent's costs of the proceeding fixed in the sum of $7,853 $8,371.30.

AND THE COURT NOTES THAT:

A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 29 May 2024.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application to review a decision made by a delegate of the Minister (‘delegate’) on 1 March 2023. The delegate refused to grant the First Applicant a Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The First Applicant is the primary applicant for the visa. The Second and Third Applicants were included on the application for the visa as members of the First Applicant’s family unit (collectively, (‘the Applicants’)). The First Applicant is a citizen of China.  

4. On 25 June 2020, the First Applicant applied for the visa (‘First Applicant’). On 1 March 2023, the delegate advised the First Applicant that he had not satisfied the criteria for the grant of the visa.

5. On 3 April 2023, the Applicants filed an application in this Court to review the decision of the delegate. The application was accompanied by a supporting affidavit.

6. Before me, the Applicants relied on the Amended Application for Review filed 19 February 2024 (‘Application’), the affidavit of Tao Jiang (‘Mr Jiang’) sworn 16 February 2024, and a written outline of submissions. The Minister relied on a written outline of submissions. A Court Book and Supplementary Court Book were prepared and I have had regard to those documents as well as to authorities, legislation, and associated documents to which I was taken.  

   FRAMEWORK

7. Section 65 of the Migration Act 1958 (Cth) (‘Act’) deals with decisions to grant or refuse visas. Sections 29 – 31 of the Act deal with, inter-alia, types of visas and classes of visas.

8. The Criteria for a subclass 188 visa is contained within Schedule 2 to the Migration Regulations 1994 (‘Regulations’). Relevant to the dispute before the Court is the criterion contained in item 188.224 of the Regulations. That item provides as follows:

   The applicant has overall had a successful business career.

   THE APPLICATION

   Ground 1

9. The first Ground of Review in the Application is:

   1.The delegate misconstrued the criterion of ‘overall had a successful business career’.

   PARTICULARS

   The misconstruction arises from some or all of the following:

   (a)the delegate considering that the mere existence of ‘significant accumulated losses’ was probative of whether the Applicant ’overall had a successful business career’, when on a proper understanding of the term ‘accumulated losses’, the fact that they began and continued to be negative were a function of those losses having already been accumulated when the Applicant commenced his involvement in the company;

   (b)the delegate considering that gross profit ratio of the company had ‘fluctuated’ over the relevant period was probative of whether the Applicant ’overall had a successful business career’, when it was not:

   (c)the delegate accepted that a reason for the gross profit ratio of the company ‘fluctuating’ and otherwise being as they were was a values-driven decision of the Applicant to provide job security, thus wrongly construing ‘;successful business career’ by reference to financial metrics only;

   (d)the delegate taking into account that the Applicant had ‘withdrawn from the management role in the Company during 2022’ and therefore ‘any aspiration you might have on applying your management skills ... would no longer materialise’, when the criterion of ‘overall had a successful business career’ was backward-looking, not forward-looking.

10. The Ground of Review advanced above is that the delegate ‘misconstrued’ the relevant criterion. The Ground of Review does not assert unreasonableness. It is not contended in the Ground of Review that there was a failure to take mandatory considerations into account, nor the taking into account by the delegate of irrelevant considerations.

11. In oral submissions, the Applicants contended that clause 188.224 must be read and construed objectively. It was contended that any other outcome would produce a result such that a visa could be granted or refused depending on the application of different tests. The Applicants submitted that when it comes to questions of construction, ‘there can only be one right answer’ and that ‘no latitude [is] given to a primary decision maker even where the primary decision was one about which opinions might reasonably differ’: see Edelman J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [127].

12. The submission above ran into immediate difficulty when I asked the Applicants to define what the one correct, or true objective meaning, of item 188.224 was. The Applicants did not offer any singular objective construction. Instead, the Applicants stated that they could not ‘put a finger on exactly what the metes and bounds of the test should be’, and then proceeded to fall back on the matters raised in the Ground of Review in order to submit the delegate had effectively strayed outside those metes and bounds. That is an unhelpful submission from a party who comes to Court asserting that there can only be one true or objective meaning of item 188.224. I also observe that this submission by the Applicants appeared on one view, to be inconsistent with submissions made later (see below) about the variety of subjective factors that they contended the delegate needed to take account of.

13. The Minister submitted that clause 188.224 ‘imports a discretionary value judgement to be made by reference to undefined factual matters’. That may be so – I note Smith FM in Gacic v Minister for Immigration & Anor [2011] FMCA 403 at [48] described the criterion as involving ‘a very broad value judgement’ – but any value judgment must necessarily be confined to the subject matter with which the criterion in 188.224 is concerned. That directs attention squarely to the words used in clause 188.224 and what those words mean.

14. The words ‘has overall had a successful business career’ are not defined in the Regulations. The legislature has not set out any matters that a decision maker must have regard to in determining whether an applicant has had overall a successful business career. Given these matters, the words in clause 188.224 must bear their ordinary meaning.

15. The word ‘successful’ is an adjective. The Macquarie Dictionary defines the term as follows:

    1.           achieving or having achieved success.

    2.        having succeeded in obtaining wealth, position, or the like.

    3.        resulting in or attended with success.

16. The term ‘successful’ of its nature requires a subject or point of comparison. One cannot claim to be successful without describing the field of endeavour that one claims to be successful in. Further, what is success for one person in a particular set of circumstances will not necessarily constitute success for another person in a different set of circumstances.

17. In clause 188.224, the field of endeavour in which a visa applicant demonstrates that he or she has been successful is ‘business career’. The term ‘business’ is variously defined in the Macquarie Dictionary, including most relevantly as being ‘2. Economics the sale of goods and services for the purpose of making a profit’, ‘3. Commerce a person, partnership or corporation engaged in business; an established or going enterprise or concern; closing business’ and ‘4.  volume of trade; patronage’. The High Court has pointed out, albeit in different contexts, that the word ‘business’ is ‘notorious for taking its colour and its content from its surroundings’ (Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216 at 226, referring to FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 378-379), and that it is a ‘chameleon-like word’ (PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 at [14].

18. The term ‘career’ is variously defined in the Macquarie Dictionary as ‘1. general course of action or progress of a person through life, as in some profession, in some moral or intellectual action, etc’, ‘2. an occupation, profession, etc., followed as one’s lifework: a career in law’.  

19. There is then the term ‘overall’. The Macquarie Dictionary only defines ‘overall’ to mean ‘1.  from one extreme limit of a thing to another: the overall length of a bridge’, and ‘2. covering or including everything: an overall estimate’.

20. A decision maker applying the criteria in clause 188.224 must therefore assess an applicant’s entire career in business. All success and failures are to be considered and weighed in determining overall, whether a person has had a successful business career.

21. There are then the words ‘has’ and ‘had’ within the phrase. It is clear from the use of these words that a decision maker must focus overall on an applicant’s business career in the past. The test is not prospective. A decision-maker is not asked to assess whether an applicant will likely have a successful business career in Australia in the future.

22. It is then necessary to consider the context in which one finds clause 188.224. It is one of a number of criterion that must be satisfied in order for the grant of Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visa. A Business Skills visa is but one of a number of different classes or kinds of visa, including but not limited to bridging visas, temporary safe haven visas and protection visas. Self-evidently, a business skills visa may be granted on the basis of an applicant’s business skills or business innovation and investment attributes and not for, example, because an applicant is in need of protection as he or she is a refugee. Furthermore, item 188.224 is to be found amongst a number of other criteria that must be satisfied in order for the visa to be granted. Those other criteria include, but are not limited to, there being a need for a visa applicant to be resident in Australia to establish or conduct the proposed business activity, and for at least two of the four fiscal years immediately before the time of invitation to apply for the visa, the applicant having an ownership interest in one or more established main businesses that had an annual turnover of at least AUD500,000 in each of those years, and that the business and personal assets of the applicant and his or her spouse together that can be applied to the establishment or conduct of a business in Australia have a net value of at least AUD800,000. It may be observed that the last two of these criteria require an applicant to demonstrate that he or she is not impecunious, and has substantial funds invested at his or her disposal.

23. Given all of the matters above, the following can be gleaned from the text of clause 188.224. The provision is concerned with whether a visa applicant has overall had success in a business career. The words ‘successful’ and ‘business’ are chameleon-like words that take colour and content from their surroundings. As such, they escape exhaustive definition. Plainly though, in assessing a successful business career, a decision maker may have regard to a number of factors including the financial performance of a business in which a visa applicant is involved, whether that business is making a profit or loss, the nature of any accumulated losses and other financial metrics. The context in which clause 188.224 is found, suggests financial metrics such as profitability and accumulated profits (or losses) for which an applicant is responsible will be important matters in assessing whether an applicant has overall had a successful business career. In assessing and weighing these and other relevant factors, a decision maker must assess a visa applicant’s business career on an overall basis, weighing any successes and failures in order to arrive at a conclusion as to whether ‘overall’ the person has been successful. Self-evidently, a decision maker may exclude any part of a person’s career where the person has not been in business. Further, the decision maker is concerned only with what has occurred in the past. There is no room in item 188.224 for the decision maker to engage in any speculative exercise as to whether a person will or may have a successful business career in the future.

24. In my view then, a decision maker asked to apply clause 188.224, must make a decision within, and having regard to the parameters outlined above. Within those confines, however, a decision maker may undertake an evaluative exercise and make a discretionary judgment. Being an essentially administrative decision, the decision reached must be reached in a legally reasonable way, taking into account relevant considerations, and ignoring irrelevant considerations.

25. Having dealt with issues of construction of clause 188.224, it is relevant to note there exists a Departmental Procedural Instruction ‘GenGuideM - Business Visas - Visa application and related procedures – 3.10.5.3. External Factors and 3.10.5.4 Net losses’ (‘Procedural Instruction’). The complete Procedural Instruction is not before me, however an extract was included in the affidavit of Mr Jiang. That extract is as follows:

    3.10.5.3 External factors

    Officers should have regard to external economic factors that may affect the success of a business, for example:

    •the impact of external economic trends, for example, recession/inflation

    •a fall in property values

    •a drop in world commodity/raw material prices

    •changes in taxation/tariff regimes (or similar) adversely affecting the trading position of the business

    •whether any recent trading loss incurred by the business was the result of market forces (as described above), other external adverse economic factors or the legitimate movement of assets out of the business, as opposed to poor business acumen and/or poor management decisions by the applicant.

    3.10.5.4. Net losses

    The net value of profits and losses are recorded in the financial statements for the business. If losses are recorded, the applicant must provide details of any relevant factors leading to the loss/losses, in order for officers to assess whether the loss was incurred as the result of poor business acumen/management decisions by the applicant.

    An applicant would not fail the overall successful business career requirements if the loss/losses resulted from legitimate business decisions that result in the increased equity in the business or the potential to result in increased profitability, market share, business growth and/or competitive advantage. For example, the net value of the profits of the business may have been reduced because potential profits were offset against expenses which resulted from the acquisition of additional assets for business operations (for example, depreciation/finance expenses).

26. It is then necessary to turn to the decision of the delegate. The delegate concluded that the First Applicant had not satisfied clause 188.224. The delegate noted the name of the business, the business history and its changing ownership structure. The delegate noted that a Special Purpose Report had been prepared, and summarised the financial information that had been provided. The delegate noted that she requested further information from the First Applicant and indicated that she had considered that information once it had been received. The information provided by the First Applicant included an explanation from him on the accumulated losses of the business and the reasons for those losses. The delegate noted financial statements for the business had been provided for the years 2020 and 2021 and set out some of the information contained in those documents. The delegate then concluded as follows:

    On the basis of available information, I am unable to make a finding that you have overall had a successful business career:

    - The balance sheets of the Company submitted indicate that the Company had significant accumulated losses across fiscal years of 2016 to 2021.

    - Although the Company’s revenue was on an increasing trend since your taking over its management from 2018 to 2021, the gross profit ratio of the Company had fluctuated, in fact mainly dropped over the period (2018: 13.61%; 2019: 10.31%; 2020: 2.1% and 2021:3.61%). Typically, gross profit is a measure of how efficiently a company utilises labour, raw material and other supplies for manufacturing goods. You might have been successful in tackling the Company’s revenue but the raw material factor is something you had little control over.

    On the last factor which is labour costs, you described that one of the important “targets” inherited by you from your parents is to provide a stable job environment and also salary level to the local workers. With this high up on your priority list, there would appear to be little room for you to make any dramatic changes despite your determination to do so.

    - As there are still significant accumulated losses as at 31/12/2021, it is difficult to see how your management skills had delivered any obvious effects on improving the Company’s performance and even if there was, given the slim level of net profits, it would take a long time for the Company to return to a healthy state, at least not working on a negative equity basis.

    It is noted that the demand for cement in China had not been great in the past 5 years even before the pandemic hit to the general economy. Coupled with the infrastructure and real estate industry still hovering at low level, it is still early stage for any significant rebound let alone there is still excess supply in the market waiting to be absorbed.

    - Lastly, you have withdrawn from the management role in the Company during 2022. Any aspiration you might have on applying your management skills yielding a positive performance would no longer materialise.

    - No evidence has been made available of any other company in which you may have had ownership interest and/or management involvement for consideration to be given to your overall business success.

    While it is acknowledged that you believe the Company will be successful in the future, I am unable to put weight to your claim as discussed above. As such based on the information before me, I am unable to make a finding that you have overall had a successful business career.

    In assessing the performance of your business career against the criterion of clause 188.224, regard has been given to all of the information you have submitted. On the basis of the foregoing analysis and available information, I am not satisfied that you have established through the documents submitted that you have overall had a successful business career. As such, you do not meet clause 188.224.

1. The first submission by the Applicants is that the delegate focused on the metric of accumulated losses as at 31 December 2021 in a misconceived way. The First Applicant says that the business had accumulated losses prior to his assumption of full management responsibility in October 2017. Those losses, he says, were significant and not accrued on his watch. The fact that the accumulated losses were so extensive explains why the accumulated results remained negative even after the First Applicant took control of the business. It was submitted that to crudely look at the fact that the accumulated results were ‘still significant accumulated losses as at 31/12/2021’ ignores that they were still losses because they were starting from a very large negative base, and that by focussing on this metric in a misconceived way, the delegate misconstrued what a ‘successful business career’ means. It was also submitted that the delegate had not taken account of the fact that the position with respect to the accumulated losses had improved.

2. It is important to record that the delegate had the following information before her about accumulated losses in the business for the period that the First Applicant was in charge:

   (a)2017: RMB 21.22m loss

   (b)2018: RMB 21.45m loss

   (c)2019: RMB 21.19m loss

   (d)2020: RMB 21.12m loss

   (e)2021: RMB 20.8m loss

3. It can be seen from the above that the accumulated losses of the business had reduced since the time the First Applicant assumed management responsibility for the business. The following should be noted about this. First, improvement in respect of the accumulated losses in the business was not significant. In the context of accumulated losses of over RMB 20m, the improvement over five years that the First Applicant had management responsibility was in the order of the RMB420,000. The accumulated losses remained significant (RMB 20.8m in 2021). Secondly and more significantly, the delegate herself was well aware that the position with respect to accumulated losses had improved, and took this into account. Immediately after noting that the company ‘still’ had significant accumulated losses as at 31 December 2021, the delegate stated that ‘it is difficult to see how your management skills had delivered any obvious effects on improving the Company’s performance…’. Plainly, the delegate was aware accumulated losses had reduced, but was of the view the improvement was not significant or sufficient.

4. In my view, the delegate did not misconstrue what a successful business career meant when she stated that the business still had significant accumulated losses. The delegate’s focus was not only on the accumulated losses, but also, the nature or extent of any improvement to the position in respect of accumulated losses. The delegate was of the view the First Applicant’s management skills had not sufficiently improved the accumulated loss position of the business. That conclusion was open to the delegate. These were matters the delegate was able to take into account.

5. The Applicants next take issue with the statement of the delegate that ‘gross profit ratio of the company had fluctuated, in fact mainly dropped over the period’. The Applicants submit that fluctuating profits are ‘neither here nor there for businesses exposed to cyclical factors’, and that it is meaningless to point to the fluctuations to reach a conclusion that a person does not have a successful business career. The Applicants submitted that external factors were a matter that the delegate needed to take account of, having regard to the terms of the Procedural Instruction, which guides officers to have regard to external economic factors, and that this was not done. The Applicants submit that the delegate acknowledged the First Applicant had been successful in tackling the revenue problems within the business, and noted that raw material and labour was something he had little control over. Despite his inability to influence these matters, however, the First Applicant says they were held against him. The First Applicant says that of itself shows a misunderstanding of what is meant by ‘overall… successful business career’.

6. It must be remembered that this Ground of Review is ‘pleaded’ as a misconstruction by the delegate of clause 188.224. The submissions of the Applicants need to assessed against that background. The submissions of the Applicants, considered fairly and overall, do not deal with any misconstruction of item 188.224 by the delegate. Rather, the submissions take issue with things the Applicants say the delegate did or did not consider. Plainly, gross profit ratio is a significant financial metric that may be considered when assessing whether a visa applicant satisfies clause 188.224. Plainly, where an applicant assumes responsibility for a business, profit ratio is a relevant consideration to whether the business is successful, and whether the person with the responsibility for it has a successful business career. Taking such a matter into account is neither unreasonable, nor can it be said that it is the delegate taking account of an irrelevant consideration. It was clearly open to the delegate to take account of the gross profit ratio of the business. Further, the Applicants’ submissions in relation to the failure by the delegate to consider external factors do not advance things. The delegate mentioned the presence of external factors in her reasons and was therefore aware of them. Nothing required her to place any particular weight on such factors when reaching her conclusion. In short, nothing in the approach of the delegate discloses any misconstruction of clause 188.224, any misunderstanding of gross profit ratio, nor any misapplication of these facts to the question of whether the First Applicant has had overall a successful business career.

7. The Applicants next take aim at the manner in which the delegate dealt with labour costs within the business. The Applicants point out that the delegate acknowledged the explanation given by the First Applicant that he had inherited targets from his parents to provide a stable job environment and also particular salary levels to the local workers. The delegate then stated that ‘With this high up on your priority list, there would appear to be little room for you to make any dramatic changes despite your determination to do so’. The Applicants point out that the delegate made no finding that the decision to award local workers higher wages was a bad management decision. The First Applicant’s complaint is that just because he chose to run his business in a way that paid his workers generously does not make him an unsuccessful businessman. He says that success is not to be defined as measured only in dollars, and that the delegate erred in her reasoning when she construed the test otherwise. He says further, that just because wage levels are different does not somehow mean that one person is more or less successful than another.

8. Again, it is not clear how the submissions advanced by the Applicants go to the issue of any misconstruction by the delegate of clause 188.224. Plainly, labour costs and their impact on the profitability or otherwise of the business, are matters that the delegate could take into account in assessing whether clause 188.224 was satisfied. Nothing required the delegate to consider the extent to which low profits may have been explainable by higher wages paid to workers. The delegate was not required to give weight to one particular matter over another, or indeed any particular matter. The delegate is required to exercise an evaluative judgement within the parameters set by clause 188.224. In that context, it was clearly open to the delegate to place weight upon objective financial metrics over other matters, including any explanation given by the First Applicant about benefits given to local workers, in deciding whether the Applicant ‘overall [had] a successful business career’. In fact, it is unsurprising the delegate focussed on success in ‘dollar’ terms (as the Applicants put it) given the context in which clause 188.224 is found.

9. The final complaint by the Applicants is that while the test in clause 188.224 is phrased in the past tense, the delegate engaged in a forward-looking enquiry. The evidence of this is said to be the statement by the delegate that the First Applicant had ‘withdrawn from the management role in the Company during 2022’ and therefore ‘any aspiration you might have on applying your management skills… would no longer materialise’.

10. In my view the delegate did not engage in a ‘forward-looking enquiry’ as asserted by the Applicants. It is plain from all of the reasons set out, that the delegate assessed historic performance from 2018 to 2021 and focused her attention on those matters. The statement made by the delegate merely emphasises that the First Applicant’s management role has come to an end. The logical relevance of such a statement is that it may serve to reinforce the First Applicant’s poor performance in the business to date, which in turn serves to reinforce why the delegate was not persuaded that the First Applicant met the criteria set out in clause 188.224.

11. In my view there was no misconstruction by the delegate of clause 188.224. Nor was there any other error. For all of the reasons I have set out, Ground 1 of the Grounds of Review must be dismissed.

    Ground 2

12. The second Ground of Review in the Application is:

    2.The delegate denied the Applicants procedural fairness by relying on purported information about the First Applicant's business, being apparent 'gross profit margin' figures of the business. contrary to s 57 of the Act.

13. In respect of this ground, the Applicants submit that they never provided ‘gross profit ratio figures’ to the delegate. About this, they make the following submissions. First, the source of the gross profit figures remains unknown. Second, there is an intrinsic uncertainty of how a metric like gross profit ratio is to be calculated, and it may mean different things to different people. Third, it is plain that the delegate relied on the gross profit ratio figures in reaching her decision. The Applicants complain they were never given any notice of these figures. They submit that the failure to give them notice and an opportunity to respond constitutes a breach by the delegate of the obligations in section 57 of the Act.

14. I have given close consideration to these matters. The figures used by the delegate to calculate the gross profit ratio were figures provided by the First Applicant himself. Counsel for the Applicants acknowledged that there was no error with the arithmetic, or the gross profit ratio figures. While the Applicants asserted that there are different ways in which the metric might be calculated, they were unable to identify any error in the method of calculation, or explain how the gross profit ratio may, or should have been calculated differently in this case. In these circumstances, I do not accept that there has been any failure to afford the Applicants procedural fairness. They provided the figures to the delegate. They are unable to identify any error in the figures, or to identify an alternative way in which gross profit ratio should have been calculated in the circumstances of this case. That leads to the conclusion that the delegate utilised an unobjectionable method of assessing profitability. There was no contravention of section 57 of the Act, because the obligation contained within that section does not apply to information given by an Applicant for the purposes of his or her application: see section 57(1)(c). The subjective appraisals by the delegate of information supplied by the First Applicant is not something she was required to disclose prior to the decision being made: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9].

15. For the reasons given above, Ground 2 of the Grounds of Review is dismissed.

    CONCLUSION

16. For all of the above reasons, the Application must be dismissed.

17. The Applicants have been entirely unsuccessful. The Minister seeks costs of $8,371.30. In those circumstances, it is appropriate to make an order for costs in favour of the Minister in the amount claimed. 

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       28 May 2024