Horsley v Minister for Immigration

[2016] FCCA 259

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORSLEY & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 259

Catchwords:
MIGRATION – Application for business skills visa – whether tribunal decision affected by jurisdictional error – no error.

Legislation:

Migration Act 1958 (Cth)

First Applicant: IAN PETER HORSLEY

Second Applicant: JENNIFER LYNN BOND

Third Applicant: CAITLYN SARAH HORSLEY

Fourth Applicant: MATTHEW CURTIS BOND

Fifth Applicant: ETHAN JOHN HORSLEY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 697 of 2015

Judgment of: Judge Vasta

Hearing date: 20 January 2016

Date of Last Submission: 20 January 2016

Delivered at: Brisbane

Delivered on: 20 January 2016

REPRESENTATION

Solicitors for the Applicants: VAN ZYL LAWYERS

Counsel for the Respondents: Ms Wheatley

Solicitors for the Respondents: SPARKE HELMORE

ORDERS

1. That the Application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 697 of 2015

IAN PETER HORSLEY

First Applicant

JENNIFER LYNN BOND

Second Applicant

CAITLYN SARAH HORSLEY

Third Applicant

MATTHEW CURTIS BOND

Fourth Applicant

ETHAN JOHN HORSLEY

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is an application for review of a decision of the Administrative Appeals Tribunal that affirmed the decision of the Minister to not grant a business skills visa to the Applicant. 

2. The history in short form is that the applicant, who is a citizen of South Africa, had applied for a business skills visa on 21 March 2014.  He had, in 2010, purchased an option to buy 50 per cent of the shares of a company called Allenbee.  Such option was predicated upon the purchase by Allenbee of a logistics business.  If the business was not purchased by Allenbee, then the money for the option would be refunded.  That option was for $450,000.00.  The option was to purchase 50 per cent of the shares for the sum of one dollar.  As well as that, the Applicant made a personal loan of $50,000.00 to the company.  That loan is reflected in a number of the records of the company.

3. Upon the application having been made (on 21 March 2014), it became incumbent upon the Applicant to show that at that date, that is, 21 March 2014,  he had, for the previous two years, been in an ownership position of at least 30 per cent of the company (because that company had a particular turnover). 

4. So, the matter that was of great significance was whether the ownership had commenced at a time before 21 March 2014.

5. What the Applicant claimed to the delegate of the Minister was that on 1 July 2011, which would seem to be some 10 to 12 months after the purchasing of the option, he exercised that option.  If this were so then that would mean that, from 1 July 2011, he had 50 per cent of the shares.  It seems that he claims that because of his financial position he was advised that it would be best for him to create a family trust.  The Horsley Family Trust was incorporated in August of 2013.  It was then that the shares were transferred to that company. 

6. When the matter came before the delegate, there was reliance upon a share certificate.  The share certificate, that was registered with ASIC, certified that on 1 July 2011, the other owner of Allenby, a Mr Davidson, transferred the 50 per cent of the shares, or shares numbered 51 to 100, to the Horsley Family Trust company. 

7. Now, when that was given to the delegate, the delegate realised that the share certificate could not be correct because the Horsley Family Trust did not exist before August 2013.  Therefore there was no proof, to the satisfaction of the delegate, that the Applicant had been in an ownership position prior to 21 March 2012. The delegate made his decision on 24 October 2014.

8. Upon receipt of the delegate’s decision, an application to review was made to the then Migration Review Tribunal.  As well as that, there were a number of matters attended to.  There was an application made to ASIC to amend the registration of those shares to reflect that the transfer was from Mr Davidson to the Applicant in July 2011, and subsequently from the Applicant to the Horsley Family Trust incorporated entity from 2 August 2013.  That was based upon minutes signed by Mr Davidson, who was the sole director of the company, dated 2 August 2013 that allowed for the transfer of the shares from the Applicant to his family trust.

9. It is significant to then look at what the evidence was before the Tribunal.  At that time, the Applicant was asked a number of questions about the share certificates that were before him, numbered 4 and 5, which reflected the position upon which the Applicant relied.  The applicant was asked when those share certificates were prepared, and the accountant and the Applicant both said that they were prepared after the decision of the delegate, which means that it was sometime after 24 October 2014 that these share certificates were prepared. 

10. The Tribunal asked about the minutes of the directors’ meeting, which talks about the transfer of shares on 2 August.  The Tribunal asked whether that document was prepared in late 2014.  The accountant said:

    “I had to re-prepare the minutes and also the share certificates based on the error that was completed by my business.  What date did I have on those minutes, Member?”

    The Tribunal answered:

    “2 August 2013.”

    And the accountant said:

    “They were from backdated minutes to reflect the error that was made by my accounting business.”

    The member asked:

    “Was there ever a meeting held on 2 August 2013 or was that something purportedly done retrospectively in late 2014?”

    And the Applicant answered:

    “Yeah, that would’ve been done retrospectively to fill the requirements to get the application.”

11. The Tribunal ended up finding that there was no evidence that the Applicant did have the required ownership prior to 21 March 2012.  Further, the Tribunal found that the minutes upon which such a claim was made by the Applicant was a false and misleading document or, to use the jargon in the legislation, a “bogus document”.  The Tribunal also found that there were no grounds upon which to exercise a discretion to allow the visa for compassionate or compelling reasons.  That decision was delivered on 2 July 2015.  An application was then made to this Court.

12. Whilst there are many grounds of this application, and I will go through those, basically it boils down to a submission by the Applicant that the finding that was made by the Tribunal is a finding that could never have been made upon the evidence before the Tribunal. 

13. It was argued by the Applicant that this was a simple error by the accountant.  The problem with that submission is that this is not a simple error at all.  There was no documentation to back up the exercising of the option.  There is no document to show the exchange of the one dollar, if that were needed, and, more importantly, there was no notification or registration of the fact that the shares had changed hands, even by minutes, in July 2011. 

14. The accountant gave evidence before the Tribunal and testified as to a mea culpa.  However, it would seem that the Tribunal did not accept this.  The Tribunal, looking at the share certificate that was issued by ASIC and given to the delegate, the new shareholdings, the minutes purportedly dated on 2 August 2013 and all the surrounding circumstances, was of the view that there had been no exercise of the option before 2013.  And further, that the option was exercised so that the 50 per cent share, or shares 51 to 100, were transferred from Mr Davidson to the incorporated family trust.

15. The question is whether, in light of the mea culpa by the accountant, that finding was a finding that was open.  There were, as I said in argument, two inferences that could have been drawn.  Either the accountant was guilty of gross malpractice in that the most basic need to register a transfer of shares was not done, or that this whole exercise was done in a dishonest way so as to try and reflect a view of the facts that would lend to a favourable consideration of an application for the grant of the visa. 

16. As I say, both those inferences were open.  The fact that the Tribunal drew the inference that this was dishonesty on the part of the Applicant and others to put forward to the Tribunal a view of the facts that fitted a positive application of the Applicant for the grant of a business visa, as opposed to the gross malpractice of the accountant, cannot constitute a jurisdictional error.  It is not whether I would have drawn that inference or anyone else would have drawn that inference.  It is not whether that was a reasonable inference to draw or an unreasonable inference to draw.  It is simply whether that inference was, in fact, open.  Because it was open, there can be no jurisdictional error in that regard. 

17. When one then goes to the grounds of this application, the Applicant says that the Administrative Appeals Tribunal erred in applying a public interest criteria in circumstances where:

    “1.The Administrative Appeals Tribunal (Tribunal) erred in applying the Public Interest Criteria in circumstances where:

    (i) The Department in considering a share certificate held by IH Investments (Qld) Pty Ltd, as trustee of the Horsley Family Trust in respect of Allanbee (101 Investments) Pty Ltd found that that prior to 7 August 2013 IH Investments (Qld) Pty Ltd did not exist.

    (ii) At the time of the hearing before the Tribunal the ASIC records were rectified and the Tribunal made a judicial error by not considering and accepting the evidence by the accountant Mr. Christopher Charles Graham that an innocent mistake was made in his office regarding the shareholding transfer in 2011 and 2013, the same explanation that was accepted by ASIC when ASIC amended their public records.

    (iii) The Tribunal erred in not applying procedural fairness in its consideration regarding the evidence of an innocent mistake made by the accountant which was due to an administrative error in his office.

    (iv) That Tribunal erred and made a Judicial error by not taking into account that the public record regarding the transfer of shares to the applicant has been accepted, corrected and registered (Corporations Act 2001 (No 50, 2001 Compilation 71 - in Part 1.5 Paragraph 6) in the name of the applicant for the period 1 July 2011 to 2 August 2013 and that in the such erred in its finding that the information regarding the Applicants shareholding from 1 July 2011 relating to cl.892.211 was false in a material particular.

    2. The Administrative Appeals Tribunal made a manifestly unreasonable decision in rejecting the evidence of First Applicant, the company accountant, the seller of the shares, the ASIC records of the share transfer and the evidence of payment of an amount of $500,000 in respect of 50% of the shares in; and a loan to Allanbee (101 Investments) Pty Ltd in July 2011 on the basis of being false in a material particular.

    3. AAT made an error in law by not drawing a distinction between a false representation by a visa applicant and the rectification of an administrative error, being an innocent mistake made by the visa applicant’s accountant.

    4. The AAT made a jurisdictional error and did not apply procedural fairness by not taking into account that a visa application should not be refused with reference to PIC 4020 and the directive in the Procedure Advise Manuel regarding PIC 4020 policy which reads as follows: “If applicants can explain an innocent mistake or error, as part of the procedural fairness process they may satisfy PIC 4020(1).”

    If, in the event it is found that PIC 4020 is to be applied to the facts and circumstances of this matter:

    5. The AAT made a jurisdictional error in its waiver consideration of PIC 4020 in that the AAT erred in its duty to consider the evidence regarding the effect of a waiver refusal will have on the company, its Australian director and 18 Australian employees and that the loss of the applicant to the business may cause the collapse of the business.

    6. The Tribunal made a Jurisdictional error by rejecting the evidence of the director, Mr. Nichols on irrelevant grounds being the that his appointment as director took place after the visa refusal and he should have foreseen the possibility of a visa refusal on review.

    7. The Tribunal made a Jurisdictional error by not considering the evidence of Mr. Davidson, regarding the effect on the company, on the ground that he was “in any event complicit in the provision of “false information” in that he personally signed the Minutes and Share Certificates”.

    8. The Tribunal made a Jurisdictional error by not considering and /or dealing with the evidence by the employees Michael Brookhouse and Renee Atkinson who provided evidence regarding the effect of a waiver refusal on the employees of the company.”

Ground One

1. As I say, when one looks at those matters, such a finding that the Tribunal made was open and the fact that the documents have now been registered by ASIC is really quite irrelevant.  It was not the ASIC documents that the Tribunal looked at as being misleading. 

2. It is the backdating of the minutes to justify what has now been registered by ASIC because those minutes, in effect, try and say that the Applicant had these shares from 2011 to August 2013 when they were transferred to his family trust. 

3. The fact that those minutes were not contemporaneous but were backdated is a matter that the Tribunal must properly have regard to in making its decision.  The fact that it drew an inference that was not favourable to the applicant does not mean that there has been a jurisdictional error.  So I find there’s no merit in ground one.

Ground Two

1. As I say, the Tribunal did not find that all those matters were false.  The Tribunal found that there was in fact the purchase of an option back in 2010, but this did not mean that the Applicant had ownership of the company as was required.  What it showed is that, up until the shares were transferred to the family company, the Applicant solely possessed a chose-in-action which is different from the ownership aspect.  So, in my view, there is no substance in ground two.

Ground Three

1. This was a matter of fact, and it is not, as I say, for the AAT to be compelled to draw a particular inference.  It is open for the AAT to draw whatever inference it wants, so long as the evidence before it justifies the making of that inference.  As I’ve said earlier in these reasons, this evidence did make that inference open.  So, again, there’s no substance in ground three.

Ground Four

1. If Applicants can explain an innocent mistake or error as part of the procedural fairness process, they may satisfy PIC 4020 subsection (1).

2. Obviously, the Tribunal found that this was not an innocent mistake or error.  There was an aspect of deliberation, deception and fraud about it.  So there is no substance in ground 4.

3. The following grounds were made in the event that there was no jurisdictional error as far as the findings being open.  Even if the Tribunal found as it did, it could still waive that necessity for the two year ownership period if there were compelling and compassionate reasons.

Grounds Five, Six, Seven and Eight

1. The Applicant’s grounds 5, 6, 7 and 8 can all be dealt with by me together.

2. All of these matters were considered by the Tribunal.  When one reads the decision of the Tribunal from paragraphs 33 through to 49, it demonstrates that all of the matters complained about by the applicant were in fact looked at.  The bar is set at a very high level for the waiver matters, and one has to find not only compassionate or compelling circumstances, one must find that those compassionate or compelling circumstances are such to militate towards the waiver of the requirements under the Act and to grant a visa. 

3. In my view, these four grounds are really targeted towards the merits of the Tribunal’s decision and, as has been said a number times today and in many authorities, such is simply not permissible.  There is no evidence, when one reads all those paragraphs, to say that the Tribunal did not give full weight to all of the matters that were before the Tribunal.  Simply because a result of the consideration was not favourable to the Applicant does not mean that there has been any error in the discharge of the duties of the Tribunal.

4. Having gone through the judgment and having  had full argument before me done extremely well by Mr Van Zyl on behalf of the Applicant and Ms Wheatley for the Respondent, I am of the view that there has been no jurisdictional error shown in any of the reasoning or discharge of the duty of the Administrative Appeals Tribunal. 

5. I therefore dismiss the application with costs fixed in the sum of $6825.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 11 February 2016