HUANG v Minister for Immigration
[2016] FCCA 3069
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUANG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3069 |
| Catchwords: MIGRATION – Business Skills (Residence) (Class DF) visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether the Tribunal misunderstood or misapplied the correct construction of the relevant criteria – whether the Tribunal erred by failing to consider all of the evidence – denial of procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.134(10), 359A, 360, 425 Migration Regulations 1994 (Cth), regs.1.03, 1.11 |
| Cases cited: Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90; [2015] FCAFC 3 |
| First Applicant: | LIFEN HUANG |
| Second Applicant: | CICHUN HUANG |
| Third Applicant: | CICONG HUANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 188 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Turner, Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The third applicant’s first name be changed to Cicong.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 188 of 2016
| LIFEN HUANG |
First Applicant
| CICHUN HUANG |
Second Applicant
| CICONG HUANG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants applied for a Business Skills (Residence) (Class DF) Subclass 892 visa on 18 March 2014. The first applicant’s visa application was based on her ownership of shares in New Gulf Trading Pty Ltd (“New Gulf Trading”) and her involvement in the management of its business. The company specialised in the wholesale of plastic packaging products in Australia.
The first applicant claimed that she was “fully in charge of the day to day management and operations of the company, including placing orders, price setting, marketing and sales planning, financial management and decision-making”. The other applicants are the first applicant’s children and applied for visas on the basis that they were dependent on her. It is convenient to refer to the first applicant as the applicant.
On 6 August 2014 a delegate of the Minister made a decision not to grant the applicants visas and they applied to the Migration Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Tribunal’s decision
The applicants all gave evidence at a hearing conducted by the Tribunal. There were two other witnesses: the applicant’s husband and Ms Ng, the daughter of another shareholder. Ms Ng gave evidence that her involvement in the company was limited to interpreting for the applicant.
The issue for the Tribunal was whether the applicant had an ownership interest in one or more main businesses in Australia in the 2 years immediately before the application was made, and continued to have an interest of that kind at the time of the Tribunal’s decision. The 2 year period prior to the application was from 18 March 2012 to 17 March 2014.
“Ownership interest” in relation to a business in this context includes the holding of shares in a company that carries on the business: s.134(10) of the Migration Act1958 (Cth). The Tribunal found that the applicant had such an interest in New Gulf Trading because she owned 102 of the 200 issued shares in that company.
The term “main business” is defined by reg.1.11 of the Migration Regulations 1994 (Cth) as follows:
1.11 Main Business
(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a)the applicant has, or has had, an ownership interest in the business; and
(b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
…
(d)the business is a qualifying business.
A “qualifying business” is an enterprise that is defined by reg.1.03 of the Regulations:
a)is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
b)is not operated primarily or substantially for the purpose of speculative or passive investment.
The Tribunal approached the question posed by these provisions by having regard to all the circumstances and requirements of the business operated by New Gulf Trading. In that context, the Tribunal then examined what the applicant and others actually did in respect of the business.
The Tribunal found that Ms Ng had a greater role in the company than claimed and that the applicant’s limited English ability impeded her ability to undertake the marketing role that she claimed to have. The Tribunal rejected the applicant’s claim to have full control of New Gulf Trading’s finances and found that she had signed documents without engaging with their content. The Tribunal noted that the fact that the applicant did not know the full name of New Gulf Trading’s only employee, and her evidence about the suppliers of goods from China, did not reflect a genuine involvement in the day to day management of the business. The Tribunal also found more generally that the applicant’s oral evidence about her decisions to do with the business did not reflect a genuine engagement in New Gulf Trading’s future.
The Tribunal accepted that the applicant had some involvement in relation to the business. The Tribunal found that it was limited to some contact with New Gulf Trading’s existing customers: discussing their packaging needs, the viability of their samples and resolving their complaints. The Tribunal was not satisfied that, at the time of the application and decision, the applicant maintained “direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business”. For that reason, the Tribunal found that the applicant did not satisfy the “main business” requirement in reg.1.11 of the Regulations. As such, the Tribunal found that the applicant did not satisfy the criteria for the grant of the visa and affirmed the delegate’s decision.
The applicant seeks judicial review of the Tribunal’s decision. She argues that it is affected by four errors:
i)the Tribunal failed to comply with its obligation under s.359A of the Act to give the applicants particulars of certain information;
ii)it misapplied the law to the facts as found;
iii)it failed to consider all of the evidence; and
iv)it denied the second and third applicants procedural fairness by requiring them to leave the hearing room while the applicant gave evidence.
For the reasons that follow, none of those errors has been established and the application will be dismissed.
Consideration
First ground: failure to comply with s.359A of the Act
Section 359A of the Act relevantly requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
The applicant argues that this obligation arose in respect of the following information:
a)That Ms Ng was involved in the running of the company; and
b)that the applicant’s husband gave “more expansive” evidence regarding the future direction of the business.
In respect of the first of these, the applicant relies on the following passage in the Tribunal’s reasons:
[34]Ms Ng claims her involvement has simply been as a translator although, as the delegate noted, her name appears on the Bills of Lading as the consignee (see the Bills for 18 March, 13 April, 14 May, 9 July and 13 August 2012). The delegate noted the contact mobile number provided for Ms Ng on those Bills is not that of the applicant. This suggests that Ms Ng has had more involvement in the 2 year period than merely as an interpreter. This issue was raised with the applicant at the hearing however she asserted that Ms Ng merely attends meetings with customers and acts as an interpreter. Her oral evidence in relation to the frequency of these arrangements was vague. At first she said the last time Ms Ng assisted her was about a month ago. She then said it was about 1½ to 2 months ago. In any case it does not appear to be a regular arrangement.
The evidence of Ms Ng was to the effect that she only acted as an interpreter in the business. That was not adverse to the applicant. What was adverse to the applicant was that the Bills of Lading included Ms Ng’s name and the contact telephone number on them was not the applicant’s number. There are two reasons why this did not give rise to any obligation under s.359A: first, it did not in and of itself reject, deny or undermine the applicant’s claim to have the relevant type and level of involvement in the business: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]; [2007] HCA 26 (“SZBYR”); Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at 513, [22]; [2009] HCA 31; SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90 at 100, [18], 108, [50]; [2015] FCAFC 3. Secondly, even if it did, the Bills of Lading which contained the relevant information, were given by the applicant during the process that led to the decision under review and so was excluded by operation of sub-s.359A(4)(ba) of the Act.
The evidence of the applicant’s husband did not give rise to any obligation under s.359A either. The statement that that evidence was “more expansive” was no more than an appraisal by the Tribunal of that evidence. It was not “information”: SZBYR at [18] citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549 at 476‑477; [2004] FCAFC 123.
For those reasons there was no contravention of s.359A of the Act and the first ground is rejected.
Second ground: misapplication of the law to the facts
Although this ground in the amended application contained a number of particulars, at the hearing the applicant relied only on the following finding made by the Tribunal at [50] of its reasons:
…
It is of the view her involvement in the business has been limited to some contact with the business’ existing customers, discussing their packaging needs, the viability of their samples and resolving their complaints.
…
The applicant argued that this activity formed significant inputs into management. In light of this, it was argued that the Tribunal’s conclusion, that the applicant did not have the requisite involvement in management, revealed that it acted on the basis that she was required to have complete involvement in the management of the business. However, that conclusion does not follow.
First, the Tribunal expressly acknowledged that there is no requirement for an applicant to have management of the whole company: [31]. Secondly, as it correctly stated at [30], there are two aspects to the requisite involvement in management: direct and continuous involvement in the management of the business from day to day, and direct and continuous involvement in making decisions that affect the overall direction and performance of the business. Contact with customers may well satisfy the first of these but may say little about the second. Thirdly, as the Tribunal recognised at [31], the question must be considered in the context of the whole of the business. The same tasks might bear a different character in the circumstances of different businesses. As the Minister submitted, this involves the application of judgment to a fact-laden inquiry.
In light of those considerations, the Tribunal’s findings about the extent of the applicant’s involvement in the business did not require it, on a proper understanding of the law, to conclude that the applicant had maintained the requisite involvement in management of the business. Thus, the Tribunal’s conclusion does not reveal any misapplication of the law and the second ground must be rejected.
Third ground: failure to consider all of the evidence
The applicant argues that the Tribunal failed to take into consideration the applicant’s evidence; that she was in the process of expanding the company’s operation by purchasing the business known as “Henry’s Packaging” and the documentary evidence concerning that purchase.
In a written statement given to the Tribunal, the applicant explained the expansion of the business in these terms:
…
I registered a new company, Henry’s Packaging and rented a warehouse in Riverstone, Sydney. It has taken many months to find suitable property, to locate the required machinery and wait for it to be made and transported to Australia. I ordered an air compressor from a German supplier, BOGE and a blow moulding machine from China. The machinery was custom made and it had to be installed by specialist installers. We are in the process of testing the machines and trailing [sic] the production process. I think that we will start full production by mid July 2015. I will hire local workers to produce PET plastic bottles and containers using high level, modern technology and market knowledge as my market advantage. I will sell these products to Australian customers, starting with our existing customer Chtaura.
I am proud of my business achievements in Australia and I am looking forward to the future. I believe that I can continue to develop New Gulf Trading and, in addition, that Henry’s Packaging will be a successful business as well.
…
The applicant also provided a number of documents to the Tribunal concerning Henry’s Packaging. Amongst these were:
· a change of address form for Henry’s Packaging Pty Ltd signed by the applicant as director on 21 May 2015
· a consent to an appointment as secretary, a consent to act as public officer and a consent to appointment as Director, all signed by the applicant on 8 September 2014;
· notice of registration for goods and services tax dated 1 October 2014;
· an extract from the records of and a letter from the Australian Business Register, showing ABN[2] registration effective from 8 September 2014;
· an invoice for the supply of air compressor machinery dated 10 April 2015;
· a quotation for the supply of electrical goods dated 27 January 2015;
· an order for the supply and installation of broadband internet dated 20 March 2015; and
· a lease for commercial premises for a period of three years commencing on 23 January 2015.
[2] Australian Business Number.
At the hearing the applicant gave evidence which could be interpreted as relating to the Henry’s Packaging business[3]:
[3] Transcript p.19.23.
…
So we are a trading company so we are still exploring the different markets. But since 2014 we have been looking into you know building a factory and also doing all kinds of – and bringing in machinery and establishing new ways of doing business.
…
The Tribunal made the following references to this evidence and material:
[20]… She has registered a new company, Henry’s Packaging and has rented a warehouse. She has ordered machinery and thinks production will start in July 2015. …
…
[23]The applicant provided documents in relation to the establishment of Henry’s Packaging Pty Ltd to which she was appointed as a director on 8 September 2014.
…
[45][The representative] referred to the new venture Harry’s [sic] Packaging. …
…
[50]… [the Tribunal] acknowledges that she has some awareness of the new factory venture and production plans. …
Those references make it clear that the Tribunal was not only aware of the material and evidence concerning the Henry’s Packaging business, but also that it took them into account. The applicant’s real complaints appear to be that the Tribunal did not consider this material in any detail and that it did not consider the possibility that the new business had required a good deal of forward planning. The latter submission was addressed to the difficulty that none of the new business activity had occurred prior to the visa application. It will be recalled that one of the questions for determination by the Tribunal concerned the 2 year period prior to the visa application.
The greater difficulty though, is that the applicant did not give any evidence about any planning activity that had taken place prior to the incorporation of Henry’s Packaging Pty Ltd or, more importantly, her involvement in it. The closest that the applicant came to doing so was at the hearing when she said: “But since 2014 we have been looking into you know building a factory …”[4].
[4] Transcript p.19.23.
For those reasons, the applicants have not established that the Tribunal failed to consider any evidence or material and the third ground is rejected.
Fourth ground: denial of procedural fairness
Shortly after the beginning of the hearing, the Tribunal explained the way it wished to proceed with the hearing. It addressed each of the applicants as follows:
… What I would like to do is to speak to you first with everybody else waiting outside. Information for your sons, they are actually review applicants themselves and I will discuss with you anything that is important to your case. The main proceedings today are to do with your mother’s circumstances in relation to the business. So I would like to speak with her to start with. Yes if you take a seat in the waiting room I will call you as you are required.[5]
[5] Transcript p.3.13.
Immediately after explaining this, the Tribunal asked:
Ms … are you happy with … on that basis?
The transcript shows that the response to this question was “yes”, although it does not reveal who gave that response. The applicants were represented at the hearing by an experienced migration agent. The response was either by her or by the applicant. However, as the applicant is referred to by name in the balance of the transcript, I infer that the response was from the migration agent. That inference is strengthened by the following statement made shortly afterwards, “May I just clarify that there are two people available by telephone.” It is more likely that a legally trained migration agent would say those words than the applicant speaking through an interpreter.
Following this passage, the second and third applicants appear to have left the hearing room and only returned after the applicant had given evidence.[6]
[6] Transcript p.31-32.
The applicants argue that by being excluded from the hearing room during the applicant’s evidence, the second and third applicants were denied procedural fairness. They say, in particular, that they were not aware of the issues that arose during their mother’s evidence. The Minister submitted that each of the applicants was afforded the opportunity required by s.360 of the Act and the exclusion of the second and third applicants was for the proper purpose of ensuring that their evidence would not be tainted by that of the applicant.
Neither party drew my attention to any authority on the point. However, the decision of the Full Court of the Federal Court in MZZMG v Minister for Immigration & Border Protection (2015) 234 FCR 180; [2015] FCAFC 134 (“MZZMG”) is authority for the proposition that the Tribunal has the power to exclude an applicant from a hearing subject to the Tribunal’s express and implied obligation to afford procedural fairness: see [47]. The Court found, at [49] that the Tribunal’s decision to conduct part of a hearing in the absence of the appellant was not legally unreasonable and otherwise found no denial of procedural fairness.
The applicant did not raise the issue of legal unreasonableness; however, it seems to me that the Tribunal’s decision to proceed in the way it did was one that was reasonably open to it. First, the applicants did not take issue with the proposal; secondly, the Tribunal explained that it adopted the procedure so that it could be confident that the evidence of the second and third applicants was not influenced by the applicant’s evidence.[7] As Gleeson CJ explained in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [21][8], the object of a review hearing pursuant to s.425 of the Act (an analogue to s.360) is to “hear evidence and receive arguments in the most useful and efficient manner” which will often “involve flexibility in the order of proceedings”. Ensuring the cogency and reliability of evidence thus provides a rational basis for excluding a review applicant from part of the hearing under s.360 of the Act.
[7] Transcript p.20.2.
[8] Referred to by the Full Court in MZZMG at [45].
The critical question then, is whether the procedure adopted resulted in a denial of procedural fairness.
The starting point is that, for the purposes of review by the Tribunal of a decision of a delegate, the obligation to afford procedural fairness in the context of a hearing is contained in s.360(1) of the Act. That section relevantly provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The opportunity provided by this section must be a real and meaningful one: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37]. However, the question of whether there has been compliance with that section, and thus, whether procedural fairness has been afforded, is not determined by the application of syllogistic reasoning: VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 at [27] (Allsop J as his Honour then was). The question is one of fairness with particular regard to the statutory formulation: see for example, SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
The first point here, as noted above, is that the applicants were represented by an experienced migration agent. The Tribunal sought, and obtained, her approval of the approach ultimately adopted by it. Secondly, there is no question that the second and third applicants were aware of, and given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision of the delegate.
The delegate accepted that the applicant and her husband held a total of 61% of the shares in New Gulf Trading Pty Ltd, but found that her involvement in the business of that company was not that required by the regulations. In light of that, the issue of the level and nature of the applicant’s involvement in that business was obvious from the delegate’s decision. The Tribunal made this pellucidly clear when the second and third applicants were asked to give evidence. The Tribunal explained to the second applicant that it was “particularly also interested in (his) mother’s involvement in the company New Golf [sic] Trading Pty Limited”[9] and to the third applicant that it was “also interested in (his) mother’s involvement in the business New Golf [sic] Trading Pty Limited.”[10]
[9] Transcript p.31.2.
[10] Transcript p.32.8.
Moreover, the Tribunal took the step of asking the second and third applicants to give evidence in Cantonese so that their mother could understand their evidence. Further still, the Tribunal asked the applicant whether there was anything that she wished her sons to say in evidence.
In those circumstances, there was no denial of procedural fairness by reason of the fact that the second and third applicants were not in the hearing room at the time the applicant gave evidence, and the fourth ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 9 December 2016
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