Ibrahim v Minister for Immigration
[2007] FMCA 1234
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1234 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – Tribunal unable to determine ownership or value of assets of the business – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.134, 359A, 360 Migration Regulations 1994 (Cth) |
| First Applicant: | ROMEO ELIAS IBRAHIM |
| Second Applicant: | AMAL FARID EL BAZI |
| Third Applicant: | ELIE IBRAHIM |
| Fourth Applicant: | SABINA IBRAHIM |
| Fifth Applicant: | SEBASTIEN IBRAHIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3901 of 2006 |
| Judgment of: | Driver FM |
| Hearing dates: | 31 May and 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3901 of 2006
| ROMEO ELIAS IBRAHIM |
First Applicant
| AMAL FARID EL BAZI |
Second Applicant
| ELIE IBRAHIM |
Third Applicant
| SABINA IBRAHIM |
Fourth Applicant
| SEBASTIEN IBRAHIM |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 22 November 2006 and was handed down on 4 December 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants business visas.
Relevant background facts relating to the applicants’ visa applications and the Tribunal decision are set out in written submissions filed on behalf of the applicants and the Minister. I adopt as background for the purposes of this judgment with amendments, paragraphs 2 through to 9 of the applicants’ written submissions filed on 25 May 2007 and paragraph 2 of the Minister’s submissions filed on 25 May 2007.
The principal applicant was applying for a visa subclass 845[1].
[1] The first applicant was the principal applicant. References in this judgment to the applicant are to him.
The critical criterion that the applicant had to establish was visa condition 845.215, which was as follows:
The total value of the net assets owned by the applicant, or by the applicant and the applicant’s spouse together, in the main businesses in Australia:
(a) is; and
(b) has been throughout the period of 12 months preceding the making of the application; at least AUD100,000.
An “ownership interest” is defined in s.134 of the Migration Act 1958 (Cth) (“the Migration Act”) as:
An interest in the business as;
(a) a shareholder in a company that carries on the business; or…
(c) the sole proprietor of the business…
The Migration Procedures Advice Manual states that:
If an applicant has legal title to an asset, officers are entitled to be satisfied that the applicant has, that is, legally owns the claimed asset.[2]
[2] This statement is qualified by a statement that officers should satisfy themselves that, the assets were legally acquired, and not knowingly acquired from a third party who had illegally acquired them.
The material dates for the purpose of clause 845.212 were 7 October 2003[3] and the time of the Tribunal decision on 4 December 2006.
[3] 12 months before the visa application on 8 October 2004
In October, 2003, the applicant claimed to be the sole proprietor of REI Construction. He furnished evidence (see for instance, the Australian Business Register search results, at relevant documents (RD)119, Department of Fair Trading certificate, at RD206, and tax return behind RD207).
On 13 September 2004, REI Construction became an incorporated, limited liability company (RD121). The sole shareholder in the company was the applicant (RD122).
The net asset position of the business as at October 2003 is outlined by the applicant’s accountant at (RD178). The statement of assets at RD184 indicates net assets in the business in the order of multiples greater than that required for the purpose of clause 845.212(b).
The Tribunal was required to determine whether it was satisfied that the applicant met the criteria for the grant of the visa for which he applied. One of those criteria was found in clause 845.215 of the Migration Regulations 1994 (Cth) (“the Migration Regulations). The Tribunal proceeded on the basis that this regulation “required an assessment of the value of the net assets owned by the applicant, or his spouse, in the business and the period during which those assets were held.” (RD 409.2).
The Tribunal, like the delegate, was unable to be satisfied that
Mr Ibrahim or his company (or his spouse) owned at least $100,000 in the business, because it was unable to establish the truth about the advance of funds to establish the business and the liabilities that may remain from those transactions. The applicant and his witnesses were not believed.
The judicial review application
These proceedings began with a show cause application filed on 28 December 2006. That application asserts actual notification of the Tribunal decision on 4 December 2006. I find that the application was filed within time. The application has been amended several times since then. The applicants now rely upon a further amended application filed on 17 July 2007. The grounds of that application are:
1.The Tribunal asked the wrong question, and/or erred in law, that error going to jurisdiction, in failing to apply the statutory criteria for the grant of the visa applied for, in asking whether it could be satisfied that Mr Ibrahim was the beneficial (as well as legal) owner of certain assets owned by REI Construction P/L (“the Company”), rather than whether or not Mr Ibrahim had a legal ownership interest in the Company, being his sole shareholding in the Company (section 134 of the Migration Act 1958 (Cth), Migration Regulations 845.215).
2.The Tribunal failed to comply with its obligation under section 425, which required it to give the Applicant an opportunity “to give evidence and present arguments arising in relation to the decision under review”, because the Tribunal failed to warn the Applicant that it proposed to find that it could not or would not rely on the accounts provided by the Applicant as representing the net asset position of the Company
2.1.This was not an issue arising “out of the review”, because it was not an approach relied upon by the delegate.
The evidence
I received as evidence the court book (relevant documents) filed on 2 March 2007. I also received the affidavit of Diane Kanaan filed on 11 July 2007. Annexed to that affidavit is a transcript of the hearing conducted by the Tribunal on 12 September 2006.
Submissions
Both parties took the opportunity to make written and oral submissions. Relevantly, the applicants submit as follows:
As the legal owner of the business at all times was the Applicant (who thus had legal ownership of the assets of the business), any assets owned by the business were owned by the Applicant.
The question that the Tribunal should have asked was in three parts;
First, what percentage ownership interest of the business at the two material times did the Applicant have (legal ownership, in the absence of clear evidence to the contrary, being sufficient)?
Second, what was the net asset position of the business at the material times?
Third, did the percentage ownership interest of the business at each material time lead to a net ownership interest in the business at the material times in excess of $100,000?
Instead, the Tribunal distracted itself with its concerns about the veracity of the explanations of the source of initial funds for the business (RD399 and following), which formed the bulk of the Tribunal’s reasoning, before concluding that it was not possible to tell who owned the assets of the business, nor what the assets were.
In doing so, the Tribunal has asked the wrong question, thus erring as to its jurisdiction. The decision should be quashed and the matter remitted to the Tribunal for further consideration in accordance with law.
In oral submissions, counsel for the applicants submitted that it is apparent from the decision of the High Court in SZBEL v Minister for Immigration (2006) 231 ALR 592, in particular at [3], [13], [19], [34]-[35], [37] and [38] that a high level of particularity in identifying the issues on the review is required in order for the Tribunal to discharge its obligation under s.360 of the Migration Act of providing a real hearing opportunity. The applicants submit that the veracity of the accounts submitted was not clearly put in issue. The applicants’ position is that the accounts were never really squarely raised either at the Tribunal hearing or in a letter subsequently sent to the applicants pursuant to s.359A of the Migration Act[4].
[4] RD 369
The Minister relevantly submits as follows:
The Tribunal undertook this assessment by having regard to the evidence given by, and for, the applicant. Some of this evidence went to the source of the funds with which the applicant said that he started the business. This was not a distraction, as suggested by the applicant, rather, it went to the heart of the issue. It is not the origin of the funds itself that was important to the question of the value of assets, it was what was given in return for those funds. Here, there was a possibility that the applicant had borrowed funds. This would have meant that the amount of the loan would be a liability rather than an asset and would lessen the value of the assets. The applicant, and others, sought to convince the Tribunal that the funds had no effect on the value of the business because they were, ultimately, a gift from the applicant’s father. The Tribunal found, for adequate reasons, that this was a lie and, as a consequence, it did not accept anything said about the funds.
Thus the Tribunal was left with a set of unaudited accounts that may, or may not, show the true asset position of the business or the applicant’s level of ownership of those assets. It was for this reason that the Tribunal was not able to be satisfied that the criterion was met and so was obliged to affirm the decision of the delegate.
The applicant’s arguments amount to factual assertions: see for example paragraph 10 of his submissions. Reliance on the Migration Series Instruction does not assist him both because the only legal title held by the applicant was a $1 share, not the assets of the business and, as already noted, the Tribunal could not determine on the evidence what the value of those assets was at any time.
The financial statements of the company were given by the applicant to the Department in support of his claim for a visa: [RD]51 and 177. The delegate found, in spite of these, that insufficient evidence had been provided to support the applicant’s claimed ownership or existence of the claimed assets: [RD]295.8. The applicant received the delegate’s statement of reasons for decision and applied to the Tribunal for review of the decision. In light of this, the applicant was on notice that the accounts provided by him in support of the application may not be accepted at face value. In other words, it was obvious that the Tribunal could find that the applicant did not own the assets disclosed in the company’s balance sheet and there was not obligation on the Tribunal to bring that to his attention.
Reasoning
The question that the Tribunal had to determine, pursuant to clause 845.215 of the Migration Regulations was whether the total value of the net assets owned by the applicant is and had been throughout the period of 12 months immediately preceding the making of the application at least A$100,000. The visa application was made on
8 October 2004 so the relevant period was the 12 months commencing on 7 October 2003. The principal applicant had, for part of this period, been operating as a sole trader but a company was registered[5] on
13 September 2004. Both the delegate and the Tribunal therefore had to consider the operations of the applicant as a sole trader and the operations of the company.
[5] REI Constructions Pty Ltd
The applicant had submitted his accounts as a sole trader for the financial year ended 30 June 2004[6]. This included a balance sheet[7]. It is apparent that the balance sheet was based on information from the applicant and that the accounts were unaudited[8]. The Minister’s Department sought further information from the applicant, in particular evidence from where he obtained the funds for his business from[9]. That further information was provided to the Minister’s Department in the form of a letter from an accountant dated 3 January 2005[10]. Relevantly, the sources of funds for the business were said to include funds provided by friends and relatives. Statutory declarations were attaching relating to the provision of two amounts of $42,500 and $130,000.
[6] RD 51
[7] RD 62
[8] RD 69
[9] RD 174-176
[10] RD 177-181
The delegate referred to that information[11] but it was found to be unsatisfactory. The delegate noted[12] that aside from the statements, there was no “third party verifiable evidence to support and corroborate” the claim of the loans referred to having existed, then repaid or of the lawful transfer of funds from offshore. The delegate concluded:[13]
In summary, and in accordance with policy guidelines, I find that insufficient evidence has been provided to support the applicants claimed ownership or existence of the claimed assets. I can not be satisfied that the applicant has legal title to the assets, nor that any such assets were legally acquired. As such I am unable to determine that Mr Ibrahim meets the AUD $ 100,000.00 net business asset requirement.
[11] RD 294
[12] RD 295
[13] RD 295
The delegate had before her both the accounts of Mr Ibrahim as a sole trader and the unaudited accounts of the company for the following year. It was apparent from her decision that she was unwilling to accept those accounts at face value. The delegate was not satisfied, either from the accounts or from the additional information provided, that the principal applicant met the key criterion for the grant of a visa.
The position before the Tribunal was essentially the same. The Tribunal referred to the applicants’ claims and evidence and the decision of the delegate. The Tribunal reviewed the information provided at the Tribunal hearing, which is verified by the transcript. The Tribunal also referred to the invitation to comment sent after the hearing pursuant to s.359A and the response received. The Tribunal found:[14]
Having considered all of the available evidence, the Tribunal finds that it is not satisfied that the applicant or his spouse owned at least AUD$100 000 in assets in the claimed main business.
[14] RD 409
The conclusion is repeated at RD 410. The Tribunal concluded:
On the available evidence, the Tribunal is simply not satisfied as to the claimed ownership of the applicant of the business assets, nor the claimed levels of those assets, such that he could be found to meet the criteria prescribed at clause 845.215.
The applicants assert that the Tribunal was distracted from its proper task by considering what the source of the funds was for the establishment of the business and confused the personal assets of Mr Ibrahim with the assets of the business. This is, however, not borne out by an analysis of the Tribunal reasons. By the time the matter got to the Tribunal, the applicants had ceased to rely on the declarations provided to the Minister’s Department that had sought to explain the source of the funds for the establishment of the business. Those declarations were now said to be false. Various other explanations were proffered but the Tribunal had no confidence in any of them. The Tribunal said[15]:
In the Tribunal’s view, the state of the evidence is such that the assertions of the applicant and those giving evidence on his behalf cannot be relied upon. In the Tribunal’s view, their actions in providing obviously deceitful material to the Department simply to support the application demonstrates a disregard for the truth and a willingness to make ny assertion which would assist the application. There has been an attempt to blame the former adviser of the applicant for these issues, however, in the Tribunal’s view the applicant and those making declarations on his behalf equally set out to deceive the Department.
[15] RD 409
The Tribunal went on to consider the additional information that had been given to it but expressed no greater confidence in that information than in the information which had earlier been given to the Department and then abandoned. The Tribunal then said:[16]
In the Tribunal’s view, the evidence of the business relationships of the applicant is such that it is not possible with any reliability on the basis of the available evidence to discern who, in fact, owns the assets of the business, nor indeed what those assets were at particular points in time. In the Tribunal’s view, the evidence is now such that it is not possible to determine whether the applicant’s owns [sic] any of the assets of the business, whether his father or others own any assets of the business or whether there were loans made to the applicant to establish the business which are now being claimed as monies owed to his father. The evidence of the applicant and his witnesses, including documentation obtained from Lebanon, is of no assistance because the history of the matter demonstrates that the applicant and those supporting him are prepared to make any statement to assist the application and obtain documentation to support the claims made.
[16] RD 410
It is clear enough from the foregoing statements that the Tribunal placed no credence on any of the information provided by or on behalf of the applicants. This included a rejection of the unaudited accounts of the applicant as a sole trader and the unaudited accounts of his company. Those accounts had been prepared from information provided by Mr Ibrahim and that information was found by the Tribunal to be wholly unreliable. The Tribunal was not satisfied that, as a sole trader, Mr Ibrahim owned the assets of the business and it was not satisfied what the net value of those assets might be. Likewise, the Tribunal could not be satisfied what, if any, assets the company had in fact acquired from Mr Ibrahim on its establishment and what the net value of those assets might be. This was the question the Tribunal needed to address in order to determine whether Mr Ibrahim met the criterion in the Regulations. The Tribunal did not ask itself the wrong question. I reject the first ground of review.
It should have been obvious to the applicants from the delegate’s decision what the issue on the review was. The issue was whether any credence could be placed upon the unaudited accounts that had been provided in the light of the information provided to the Department which had found to be false and the further information provided to the Tribunal. If the applicants had been in any doubt, that doubt should have been removed when the problem was stated by the presiding member at the hearing[17]. In addition, the Tribunal’s letter dated 13 September 2006 further clarified the problem in the light of the evidence given to the Tribunal at the hearing. It was already plain from the decision of the delegate that the unaudited accounts of Mr Ibrahim and his company were not acceptable. The additional information given to the Department to support those accounts had since been abandoned. The Tribunal clearly outlined the problems it had with the additional information given to it.
[17] see for example the observations of the presiding member at pages 5, 9, 12, 13 and 14 of the transcript
I conclude that the hearing opportunity afforded to the applicants was a fair one which met the Tribunal’s obligations under s.359 of the Migration Act. I reject the second ground of review.
I find that the applicants have failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
As to costs, costs should follow the event. I see no reason to depart from the Court scale in this case. Although the matter has been before the Court on three separate days, the parties have not been unduly taxed in their preparation of written submissions and, overall, the amount of work undertaken was no greater than average. This calls for scale costs in the sum of $5,000.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 August 2007
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