Inoue, Masaru v Immigration and Multicultural Affairs

[1998] FCA 343

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG200  of   1995

BETWEEN:

MASARU INOUE
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENT

IMMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

27 MARCH 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondents’ costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG200 of 1995

BETWEEN:

MASARU INOUE
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENT

IMMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	FINN J
DATE:	27 MARCH 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

In 1988 the applicant, Mr Masaru Inoue, a Japanese citizen came to Australia as a working holiday maker.  He has thereafter been entitled to remain in the country under a series of temporary permits.

In March 1992 a company was registered in Queensland of which he was a director and is now the managing director.  That company commenced business in Cairns providing guide, tour and sightseeing services and special purpose tours for Japanese visitors to the country.  By early 1995 it had five full-time and two casual staff.  Its company turnover for the years 1993, 1994 and 1995 respectively were $91,153, $136,476 and $222,352.  Its tour activities were confined to the environs of Cairns.

On 16 September 1994 Mr Inoue applied for a Class 413 (executive overseas) visa to enable him to remain in Australia. His lack of success in that application has led ultimately to his application to this court under s 476 of the Migration Act 1958 (Cth).

Insofar as relevant to this applicant clause 413 of Schedule 2 of the Migration Regulations 1993 required (inter alia) the following of a visa applicant.

“413.321(1)The applicant meets the requirements of any one of sub-clauses (2), (3) and (4).

...

(3)       An applicant meets the requirements of this sub-clause if:

(a)the applicant has been appointed by a company operating in Australia to be the national managing executive or a deputy national managing executive or a state manager;  and

(b)       the company is operating as a business;  and

(c)in the case of an applicant who intends to stay in Australia for more than 4 months, the applicant is sponsored by the company.

(4)An applicant meets the requirements of this sub-clause if the applicant is a senior executive of a company operating in Australia (not being the national managing executive or a deputy national managing executive or a state manager), and the applicant establishes:

(a)that the position to which the application relates carries substantial executive responsibility;  and

(b)that the applicant’s qualifications for the position are appropriate;  and

(c)       that the position is a full-time position;  and

(d)that the position is to be adequately paid, having regard to Australian levels of remuneration and conditions;  and

(e)       that the company is operating as a business;  and

(f)if the applicant intends to stay in Australia for more than 4 months, that the applicant is sponsored by the company;  and

(g)if the Minister so requires, that the labour market requirements have been met.”

The Immigration Review Tribunal’s Decision

The Tribunal found that Mr Inoue failed to satisfy the requirements of either clause 413.321(3) or (4).  Of sub-clause (3) it opined (inter alia):

“The wording of sub-clause 413.321(3)(a) refers to there being a national company that is operating or has a presence throughout Australia or at least a substantial part of it.  That is to say a company which has no presence outside a localised area would appear not to satisfy the requirements of that regulation.”

In its treatment of sub-clause (4) I need only note the following views of the Tribunal:

“From the evidence and material before the Tribunal it is doubtful whether the position in the business to which the Visa Applicant has been nominated or sponsored ‘carries substantial executive responsibility’.

Again it appears to the Tribunal that the type of company and business referred to in clause 413.321(4) be a substantial one as opposed to a localised company or business with few if any employees.”

The Present Application

The issues before both the Tribunal and this court were whether Mr Inoue’s company and his position within it were encompassed by sub-clauses (3) or (4) on their proper construction.  In my view they clearly were not.

I mean no disrespect to counsel for the applicant in saying that the case is a clear one.  Insofar as sub-clause (3)(a) is concerned the only possible basis upon which Mr Inoue could invoke its aid would be if he had been appointed to the position of a “State manager” of a “company operating in Australia”.

It is unnecessary for me to decide whether the sub-clause necessarily envisages a company having national operations in the sense of conducting business in more than one State and with a national headquarters (as the second respondent has submitted and as the Tribunal appears to have held) or whether it could encompass as well a company conducting its business in one State only.  In either case, the clause clearly contemplates a corporation of such size and having such geographic dispersal of its operations as would justify an executive structure in which are to be found officers (or an officer) having the strategic executive functions signified by the designations “the national managing executive or a deputy national managing executive or a state manager”.  I should add that, even if the sub-clause could extend to companies with operations only in one State, the designation “a State manager” would not be satisfied by the mere proof that a person was the chief executive officer (as was Mr Inoue) of such a company, irrespective of its size and of the location of its operations.

The Tribunal was clearly correct in finding that Mr Inoue’s company, with its relatively small and localised business, was not one envisaged by the sub-clause and that he in consequence could not satisfy the requirements of clause 413.321(3) of the Regulations.

Insofar as sub-clause (4) is concerned, the Tribunal was correct in construing it as excluding “a localised company or business with few if any employees”.  The juxtaposition of sub-clauses (3) and (4) and the express exclusion from sub-clause (4) of the positions (referred to in parenthesis) designated in sub-clause (3), would seem properly to suggest that the type of company envisaged by sub-clause (4) would be similar to that of sub-clause (3) but that the executive position contemplated by sub-clause (4), as distinct from sub-clause (3), would be of a lesser, but nonetheless substantial, significance in the company’s executive structure.  The additional requirements that sub-clause (4) imposes seems to confirm this hierarchical view of the respective positions referred to in the two sub-clauses.  Mr Inoue’s company and his position within it were not of the types so envisaged by the sub-clause and the Tribunal was not in error in finding that Mr Inoue did not satisfy the sub-clause.

Given this conclusion, it is unnecessary to consider further the views the Tribunal expressed on the level of remuneration of Mr Inoue’s position (not set out in these reasons) relative to the requirements of sub-clause (4).

The final comment I would make about the sub-clauses and Mr Inoue’s application is that I concur in the Tribunal’s observation that this legislation was not intended to be put to the use Mr Inoue has sought to make of it through the use of a company of his own creation.
I would dismiss the application with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:
Dated:             26 March 1998

Counsel for the Applicant:  T Molomby
Solicitor for the Applicant:  Messrs Astley Associates
Counsel for the Respondent:                J Logan
Solicitor for the Respondent:                Australian Government Solicitor
Date of Hearing:  25 March 1998
Date of Judgment:  27 March 1998