Ko v Minister for Immigration
[2019] FCCA 2176
•12 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
2FEDERAL CIRCUIT COURT OF AUSTRALIA
| KO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2176 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – business skills residence visa – ownership interest – whether applicant required to have ownership interest in same main business nominated at time of application – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.54, 55, 65, 476 Migration Regulations 1994 (Cth), reg.1.11, Sch.2, cll.845.213, 892.211, 892.214, 892.221, 892.222 |
| Cases cited: Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 84 ALJR 251; (2010) 264 ALR 417; (2010) 114 ALD 1 Liang v Minister for Immigration & Citizenship & Anor [2009] FCA 189; (2009) 175 FCR 184; (2009) 107 ALD 88 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 Zhu & Ors v Minister for Immigration & Anor [2016] FCCA 1874 |
| First Applicant: Second Applicant: Third Applicant: Fourth Applicant: Fifth Applicant: | FONG YUN ANNA KO CHI YUNG ERIC YONG ZHI WEI SEAN YONG JONATHAN CHI HIUNG YONG CHI CHUEN BRENDAN YONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 122 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 February 2017 |
| Date of Last Submission: | 28 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 12 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicants: | Mr T Bagley |
| Solicitors for the Applicants: | Myvisa Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the First Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application, as amended on 2 September 2016, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 122 of 2016
| FONG YUN ANNA KO |
First Applicant
CHI YUNG ERIC YONG
Second Applicant
ZHI WEI SEAN YONG
Third Applicant
JONATHAN CHI HIUNG YONG
Fourth Applicant
CHI CHUEN BRENDAN YONG
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a judicial review application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”). The applicants seek to have the Court review a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) made on 11 March 2016. The AAT Decision is at Court Book (“CB”) 848-857. The AAT Decision was to affirm a decision of the delegate of the Minister for Immigration and Border Protection (“Delegate”, “Delegate’s Decision”, and “Minister” respectively) made on 21 January 2015 to refuse to grant the applicants a Business Skills (Residence) (Class DF) Subclass 892 visa (“Business Visa”): CB 849 at [1].
Relevant legislation
It is convenient at this point to set out the relevant legislative provisions.
To be eligible for the Business Visa, the first applicant was required to meet the criteria in cll.892.211 and 892.221 of Sch.2 to the Migration Regulations which provided as follows:
892.21 - Criteria to be satisfied at time of application
892.211
(1) The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
(2) For each business to which subclause (1) applies:
(a) an Australian Business Number has been obtained; and
(b) all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.
892.22 - Criteria to be satisfied at time of decision
892.221
The applicant:
(a) continues to satisfy the criteria in clauses 892.211 and 892.214; and
(b) if the applicant met the requirements of paragraph 892.212(b), continues to meet those requirements.
Regulation 1.11 of the Migration Regulations defines “main business” 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 the management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c) …
(d) the business is a qualifying business.
(2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.
Sections 54 and 55 of the Migration Act provides as follows:
54 Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
Background and AAT Decision
The background is as follows:
a)on 29 July 2014 the first applicant applied to the Department of Immigration and Border Protection (“Department”) for the Business Visa. The other applicants were included in the Business Visa Application as secondary applicants: CB 1-126 and 849 at [2];
b)the first applicant was the sole shareholder and director of a company, AFYK Pty Ltd (“AFYK”), which owned the business NZN Ice Cream Innaloo (“NZN”). The business commenced in May 2012 and the first applicant worked continually in the business from its commencement up until the time of the Business Visa application: CB 7-8, 32 and 851 at [17];
c)in the Business Visa application, the first applicant nominated NZN as the sole main business on the relevant form, Form 1217: CB 32 and 851 at [17];
d)on or about 24 November 2014 the first applicant acquired 150 shares in a migration agency business, Partner Australia Pty Ltd (“Partner Australia”), and became a director of that company: CB 608-610 and 851 at [17];
e)the first applicant ceased to be a shareholder and director of AFYK on 2 December 2014. The first applicant therefore ceased to have an ownership interest in the business of NZN as at that date, and, following some transitional assistance given to the new owners, has had no involvement with the business of NZN on and from 15 December 2014: CB 478-485 and 851 at [17];
f)on 21 January 2015 the Delegate’s Decision was to refuse to grant the first applicant the Business Visa. The Delegate also refused to grant Business Visas to the other applicants. The first applicant was notified of the Delegate’s Decision by letter dated 21 January 2015: CB 636-644 and 652-657;
g)the Delegate found that the first applicant did not continue to have an ownership interest in one or more actively operating main businesses in Australia and did not meet cl.892.221 of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”);
h)the Delegate noted that the first applicant no longer owned or managed the business nominated in the Form 1217, that is, NZN, and had acquired an ownership interest in a new business, that is Partner Australia, which had not been nominated in the Business Visa application, and, therefore, technically could not be considered for assessment: CB 656;
i)on 30 January 2015 the applicants applied to the former Migration Review Tribunal for review of the Delegate’s Decision. The first applicant, assisted by her registered migration agent, appeared before the AAT via video link on 18 December 2015 to give evidence and present arguments: CB 688-691 and 826-828; and
j)on 11 March 2016 the AAT Decision affirmed the Delegate’s Decision not to grant the applicants Business Visas: CB 848.
The principal issue before the AAT was whether, at the time of AAT Decision, the first applicant continued to satisfy the criteria in cl.892.211 of Sch.2 to the Migration Regulations in light of the fact that at the time of the AAT Decision:
a)the first applicant no longer had an ownership interest in the business of NZN which she originally nominated in respect of the Business Visa application: CB 849 at [6]; and
b)the first applicant had acquired an ownership interest in a different business, Partner Australia: CB 852 at [20].
The AAT regarded Yang & Ors v Minister for Immigration & Anor [2014] FCCA 1576; (2014) 289 FLR 192 (“Yang”) as the most relevant authority on the issue before the AAT: CB 854 at [34] and 855-856 at [38]-[44] per Judge Driver, and concluded that the main business nominated for the purpose of satisfying cl.892.211 of Sch.2 to the Migration Regulations must be the business used to satisfy cl.892.221 of Sch.2 to the Migration Regulations. As that was not the case, the AAT concluded that cl.892.221 of Sch.2 to the Migration Regulations was not satisfied and that the Delegate’s Decision must be affirmed: CB 856 at [44].
Amended Judicial Review Application
The applicants filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 2 September 2016.
The sole ground of the Amended Judicial Review Application is as follows:
1. The Administrative Appeals Tribunal erred in its construction of cll 892.221 and 892.222 of the Migration Regulations 1994 (Cth).
Particulars
(a) The First Applicant nominated one qualifying main business on her Form 1217.
(b) In response to a request for information from the Department, the First Applicant provided details of a second main business after her Form 1217 was submitted but before her Visa Application was determined.
(c) The limitation on a ‘main business’ in cl 1.11 (1) of the Migration Regulations does not operate by reference to whether the business was nominated on Form 1217.
(d) The limitation on a ‘main business’ in cl 1.11 (2) of the Migration Regulations restricts the number of main businesses that may be nominated to two main businesses.
(e) The First Applicant’s second business was therefore capable of satisfying cl 892.222 of the Migration Regulations.
(f) The Minister, and therefore the AAT, was required to consider the information provided by the First Applicant in respect of her second main business: ss 54 and 55 of the Migration Act 1958 (Cth).
It appears to be common ground that where the Amended Judicial Review Application refers, respectively, to cll.892.221 and 892.222 of Sch.2 to the Migration Regulations, that they should be read, respectively, as references to cll.892.211 and 892.221 of Sch.2 to the Migration Regulations.
Applicants’ submissions
The applicants’ submission were as follows:
a)the applicants seek to quash the AAT Decision, upholding the decision of a Delegate’s Decision to refuse the Business Visa under s.65 of the Migration Act. The visa claims of the other applicants all depend on the success of the first applicant’s claim;
b)the applicants’ sole ground of review is that the AAT Decision erred in its construction of reg.1.11(1) of the Migration Regulations, and cll.892.211 and 892.221 of Sch.2 to the Migration Regulations, which provide that the applicant must satisfy the requirement to hold a “main business” (which, in turn, must be a “qualifying business”). The headings to the Migration Regulations suggest that the requirement ought to be satisfied both at the time of the application and at the time the decision is made. The AAT Decision and Delegate’s Decision both accepted that the first applicant satisfied the requirement at the time of the application: CB 852 at [19]. The issue was whether the first applicant could “continue” to satisfy the requirement to hold a “main business” in circumstances where the first applicant informed the Minister of a second “main business” after making the application but before the application was determined;
c)the applicants’ case is that the limitation on a “main business” in reg.1.11(1) of the Migration Regulations does not operate by reference to whether the business was nominated on Form 1217, but instead imposes a restriction that only two “main businesses” may be nominated, and there must be continuity of ownership in respect of the two “main businesses”. The second “main business” nominated by the first applicant enabled her to meet the criteria in cl.892.221 of Sch.2 to the Migration Regulations. As at the time of decision, the first applicant continued to satisfy the requirement that she “has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made”. The first applicant satisfied the criteria by owning and managing NZN from May 2012 to 15 December 2015 and Partner Australia from 24 November 2015 to date. If this submission is accepted, then the secondary claims should also be accepted (although this was not addressed by the AAT: see CB 856 at [45]);
d)contrary to the reasoning of the AAT Decision at CB 855 at [38]-[41], the applicants’ construction is not inconsistent with the decision of the Federal Court in Liang v Minister for Immigration & Citizenship& Anor [2009] FCA 189; (2009) 175 FCR 184; (2009) 107 ALD 88 (“Liang”) or the ratio of the decision of this Court in Yang. The reasoning is also consistent with the decisions of the Full Court of the Federal Court in Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301 (“Xiang”) and the High Court in Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 84 ALJR 251; (2010) 264 ALR 417; (2010) 114 ALD 1 (“Berenguel”). The AAT Decision interpreted Yang and Liang as requiring that the same main business must satisfy the criteria in cll.892.211 and 892.221 of Sch.2 to the Migration Regulations. However, that aspect of the reasoning in Liang depended on differently worded regulations, which required the main business to be “of the kind” nominated to satisfy the criteria in the predecessor to cl.892.221 of Sch.2 to the Migration Regulations. Under the current regulations, it is the “applicant”, and not the “main business” who must satisfy the continuing criteria in cl.892.221 of Sch.2 to the Migration Regulations, and (picking up the language of cl.892.211 of Sch.2 to the Migration Regulations) may do so through “one or more main businesses”;
e)the general principles of statutory legislation apply to delegated legislation: King Gee Clothing Company Proprietary Limited & Ors v The Commonwealth & Anor (1945) 71 CLR 184; [1945] ALR 397; (1945) 19 ALJ 239; CLR at 195 per Dixon J;
f)this requires a consideration of the “purpose” of the provisions, which is to be found in the text and structure of the delegated legislation (with reference to extrinsic materials where relevant). Where there is a conflict between the Migration Act and the Migration Regulations, the Migration Regulations must be read in a manner consistent with the Migration Act: Berenguel at [26] per French CJ, Gummow and Crennan JJ;
g)the relevant provisions of the Migration Act are as follows:
Section 55(1)
Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
h)there is no requirement in the text of cll.892.211 or 892.221 of Sch.2 to the Migration Regulations that the criteria in those clauses must be satisfied (respectively) at the time of the application or the time of the decision. A number of the decided cases proceed on the assumption that the headings effectively re-write the text to have that effect. In Berenguel, the High Court was faced with similar provisions of the Migration Regulations, and the Minister attempted to rely on the heading “Criteria to be satisfied at time of application” to limit the time at which evidence could be provided to satisfy a visa criterion: see Berenguel at [24] and [25] per French CJ, Gummow and Crennan JJ. The High Court rejected this submission at [26], holding that:
Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
“The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.” (emphasis added)
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
i)that reasoning plainly applies here. The express statutory language of s.55 of the Migration Act compels the Minister to consider relevant information submitted after an application has been lodged. It is in that context that Yang and Liang should be considered;
j)as a preliminary matter, neither Yang nor Liang involved the facts of this case, where a second “main business” is nominated due to a change in ownership of the first “main business”. Those decisions either involved attempts by a visa applicant to suggest that the same trading business, operating through different corporate structures, did not impinge on the limit that there be only two nominated “main businesses”: Yang; CB 855 at [38], or otherwise to apply where a gap in ownership existed between the main businesses: Liang;
k)in Liang the Federal Court was determining an appeal from a decision which interpreted the predecessor to cl.892.221 of Sch.2 to the Migration Regulations, being cl.845.213 of Sch.2 to the Migration Regulations, which relevantly provided that:
(a) has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and
(b) continues to have an interest of that kind.
l)the Federal Court considered itself bound by the judgment of the Full Court in Xiang: Liang at [47] per Logan J, that use of the word “continues” in the Migration Regulations ought to be interpreted as follows:
If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.
m)in Liang at [53] per Logan J the Federal Court reasoned that these provisions of the Migration Regulations ought to be treated differently to those considered in Xiang because:
These are Delphic qualities attending ascertaining the effect of cl 845.221 in relation to continued satisfaction of cl 845.213, even with the benefit of the guidance offered in Xiang’s Case. As a matter of first impression, cl 845.213 appears to be status based in the sense that it looks to the possession of an “ownership interest” in a “main business” or businesses. Subclause 845.213(a) carries a temporal limitation which looks to the 18 months immediately preceding the application. There is though a further and cumulative temporal limitation itself utilising the transitive verb “continues” found in cl 845.213(b).
The evident concern of the further temporal limitation in cl 845.213(b) is that the “ownership interest” in one or more “main business” over the period of 18 months immediately preceding the application must be maintained, “continued”, throughout whatever period elapses thereafter until the application is made. In other words, the intention, reflected in the language of cl 845.213(b), is that there should be no gap in the holding of an ownership interest.
…
Further, the continued interest must be one “of that kind”. In context, the reference in cl 845.213(b) to “of that kind” is, in my opinion, to be read as a reference to the “main business” or businesses referred to in cl 845.213(a).
(Emphasis added);
n)it is clear that the reasoning in Liang was that a second main business could be nominated where, as here, the ownership interest “continued” without a gap in the holding. The additional criterion identified in Liang, that the business be the same business used to satisfy cl.845.213(a) of Sch.2 to the Migration Regulations, depended on additional language in cl.845.213(b) of Sch.2 to the Migration Regulations, “of that kind”. This additional language is no longer present in cl.892.211 of Sch.2 to the Migration Regulations. Currently, it is the “applicant”, and not the “main business” that must satisfy the continuing criteria in cl.892.211 of Sch.2 to the Migration Regulations, and (picking up the language of cl.892.211 of Sch.2 to the Migration Regulations) may do so through “one or more main businesses”. The language “has had, and continues to have” only incorporates that part of the work done by cl.845.213(b) of Sch.2 to the Migration Regulations that relates to the requirements that there should be no gap in the holding of an ownership interest;
o)in Yang this Court considered the provision of the Migration Regulations at issue in this case and at [65], [67] and [68] per Judge Driver held that (footnote omitted):
65. Contrary to the applicants’ submissions, it is clear when clause 890.211, 890.221 and regulation 1.11(2) of the Regulations are read together that one or both of the main businesses nominated for the purpose of satisfying clause 890.211 must be those used to satisfy the criteria in clause 890.221.
67. Regulation 1.11(2) makes clear that an applicant can only nominate up to two main businesses for the purposes of an application. The time of application criterion requires the nomination at time of application of one or more main businesses in Australia, which must, by reg 1.11, be limited to two. An applicant must continue to hold an ownership interest in those main businesses over a period of two years.
68. It is, in my view, clear that the regulation is intended to ensure continuity in the holding of an ownership interest. Such continuity is emphasised by the requirements in reg 1.11(1)(b) to maintain a direct and continuous involvement in the day to day management of those businesses. The requirement in cl 890.221 that an applicant continue to satisfy cl 890.211 at the time of decision, requires the applicant to continue to satisfy the requirement in light of the limitation on the number of main businesses which can be nominated for the purpose of the Regulations at the time of application. There is nothing “extreme” or “arbitrary” in such a construction. Rather, such a construction is consistent with the regulatory requirement for ownership continuity over a two year period prior to application. A similar argument made by the applicant was rejected in relation to a similar regulation in Liang v Minister for Immigration and Citizenship.
p)regulation 1.11(2) of the Migration Regulations makes clear that an applicant can only nominate up to two main businesses for the purposes of an application for a Business Visa. The time of application criterion requires the nomination at time of application of one or more main businesses in Australia, which must, by reg.1.11 of the Migration Regulations, be limited to two. An applicant must continue to hold an ownership interest in those main businesses over a period of two years;
q)the requirement in cl.890.221 of Sch.2 to the Migration Regulations that an applicant continue to satisfy cl.890.211 of Sch.2 to the Migration Regulations at the time of decision, requires the applicant to continue to satisfy the requirement in light of the limitation on the number of main businesses which can be nominated for the purpose of the Migration Regulations at the time of application;
r)the applicants adopt what was said in Yang at [68] per Judge Driver, and say that their case is consistent with that reasoning; and
s)the applicants accept that what is said in Yang at [65] per Judge Driver is against their interpretation, but submit that this passage in Yang was wrong, and ought not be followed for three reasons. First, the passage is dicta (the holding at [68] was that only two main businesses could be nominated). Second, his Honour appears to have been persuaded by the fact that a similar argument was made in Liang and may have considered himself bound by that. However, as set out above, Liang involved the interpretation of different regulations. Third, the reasoning is not consistent with the following textual analysis:
i)the limitation on a “main business” in reg.1.11(1) of the Migration Regulations does not operate by reference to whether the business was nominated on Form 1217 but instead restricts the number of main businesses that may be nominated to two main businesses;
ii)applying the reasoning in Xiang, the “ownership interest in a main business” is a status-based criterion with a temporal limitation. To the extent that parts of the “main business” requirements are ongoing (such as the requirement for continued managerial involvement), those requirements were met by the first applicant’s involvement in Partner Australia as at the date of the AAT Decision. Contrary to what is said in Liang at [67] per Judge Driver, there is no requirement that “an applicant must continue to hold an ownership interest in those main businesses over a period of two years”. The temporal limitation in cl.892.211 of Sch.2 to the Migration Regulations is that there must have been a continuing interest in one or more “main businesses in Australia for at least 2 years immediately before the application is made”. This re-enforces the submission that ownership requirement is not an “activity based criterion carrying with it no temporal limitation”;
iii)to the extent that there is any uncertainty about these matters, the uncertainty flows from the attempt to strain the ordinary interpretation of the Migration Regulations to fit within the headings. As the High Court observed in Berenguel, the Court should prefer a construction that does not generate unfairness and absurdity, particularly if the approach proposed by the applicants does not compromise the purpose of the Migration Regulations; and
iv)taking all of these factors together, it is clear that the proper construction of the Migration Regulations allowed the first applicant to nominate a second “main business” after the application was made. That second main business was capable of satisfying any eligibility criteria not already met by the first main business.
Minister’s submissions
The Minister submitted that:
a)the applicants raise the issue whether the main business nominated for the purpose of satisfying cl.892.211 of Sch.2 to the Migration Regulations must be the business used to satisfy cl.892.221 of Sch.2 to the Migration Regulations;
b)the Minister contends that the AAT Decision was correct in holding that the main business nominated for the purpose of satisfying cl.892.211 of Sch.2 to the Migration Regulations must be the business used to satisfy cl.892.221 of Sch.2 to the Migration Regulations;
c)the AAT’s construction is supported by Yang, although, as noted in the AAT Decision at CB 856 at [44], Yang related to cll.890.211 and 890.221 of Sch.2 to the Migration Regulations. However, cl.890.211(1) of Sch.2 to the Migration Regulations is identical to cl.892.211(1) of Sch.2 to the Migration Regulations, and cl.890.221 of Sch.2 to the Migration Regulations requires that at the time of decision the applicant must continue to satisfy cl.890.211 of Sch.2 to the Migration Regulations, just as cl.892.221 of Sch.2 to the Migration Regulations requires that at the time of decision the applicant continues to satisfy cl.892.211 of Sch.2 to the Migration Regulations;
d)the Minister contends that Yang therefore cannot be distinguished, and must be followed unless it is considered to be clearly wrong;
e)the Minister cited Yang at [68] per Judge Driver (which is set out at [12(o)] above);
f)Yang is clearly correct, as an interpretation of cll.890.211 and 890.221 of Sch.2 to the Migration Regulations that requires continuity in the holding of an ownership interest from the time of application to the time of decision, is consistent with the intent of the regulatory requirements read as a whole. The same interpretation equally applies to cll.892.211 and 892.221 of Sch.2 to the Migration Regulations.
g)clause 892.221 of Sch.2 to the Migration Regulations requires that at the time of decision an applicant has had and continues to have an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application was made. This is due to cl.892.221 of Sch.2 to the Migration Regulations expressly requiring that the applicant “continues to satisfy the criteria in clauses 892.211 and 892.214” (emphasis added). That requirement cannot be met where, as here, the “main business” on which the applicant relies to satisfy cl.892.221 of Sch.2 to the Migration Regulations was only acquired by her after the date of the Business Visa application, and at the date of the AAT Decision the applicant had had an ownership interest in the business for only 1 year 3 months;
h)the Minister’s position is also supported in Liang and Zhu & Ors v Minister for Immigration & Anor [2016] FCCA 1874 (“Zhu”);
i)in Liang the relevant clauses were cll.845.213 and 845.221 of Sch.2 to the Migration Regulations. Clause 845.213 of Sch.2 to the Migration Regulations required that at the time of application the applicant had to have an ownership interest in one or more established main businesses in Australia, and to have had such an interest for the period of 18 months immediately before the making of the application, and that the applicant continues to have an interest of that kind. Clause 845.221 of Sch.2 to the Migration Regulations was a time of decision criterion that provided that the applicant “continues to satisfy the criteria in clauses 845.213 to 845.218” of Sch.2 to the Migration Regulations;
j)in Liang at [53]-[59] per Logan J the Federal Court held that the ownership interest in the one or more main businesses must be maintained (“continue”) throughout whatever period elapses thereafter until the application is made, and that to satisfy that criterion as at the date of decision the visa applicant must have engaged in that business activity throughout the period between the date of application and the date of decision;
k)the reasoning in Liang is equally applicable to cll.892.211 and 892.221 of Sch.2 to the Migration Regulations. Accordingly, the applicant was only able to satisfy cl.892.221 of Sch.2 to the Migration Regulations if at the time of the AAT Decision, and throughout the period between the date of Business Visa application and the AAT Decision, she had had an ownership interest in NZN. As the applicant did not have such a continuous ownership interest in NZN (the ownership interest having ceased on 2 December 2014), the AAT was correct to conclude that cl.892.221 of Sch.2 to the Migration Regulations was not satisfied, and the AAT Decision does not involve jurisdictional error; and
l)in Zhu the Court at [34] per Judge Hartnett agreed with the approach taken by the AAT that an applicant for a Business Visa cannot rely on an ownership interest at the time of decision to satisfy the requirements of cl.892.221 of Sch.2 to the Migration Regulations, if that applicant did not rely on an ownership interest in that business at the time of application to satisfy the requirements of cl.892.211 of Sch.2 to the Migration Regulations. The judgment in Zhu is directly on point, and the Minister contends that it is clearly correct and should be followed.
Consideration
In the Court’s view the law with respect to this issue is accurately set out in Zhu at [29]-[31], where reference is made to both Xiang and Liang, as follows:
a)in Liang at [40[-[41] per Logan J, the Federal Court had regard to the observations in Xiang at [9] per Goldberg, Finkelstein and Weinberg JJ, that the meaning of the word “continues” must be gathered from its context;
b)the word “continue” was said in Liang at [54] per Logan J to mean as follows:
54. The evident concern of the further temporal limitation in cl 845.213(b) is that the “ownership interest” in one or more “main businesses” over the period of 18 months immediately preceding the application must be maintained, “continue”, throughout whatever period elapses thereafter until the application is made. In other words, the intention, reflected in the language of cl 845.213(b), is that there should be no gap in the holding of an “ownership interest”.
c)that the ownership interest that an applicant must continue to have is the ownership interest that the applicant had at the time of making the application, and must be an interest in the same main business: Liang at [55]-[56] per Logan J, and that it is necessary in order to satisfy the “continue to have” requirement that an applicant continue to have an ownership interest “in the same main business at the time of decision”: Zhu at [30] per Judge Hartnett; and
d)further support for the views expressed above can be drawn from reg.1.11(1)(b) of the Migration Regulations which requires that a “main business” be one in relation to which an applicant “maintains, or has maintained, direct and continuous involvement” in the day-to-day management of the business, which is a further textual indication that it is necessary for an applicant to continue to have an ownership interest in the same main business at the time of decision: Zhu at [31] per Judge Hartnett, citing Liang at [57]-[59] per Logan J, and to allow an applicant to rely upon a different ownership interest to satisfy the relevant criteria would subvert the continuity of involvement required by reg.1.11(1)(b) of the Migration Regulations: Zhu at [31] per Judge Hartnett, citing Liang at [56] per Logan J.
In circumstances where the Court considers that Zhu has accurately summarised Liang (which had regard to the judgment of the Full Court of the Federal Court in Xiang), and both Zhu and Yang have applied Liang to require that an applicant continue to have an ownership interest in the same main business nominated at the time of application, judicial comity requires that unless the Court as presently constituted considers Zhu and Yang to be plainly wrong, which it does not, then those judgments ought to be followed: see See v Granich & Associates [2008] FMCA 27 at [16]-[18] per Lucev FM; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 (“SZANS”) at [38] per Weinberg, Jacobson and Lander JJ. Further, the same result also applies by reason of the Court being bound by the judgment in Liang: SZANZ at [38]-[39] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ, and being bound irrespective of whether the view expressed might be obiter dicta: SZANS at [38] per Weinberg, Jacobson and Lander JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[54] per Judge Lucev.
The Court does not consider that reliance on ss.54 and 55 of the Migration Act in relation to the provision of information to the AAT necessitates a different outcome to that suggested by Liang, Yang and Zhu. There is no doubt that the AAT was obliged to consider material information provided to it, but that information does not alter the form of the application made or the business there referred to, and in this case does not alter the fact that the Business Visa application only nominated one main business at the time of the application.
Finally, the Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In this case the Court has had access to and read all of the relevant papers including the transcript of the hearing on 28 February 2017, the outlines of submissions filed by the applicants and the Minister, the CB of relevant materials, including the AAT Decision at CB 848-857, and the various judgments referred to in the submissions of the parties. The case involved no witness evidence or examination at the hearing of the matter before the Court, and save for the first applicant’s affidavit filed with the originating application and annexing a copy of the AAT Decision, there is no affidavit evidence. Essentially, the matter involved a question of the proper construction of the relevant legislative provisions to an undisputed set of facts. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Conclusion and orders
The Court has concluded that the AAT Decision is not affected by any error, let alone jurisdictional error, and it follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 12 August 2019
5
10
3