FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUSHNER v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 390 |
| MIGRATION – Appeal from Administrative Appeals Tribunal decision – cancellation of a business visa – Tribunal not satisfied that the applicant’s business was a “business” or an “eligible business” – whether the Tribunal erred in its interpretation of the term “business” or overlooked relevant material, or took into account an irrelevant consideration considered – whether the applicant was denied procedural fairness considered – no reviewable error found. WORDS AND PHRASES – “business”, “eligible business”. |
| Migration Act 1958 (Cth), s.134 |
| Foroghi v Minister for Immigration [2001] FCA 1875 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Koosasi v Minister for Immigration (2006) 43 AAR 462; [2006] FCA 1260 Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Re Tang and Minister for Immigration [2000] AATA 997 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 |
| Applicant: | MERVYN KUSHNER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 170 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 29 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Diamond Conway Lawyers |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 23 January 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 170 of 2009
| MERVYN KUSHNER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
Section 134(1)(a) of the Migration Act 1958 (Cth) (“the Migration Act”) enables a business visa to be cancelled if the Minister is satisfied that its holder has not obtained a substantial ownership interest in an eligible business in Australia.
This is an appeal from the decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm the cancellation of the applicant’s visa. The Tribunal concluded that the two companies which the applicant put forward as being eligible businesses were not eligible businesses. The first reason given was that they were not “businesses”. The second was that even if they were “businesses” they were not “eligible businesses”.
The following statement of background facts is derived from the applicant’s written submissions filed on 22 April 2009 and the Minister’s written submissions filed on the same day.
The applicant’s business visa was granted in relation to an entity called Kushner Kids Productions, and this visa was cancelled by the delegate because of concerns relating to that entity. The applicant established a further entity in Australia called Gravy Clothing at about the time he was served with the Notice of Intention to Cancel (NOITC) his visa. In his appeal to the Tribunal the applicant also sought to rely upon Gravy Clothing as well as Kushner Kids Productions Pty Ltd (“Kushner Kids”). The Tribunal made findings concerning both entities. The applicant’s submissions have…
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- AGLC
- Kushner v MIAC [2009] FMCA 390
- Case
- [2009] FMCA 390
- Decision Date
CaseChat Overview and Summary
The court was tasked with examining whether the Tribunal had erred in its interpretation of the terms "business" and "eligible business", and whether it had overlooked relevant material or taken into account irrelevant considerations. Additionally, the court considered whether the applicant had been denied procedural fairness during the proceedings. The interpretation of these statutory terms was central to the case, as it determined whether the applicant's business met the criteria necessary to qualify for a business visa. The applicant argued that the Tribunal had misconstrued the legislative provisions, while the Minister contended that the Tribunal's interpretation was correct.
The court found that the Tribunal had not erred in its interpretation of the terms "business" and "eligible business". It held that the Tribunal's decision was based on a proper consideration of the evidence and the relevant legislative provisions. The court also determined that the Tribunal had not overlooked any relevant material nor taken into account irrelevant considerations. Furthermore, the court was satisfied that the applicant had not been denied procedural fairness. Given these findings, the court concluded that there was no reviewable error in the Tribunal's decision, and therefore dismissed the applicant's appeal.
The court dismissed the application filed on 23 January 2009, affirming the AAT's decision to cancel Mr. Kushner's business visa. The Tribunal's findings that the applicant's business did not meet the statutory criteria for a "business" or "eligible business" were upheld, and no procedural errors were found in the Tribunal's process. This decision reinforces the importance of strict adherence to legislative definitions in the context of business visas and the scope of judicial review in such matters.
Orders
Orders of the court
1.
The application filed on 23 January 2009 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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