Lee v Minister for Immigration
[2004] FMCA 174
•19 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 174 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of business visas – principal applicant failing to establish a relevant ownership interest – claim of a transfer of ownership to the principal applicant rejected by the MRT – evidence of a transfer of ownership available but not submitted to the MRT – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), ss.134, 351
Migration Regulations 1994
NAMS v Minister for Immigration [2004] FCA 189
| First Applicant: Second Applicant: | JIN SOOK LEE SUK HO YOON |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1410 of 2003 |
| Delivered on: | 19 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 19 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| The first and second applicants appeared in person, and on behalf of the third and fourth applicants |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
The first applicant is to pay the setting down fee of $327, payable prior to the hearing of this matter, within 14 days or obtain a waiver.
The respondent is granted liberty to inspect and uplift from the court file any documents, including exhibits, and to remove from the court premises and photocopy any such documents, subject to the proviso that any documents removed from the court file are returned to it as soon as is practicable.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1410 of 2003
| JIN SOOK LEE |
First Applicant
SUK HO YOON
Second Applicant
YEO SEOP YOON
Third Applicant
SOO JUNG YOON
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 16 June 2003. The MRT affirmed a decision of a delegate of the Minister not to grant to the applicants a business skills residence (Class BH) visa. There are four applicants, a wife, her husband and two adult children. The principal applicant is the wife. It is she, Ms Lee, who had to demonstrate satisfaction of the relevant criteria in order to obtain a visa. The fate of the visa applications by the other applicants necessarily depended upon the fate of the visa application by Ms Lee.
The relevant background facts are set out in written submissions prepared by Mr Bromwich on behalf of the Minister and filed on 16 March 2004. I adopt paragraph 1 through to paragraph 4 of those written submissions for the purposes of this judgment:
The first applicant (“the applicant”), a national of Korea, first arrived in Australia on 26 February 1998 on an Electronic Travel Authority (Class UD) visa and was subsequently granted a temporary Business Entry (Class UC) visa and later a Business (Long Stay) visa, the last of these being valid until 3 March 2002. On 26 February 2002, the applicant applied for a Business Skills (Residents) (Class BH) visa. Her application included her husband and two children. (CB 1) These proceedings concern the failure of that application.
The criteria for the Business Skills (Residents) (Class BH) visa are set out in Part 845 of Schedule 2 of the Migrations Regulations 1994 (“the Migration Regulations”). Part 845.213 provided that the applicant had to have an ownership interest in one or more established main business[es] in Australia for a period of 18 months immediately preceding the making of the application and continued to have an interest of that kind. The applicant nominated one main business, COAH Pty Ltd (court book, page 3.2). Various documents submitted by the applicant indicated that it was not she, but rather her husband, who was the owner of COAH Pty Ltd. These documents included a copy of an extract from the Australian Business Register (court book, page 56), a company extract form (court book, pages 109-110), annual returns to the Australian Securities and Investments Commission for the years 2000 and 2001 (court book, pages 113, 111) and a share certificate (court book, page 117).
On 27 August 2002, a delegate of the respondent refused the grant of the visa sought on the primary ground that the applicant’s spouse and not the applicant was the sole owner of COAH Pty Ltd (court book, page 126). An additional reason for the delegate refusing the grant of the visa was that COAH Pty Ltd’s turnover did not reach $50 million in two of the last four years and therefore failed to pass the necessary points test (court book, page 127.5). The applicant also failed the requirement to make a designated investment of at least $750,000 (court book, page 127.6).
On 13 September 2002, the applicant applied for a review of the delegate’s decision by the MRT (court book, page 130). On 16 June 2003, the MRT handed down a decision affirming the delegate’s refusal of the grant of the visa (court book, page 173). In reaching this decision, the MRT:
a)noted that the applicant had submitted at the review ASIC historical extracts and annual returns for the year 2001, which indicated that she was a director of the business and that her husband had 100% ownership interest of the business (court book, page 176 [15]);
b)recorded that the applicant gave evidence at a hearing on 29 April 2003 to the effect that her husband had established the company but had to return to Korea and that she had taken over running the company, had invested $150,000 on the company and believed that she owned 100% of the company (court book, page 176 [16]);
c)noted that the applicant’s husband gave evidence to the effect that he had to return to Korea and that he had requested his accountant to process a change in ownership of the company and that he signed a share transfer in June 2000 (court book, page 176 [17]);
d)noted that there was no evidence of the share transfer on the Department’s file or on the MRT’s file, notwithstanding requests for that evidence both by the Department and by the MRT (court book, page 176 [18]);
e)noted that ownership interest is, by regulation 1.03, given the same meaning as provided in s.134 (10) of the Migration Act 1958 (Cth) (“the Migration Act”) as meaning an interest in business as a shareholder, partner, or sole proprietor, including an indirect interest through interposed companies, partnerships or trusts (court book, page 177 [22]);
f)found that there was no evidence that the applicant had ever held any shares in the nominated business (court book, page 177 [23]);
g)concluded that as the applicant had not satisfied a mandatory criterion for the visa sought, the MRT had no option but to affirm the decision under review (court book, page 177 [24]).
As will appear there are some other relevant facts which emerged during the course of today's hearing. The applicants proceed on the basis of their application filed on 23 July 2003. That application simply recites the relief sought and does not disclose any cause of action. However, an affidavit by David John Prince, the solicitor then acting for the applicants, was also filed on 23 July 2003. Paragraphs 3 and 4 of that affidavit set out what I accepted as the grounds of review relied upon by the applicants and the particulars of those grounds.
I did not accept the affidavit as evidence of the truth of the allegations made in it.
Read together, the application and affidavit assert jurisdictional error on the part of the MRT by stating that a stamped transfer document was needed by the first applicant in order to satisfy the relevant visa criteria. More particularly, it is alleged that the MRT stated that an ownership interest would not be established until such time as stamp duty on a share transfer was paid to the Office of State Revenue. Whatever may have been the merit of that assertion, it transpired during the hearing before me that it was irrelevant because no transfer document was put in evidence before the MRT. Secondly, a share transfer form which was put in the evidence in the proceedings before me (exhibit A1) was in fact stamped.
The application and affidavit also assert that the MRT erred in finding that there was no evidence that the first applicant, Ms Lee, held shares in the nominated business. For the purposes of considering that assertion the relevant part of the MRT decision begins at paragraph 20 of the reasons (court book, page 176). I incorporate paragraphs 20-23 of the presiding member's reasons into this judgment:
The criteria for a subclass 845 visa are contained in Part 845 of Schedule 2 to the Regulations. The threshold criteria (being the time of application and the time of decision criteria) that an applicant must meet for this visa (other than the points test in Schedule 7) are set out in clauses 845.211 to 845.221.
The central issue is whether the visa applicant is able to satisfy clause 845.213 which provides that at the date of the application:
The applicant:
(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.
Ownership interest is by regulation 1.03 given the same meaning as provided in section 134(10) of the Act which is:
“ownership interest”
in relation to a business, means an interest in the business as:
(a)a shareholder in a company that carries on the business; or
(b)a partner in a partnership that carries on the business; or
(c)the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts;
the visa applicant’s agent submitted ASIC historical extracts and Annual Returns for the year 2001 which show that the visa applicant and her husband are both directors of the nominated business Coah Pty Ltd (T1, f.3-10). The Annual Returns also show that the spouse of the visa applicant holds all the issued shares in the company. There is no evidence that the visa applicant has ever held any shares in the nominated business.
The second applicant, Mr Yoon, gave oral evidence in the proceedings before me. He tendered, and I accepted, exhibit A1, a standard transfer form which purports to be a transfer of shares in Coah Pty Ltd executed by him and by Ms Lee on 13 June 2000. Mr Yoon also tendered, and I accepted as an exhibit (A2), what purports to be an annual return of the company. The last page of which is a supplementary information form. That form dated 23 April 2003 states that the sole shareholders name in the company should be changed from Suk Ho Yoon to Jin Sook Lee. The documents, on their face, purport to be a transfer of shares in the company from Mr Yoon to Ms Lee on 13 June 2000 and advice to ASIC on 23 April 2003 that the shareholder's name should be changed to reflect the transfer.
Mr Yoon gave oral evidence that neither of those documents were put before the MRT. He stated that two migration agents and a solicitor, Mr Prince, were instructed during the period prior to the decision of the MRT. It appears that the applicants initially instructed a Mr Choi. However, they were dissatisfied with his performance and instructed a Mr Ri. This change appears to have taken place at the end of March or the beginning of April 2003. Further, prior to the decision of the RRT, the applicants withdrew instructions from Mr Ri and instructed Mr Prince.
It is clear from the record of the MRT proceedings that it was apparent to the applicants that they needed to establish that the first applicant, Ms Lee, had an ownership interest in the company. Time was granted by the MRT in order for evidence of that ownership interest to be presented. By the time the MRT hearing was conducted on 29 April 2003 the documentary evidence which had been presented pointed clearly to Mr Yoon being the sole shareholder of the company. Mr Yoon and Ms Lee had given oral evidence of an agreement between them for the shareholding to be transferred from him to her. The presiding member notes at paragraph 18 of his reasons (court book, page 176):
The Tribunal noted that there was no evidence of the share transfer on the Department's file or on the Tribunal's file notwithstanding that the Department had requested evidence of ownership by the visa applicant. The Tribunal requested the visa applicant to provide evidence of ownership within 14 days of the date of the hearing. On 3 May 2003 the migration agent requested a copy of the audiotape of the hearing and this was supplied the same day. On 6 May 2003 the migration agent advised that he was no longer acting for the visa applicant and that a new agent had been appointed. The Tribunal has not been contacted by a new migration agent and the visa applicant has not supplied proof of ownership of the shares in the company as requested at the hearing.
Mr Yoon confirmed in his oral evidence before me that that is, indeed, what happened. At the relevant time Mr Ri had been acting as the applicants’ migration agent but his instructions were withdrawn and Mr Prince was instructed instead.
I note in passing that, although Mr Prince was acting for the applicants at the time they filed their application for review in this Court, he withdrew from the record on 27 November 2003. He was not present in Court and was not available to corroborate these facts. However, I have no reason to doubt what the presiding member said in his reasons for decision and what Mr Yoon confirmed in his oral evidence.
It is clear from those facts that at the time the MRT made its decision there was no evidence before it that Ms Lee had an ownership interest in the company necessary to establish the visa criteria derived from clause 845213.
On the contrary, the documentary evidence, including an annual return from the company derived from the records of ASIC, showed that Mr Yoon was the sole shareholder. In these circumstances, there is no substance to the assertion in the application and affidavit that the MRT erred. In that regard I adopt in part for the purposes of this judgment paragraphs 6 and 7 of Mr Bromwich's written submissions:
It is clear that where the MRT is referring to there being no evidence of the share transfer at page 177 [23] of the court book, that was a reference to the absence of any documentary evidence on either the Department’s file or the MRT’s file as referred to at court book, page 176 [18]. …
The highest that the applicant’s case reached was a belief on her part that she owned 100% of the company and an assertion by her husband that he had signed a share transfer, but nothing to support either that belief or that assertion [was produced]. In these circumstances, there was nothing wrong with the MRT not being satisfied that the applicant had the necessary ownership of the company. In the relevant sense, there was no evidence of that ownership because no document had been produced to indicate that the applicant owned the shares in the company.
Mr Yoon told me in his oral evidence that he had sought to make arrangements through Mr Ri and Mr Prince for at least exhibit A1 to be drawn to the attention of the MRT. As a result of what appears to have been a breakdown in communications between Mr Yoon, Ms Lee, Mr Ri and Mr Prince, that did not occur. If exhibit A1 had been drawn to the attention of the MRT it is at least hypothetically possible that it might have made a difference. However, it is not the fault of MRT that the applicants did not avail themselves of the opportunity granted by the MRT to put forward additional documentary evidence.
It appears from page 154 of the court book that the MRT took the trouble to check the ASIC records once again on 18 March 2003. That check confirmed that Mr Yoon was the sole shareholder of the company. Assuming that exhibit A2 is a genuine document, if the MRT had checked the ASIC records after 23 April 2003, a changed situation would have been revealed. However, the MRT was not to know that the ASIC records would change in that way in that time.
The applicants cannot point to anything said or done by the MRT that gives rise to any want of procedural fairness. If there was any material default by Mr Ri or Mr Prince, that does not establish procedural unfairness under Australian law. The apparent existence of documents pointing to a change of ownership of the company prior to the decision of the MRT is a factor that could be taken into account by the Minister under s.351 of the Migration Act. Those documents on their face raise a question of whether in fact the correct decision was made by the MRT.
Having regard to the decision of the Federal Court in NAMS v Minister for Immigration [2004] FCA 189, I consider it inappropriate to include any recommendation in the orders of the Court. However, in the circumstances of this matter, it would be appropriate for the Minister's legal advisers through her Department to consider the situation. Of course, it is always open to the applicant to request Ministerial intervention under s.351 of the Migration Act.
There is no jurisdictional error in the decision of the MRT. In the circumstances, I must dismiss the application and I do so.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Bromwich tells me that the Minister has incurred legal costs in this matter in the order of $5,000. The applicants did not wish to make any submissions on costs. On a party-party basis I think a costs order in the range of $3,000-$,4000 would be appropriate. I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500. I will also order that the first applicant pay the setting-down fee of $327 payable prior to the hearing of this matter within 14 days.
For the purposes of facilitating any consideration that the Minister may wish to give to this matter I will also grant the respondent liberty to inspect and uplift from the court file any documents, including exhibits, and to remove from the Court premises and photocopy any such documents, subject to the proviso that any documents removed from the court file are returned to it as soon as is practicable.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 March 2004
0
1
0