Li v Minister for Immigration - [2011] FMCA 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 167

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the First Applicant had been conducting a business in Australia a principal for at least 15 months on the day on which the visa application was made – whether the Tribunal considered if the First Applicant’s role as an adviser or consultant could be as a principal of the business.

Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), Schedule 2 clause 457.223(7A)(b)(i)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

First Applicant:

CHAO FU LI

Second Applicant:

KIU FUNG MARY LI

Third Applicant:

WOON CHIAM NICHOLAS LI

Fourth Applicant by her litigation guardian KIU FUNG MARY LI

LI HAN MADELINE LI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 55 of 2011

Judgment of:

Emmett FM

Hearing date:

16 March 2011

Date of Last Submission:

16 March 2011

Delivered at:

Sydney

Delivered on:

16 March 2011

REPRESENTATION

Counsel for the Applicants:

Mr Karp

Solicitors for the Applicants:

Mr Gu (Christopher Levingston & Associates)

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Ms Stone (DLA Phillips Fox)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 55 of 2011

CHAO FU LI & ORS

First Applicant

KIU FUNG MARY LI

Second Applicant

WOON CHIAM NICHOLAS LI
Third Applicant

LI HAN MADELINE LI/ BY HER LITIGATION GUARDIAN

KIU FUNG MARY LI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The first named applicant (“First Applicant”) is the husband of the second named applicant. The third and fourth named applicants are the children of the First Applicant and the second named applicant. The second, third and fourth named applicants’ claims are dependant on those of the First Applicant.
On 13 December 2007, the First Applicant lodged an application onshore for a 457 Business (Long Stay) visa.
On 22 October 2008, the Delegate refused the First Applicant’s application for a Temporary Business Entry (Class UC) visa on the basis that he did not meet the criteria required for subclass 457 Business (long stay) visa.
On 5 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 21 December 2010, the Tribunal affirmed the decision of the Delegate.
On 13 January 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The issue before the Court is whether or not the First Applicant met the requirements provided in Schedule 2 clause 457.223(7A)(b)(i) of the Migration Regulations 1994 (Cth). That clause required the First Applicant to have conducted a business in Australia as a principal for at least 15 months prior to 13 December 2007, being the date on which the application was made.
Relevantly, clause 457.223(7A)(b)(i) states that the First Applicant meets the requirements if on the day on which his visa application is made he has been conducting the business in Australia as a principal for at least 15 months.
The Applicants were represented by Mr Karp, of counsel. Mr Karp confirmed that the Applicants relied on the ground in an amended application filed on 1 March 2011. That ground is as follows:
“The Tribunal decision committed jurisdictional error by failing to consider and apply Clause 457.223(7A)(b)(i) in its statutory context
Particulars
(a) Failure to consider whether, in the circumstances of this case, threw was more than one “principal” of the relevant business, and whether, following on from that, the “principals” were responsible for different facets of the business.
(b) Failure to consider whether in the circumstances of this case, the first applicant’s role as adviser or consultant to the business (as found by the Tribunal), was consistent with his directing the operations of the business and thus being a “principal” thereof.
The Tribunal’s review and decision are accurately summarised in the written submissions of counsel for the Respondent as follows:
“3. The basis of the Tribunal’s decision was that the Applicant did not satisfy cl 457.223(7A)(b)(i) of Schedule 2 to the Migration Regulations 1994, requiring that on the day on which the application for the visa was made he “had been conducting the business in Australia as a principal for at least 15 months” (ie since 13 September 2006). The relevant business was “Great Wall Kitchen”, a Chinese restaurant in Lakemba.
4. The Applicant’s oral evidence to the Tribunal was that from March 2005 until May 2007 he was in Sweden, but made weekly phone calls to his brother concerning the business. The Tribunal found that the Applicant’s involvement during this period was in the nature of an adviser or consultant, and that his brother and sister in law in Australia directed and managed the business during this period: CB 260-261 [45]. The Tribunal further noted that the Applicant’s claim to be the principal of the business at the time he was in Sweden was inconsistent with the very limited knowledge that he displayed of the financial state of the business during this period in his oral evidence to the delegate and the Tribunal: CB 261 [48-49]. The Tribunal found an alleged letter sent in December 2006 (but presented to it after the hearing) mentioning financial statements and tax returns under cover of Christmas greetings (CB 223-225) was contrived: CB 262 [50]. Accordingly, while it accepted that the Applicant was a principal of the business after his arrival from Sweden in May 2007 (CB 262 [52]), it did not accept that in the prior nine months when he was in Sweden the Applicant was a principal of the business: CB 262 [51]. He therefore did not satisfy cl 457.223(7A)(b)(i) and so the visa had to be refused: see s 65(1)(b) of the Act.”
The Tribunal applied proper dictionary definitions to the terms “conduct” and “principal” which are not otherwise defined in the regulations. The Tribunal found that in the Macquarie dictionary online at relevantly states that “conduct” (as a verb) means “to direct an action or course; manage; carry on”. “principal” is relevantly defined as “a chief, head, or governing officer”
The Tribunal also noted that it had taken into account the policy guidelines in PAM3 relating to this criterion, which state that a principal is “a person who directs and is in charge in any organisation”.
Mr Karp conceded that there was no error by the Tribunal in using those definitions. Mr Karp also conceded that the Tribunal had correctly identified the issue before it as follows:
“The Tribunal must determine whether on the day the application is made, namely 13 December 2007, the first named applicant had been conducting the business in Australia as a principal for at least 15 months; clause cl457.227(7A)(b)(i).”
Mr Karp also agreed that the Tribunal was correct in stating that consideration of whether the First Applicant was conducting the business in Australia as a principal requires more than just establishing the First Applicant’s formal role or part in the ownership structure of the business, and involves an assessment of the nature of the First Applicant’s role in the business.
The First Applicant resided, owned and ran a restaurant in Sweden. In March 2005 he acquired a 50% interest in his brother’s restaurant business in Sydney and in July 2007 bought 100% of the business from his brother. Until May 2007, the First Applicant resided in Sweden.
The Tribunal accepted that from May 2007, the First Applicant was a principal of the restaurant business in Australia. However the Tribunal found that in practice, the First Applicant’s involvement in the business during the period he was still in Sweden was in the nature of an adviser or consultant, and that his brother and sister-in-law in Australia, directed and managed that business. The Tribunal found that whilst he was still residing in Sweden, the evidence strongly indicated that the First Applicant provided advice to his brother covering different aspects of the business, but focusing on matters relating to the cuisine, (including the menu and actual preparation of the dishes) and marketing of the restaurant. The Tribunal accepted that the examples given by the First Applicant of suggestions he made, such as improving the menu, changing opening hours, and making menu changes to reflect the local demographic, were not insignificant in the context of the scale and nature of the restaurant’s operations.
The Tribunal then stated that it had taken into account the terms of a partnership contract, dated 1 March 2005, between the First Applicant and his brother and sister-in-law in respect of the Sydney restaurant. The partnership contract stated that the First Applicant’s brother and sister-in-law would “take responsibility for the operation and management of the restaurant”. The contract stated that the First Applicant agreed to “take responsibility for advising and providing new ideas for business development prospects particularly with the introduction of new dishes and updating the menu list from time to time”.
It is common ground that the Tribunal’s finding that the partnership contract referred broadly to the First Applicant and his wife taking responsibility for the operation and management of the restaurant business is incorrect. However, Mr Karp correctly does not suggest that this factual inaccuracy is a jurisdictional error on the part of the Tribunal.
Further, Mr Karp concedes that the Tribunal’s finding that in practice the First Applicant’s involvement in the business, whilst he was still in Sweden, was in the nature of an adviser or consultant, was open to the Tribunal.
Mr Karp submitted that the error made by the Tribunal was that, having found that the First Applicant’s involvement in the business whilst in Sweden was in the nature of an adviser or consultant, the Tribunal had failed to consider whether involvement of that nature was capable of being as a principal of the business.
However, the Tribunal makes clear in its decision record that it was not satisfied on the evidence before it, that the First Applicant was conducting the business as a principal during any of that period while he was still residing in Sweden.
The Tribunal accepted that after his arrival in Australia at the end of May 2007, the First Applicant took direction and control of the business and was from that time conducting the business as a principal. However, the Tribunal was not satisfied that on the day on which the application was made, the First Applicant had been conducting the business in Australia as a principal for at least 15 months, where he was residing in Sweden for about 9 months of that period.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave proper consideration to all the supporting evidence before it provided by the First Applicant but was ultimately not satisfied that the First Applicant was conducting the business as a principal whilst he was still residing in Sweden. In circumstances where the Tribunal makes that specific finding, then a finding that a principal does not include an adviser or consultant, is subsumed in the Tribunal’s finding of greater generality that the First Applicant was not a principal whilst residing in Sweden (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641).
To the extent that the ground of the application asserts that the Tribunal failed to consider whether there was more than one principal of the business, a fair reading of the Tribunal’s decision record does not suggest that the Tribunal had a view that it was not possible for a business to have more than one principal.
Accordingly, the ground of the application is not made out.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 16 March 2011