Liang v Minister for Immigration and Citizenship
[2008] FMCA 966
•16 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIANG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 966 |
| MIGRATION – Review of Migration Review Tribunal decision – visa application – original decision by the Tribunal was subject to successful review – upon reconsideration as directed by this Court the application was again refused. |
| Migration Regulations 1994 Migration Act 1958 (Cth) |
| Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 129 FCR 448 Rao v Minister for Immigration and Multicultural and Affairs [2001] FCA 1755 Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation [1990] 171 CLR 216 Saffron v Societe Miniere Cafrika (1958) 100 CLR 231 Xiang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64 |
| Applicant: | TUNG-LIANG LIANG |
| Respondents: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
| File Number: | BRG 673 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 3 December 2007 |
| Date of Last Submission: | 3 December 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 16 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Steele |
| Solicitors for the Applicant: | Sciaccas Lawyers & Consultants |
| Counsel for the Respondent: | Ms A. Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That unless either party makes application within seven (7) days of the date of this judgment to be heard on and for an order to the contrary I will make an order in the usual terms that costs follow the event. In that case the applicant will pay the respondent’s costs of and incidental to the application to be assessed on a standard basis or fixed in accordance with the Court rules, whichever is appropriate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 673 of 2007
| TUNG-LIANG LIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
Respondents
REASONS FOR JUDGMENT
Introduction
Tung-Liang Liang, his spouse, Ae Ja Son and their dependent child Albert Liang applied for a Business Skills (Permanent) visa on 19 November 2003. The application has a lengthy history. It has been rejected by the delegate for the Department of Immigration and Multicultural Affairs and in turn the Migration Review Tribunal. The original decision by the Tribunal was subject to successful review. Upon reconsideration as directed by this Court the application was again refused on 11 July 2007.
Review is sought of the Tribunal’s decision of 11 July 2007.
The applicant contends the decision of the Tribunal was affected by jurisdictional error because in the application before it the Tribunal:
a)Failed properly to understand or apply Regulation 1.11 of the Migration Regulations in that it found the applicant had nominated a third “Main Business” in contravention of Regulation 1.11(2). It did so because the Tribunal treated the applicant’s first two businesses discreetly. It was submitted they were in fact the same business but trading under different names; and/or
b)Failed properly to understand or apply criterion 845.221 in Schedule 2 to the Regulations by wrongly holding that the applicant did not satisfy criteria 845.221 because he did not continue to particularly satisfy criteria 845.213 and 845.216 of Schedule 2 to the Regulations.
By reason of those matters the applicant seeks orders that:
a)a Writ of Certiorari issue to the second respondent removing the decision from the Migration Review Tribunal handed down on 10 July 2007;
b)a Writ of Mandamus issue directed to the second respondent to rehear and determine accordingly to law the applicant’s application for review;
c)a Writ of Prohibition issue directed to the first respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the purported decision; and
d)the first and second respondents pay the applicant’s costs of and incidental to the application.
Statutory Provisions
The issue of a “Business Skills (Permanent) visa” is regulated by Schedule 2 of the Migration Regulations. In particular the visa is a Sub Class 845 visa. The relevant sub clauses of Sub Class 845 for the purpose of this review are sub clauses 845.213 and 845.216 and 845.221.
Criteria to be satisfied at the time of the application include:
“845.213 The Applicant:
(a) has had an ownership interest in one or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application;
(b) continues to have an interest of that kind.”
“845.216 In the 12 months immediately preceding the making of the application, the applicant, as the owner of a interest in a main business or main businesses in Australia, maintained a direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that effected the overall direction and performance of that business or those businesses.”
Regulation 1.11 defines main business and states,
“1.11(1) For the purposes of these Regulations and subject to sub regulation (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;
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions effecting the overall direction and performance of the business;
(c) the value of the applicant’s ownership interest, or the total value of the ownership interest of the applicant and the applicant’s spouse, in the business is or was at least 10% of the total value of the business; and
(d) the business is a qualifying business.
(2) If an applicant has, or has had, an ownership interest in more than one qualifying business that would, except for this sub regulation, be a main business in relation to the applicant, the applicant must not nominate more than two of those qualifying businesses as main businesses.”
Ownership interest means:
“…, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or…”[1]
[1] Regulation 1 of the Migration Regulations provides relevant definitions. For present purposes ownership interest and qualifying business are defined in Regulation 1.03. It in turn provides that an ownership interest has a meaning given to it in sub section 134(10) of the Act
The Regulations state that a qualifying business,
“means an enterprise that:
(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b) is not operated primarily or substantially for the purpose of speculative or passive investment;”
“845.22 Criteria to be satisfied at time of division.
845.221 The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.”
Background Facts
In this case the applicant in his Business Skills Profile Form 1138 to his application dated 19 November 2003 nominated two main businesses.
Main business 1 was nominated as “Golden International Pty Ltd trading as GNI Finance Corporation”. Its major business activity was described as “finance organisation”.
Main business 2 was nominated as “Golden International Pty Ltd”. Its major business activity was described as “meat/offal/coffee export”.
Golden Net International Pty Ltd (GNI) was a proprietary company incorporated on 9 April 1999. The company records before the delegate indicated that the applicant had been a director of GNI since incorporation.
There were various changes to the particulars made to the ASIC record for GNI. Unfortunately for the applicant these amendments have been attended with procedural irregularity. This has caused difficulty with the Tribunal and also has previously led others into error.
Overall the history is not precisely clear. However from the Tribunal’s decision the following appears:
a)In 2001 the applicant entered into a joint venture with a third party to operate a financial advisory and mortgage broking business. GNI was the vehicle used for this business. Difficulties arose between the joint venture partners because of financial irregularities. These came to light some time after the applicant lodged his visa application in November 2003. The conduct in question caused the applicant to suffer significant financial loss. Ultimately however a settlement was reached between the applicant and a third party and a Deed of Settlement was concluded in February 2005. It is not clear from the Tribunal’s decision what then occurred although it appears that the applicant ceased to maintain any financial interest in or further involvement with GNI from February 2005 when he also ceased as a director. His wife also ceased to be a director at this time[2]; and
b)Further the applicant stated that on 11 April 2005 he established a company called United Link Corporation Pty Ltd as his main business.
[2]MRT Decision para [21]
Before the Tribunal it was contended for the applicant that GNI was one business and so he had not nominated more than two businesses in its application. In any event it was submitted that even if the applicant had nominated two main businesses at the time of the visa application he could have two new main businesses at the time of the decision. That is, the main business nominated at the time of the decision did not have to be the same main business nominated at the time of the application.
The decision
The principal findings against the applicant in respect of which this application for review proceeds are:
a)The Tribunal misconstrued Regulation 1.11 in finding that GNI, being the applicant’s main business, conducted two and not one main business and that as the applicant had already nominated two main businesses at the time of his application it was not open to him to submit for consideration at the time of the decision the further nominated main business, that being United; and
b)That contrary to criterion 845.221 the applicant did not continue to satisfy criteria 845.213 and 845.216 as the business GNI ceased to be a “main business” from February 2005 because the applicant ceased to have direct and continuous involvement with the management of it from that time and so the applicant failed the ownership test at the time of the decision.
Misconstruction of Regulation 1.11
On this ground the applicant contended:
a)The Tribunal erred by treating the two entities as discreet businesses rather than one; and
b)Irrespective of (a) the Tribunal erred by considering only whether they were “main businesses” rather than qualifying businesses.
Two businesses not one
The applicant contended that the Tribunal wrongly concluded that GNI in the conduct of its finance and export business operations conducted separate businesses for the purposes of Regulation 1.11. He submitted that nothing in Regulation 1.11 indicates that the term “business” where provided for in the definition of “main business” should convey anything other than its ordinary meaning. That is, merely because GNI in its various guises was engaged in several types of enterprise did not mean that it was more than one business.
Accordingly it was submitted that the Tribunal had failed to understand or properly apply Regulation 1.11 and that that failure constituted jurisdictional error.
The concept of jurisdictional error has been addressed in various authorities and is well settled. McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (Yusuf)[3] referred with approval to a passage in Craig v State of South Australia[4] which held that where administrative tribunal:
“…falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is a jurisdictional error that will invalidate any order or decision of the Tribunal which reflects it.”[5]
[3] (2001) 206 CLR 323
[4] (1995) 184 CLR 163
[5] at [82]
The nature of “business” was debated on the hearing of the application. From that debate it was apparent that little if any material was placed before the Tribunal to assist it in its understanding of the business operations of GNI. However despite this the applicant was critical of the Tribunal for approaching its analysis of the issue without examining the nature of businesses as either being qualifying businesses or main businesses.[6] The applicant submitted that the Tribunal completely overlooked that step and simply made the bald assertion that what the Regulation required is that an applicant must not nominate more than two main businesses. It was submitted that the effect of this was to misdirect the applicant and place him on wrong notice about the Section 368 issues it required the applicant to address.
[6] T 11 line 30-40.
In summary the applicant complains that the Tribunal failed in its analysis of the applicant’s visa application to examine whether each of the businesses nominated as a “main business” satisfied the criteria by reference to the Regulation.
On its face the Tribunal’s decision proceeds on the premise that the applicant had correctly identified his main businesses and in so doing had given appropriate consideration to the definition provisions in the Regulations. By inference the applicant seeks to be relieved of an error he may have made in the preparation of his visa application.
From an examination of “Main Business 1” and “Main Business 2” in the application form it appears the applicant set out the criteria to satisfy the definition of main businesses provided for by Regulation 1.11. That being so the question of whether or not the finance organisation and the meat/offal/coffee export entity constituted a separate businesses was a matter of fact open to be considered by the Tribunal. In this case the Tribunal determined as a matter of fact that they were indeed separate businesses and its ruling was consistent with that determination.
In its written submissions the applicant contended that the Tribunal wrongly took the view that because the applicant in the application had nominated each of “Golden Net International P/L T/A GNI Finance Corporation” and “Golden Net International P/L” those two entities constituted two businesses for the purpose of Regulation 1.11. It should be noted that in the form they were nominated in the place provided for under the heading of “Main Business1” and “Main Business 2”.
Significantly Regulation 1.11(2) provides an applicant cannot nominate more than two qualifying businesses as “main businesses”.
Because of the Tribunal’s decision on this point it considered itself precluded from considering evidence adduced by the applicant of a third qualifying business, United, which he contended was also a “main business”.
In the submissions for the applicant at paragraph [20] Counsel contended:
“The applicant’s application for the Visa, Form 1138 shows that the applicant nominated only GNI as the relevant main business in which he had an net assets [sic]. In part D of the Form, at question 9, the business name is stated as “Golden Net International Pty Ltd T/A GNI Finance Corporation”. In the previous question 8, the same company name is given (i.e. GNI) although the form separates the two arms of the business into “finance origination” (which is shown as GNI T/A GNF) and “Meat, Offal, Coffee Export.”
The applicant’s contention continued submitting that nothing in Regulation 1.11 indicates the term “business” where it appears in the definition of “Main Business” has anything other than its ordinary meaning. Accordingly it was submitted that merely because “Golden Net” in its various guises was engaged in several types of enterprise does not mean it is more than one business”.[7]
[7] Applicant’s submission at paragraph [21].
The applicant continued:
“Importantly, there is no suggestion that the applicant nominated GNF separately to GNI as an established “Main Business”. That is GNF was merely one of the trading arms of GNI. It was GNI which was nominated as the relevant business”.
In the applicant’s submissions it followed that the Tribunal was wrong to state in its reasons:
“[T]he main businesses nominated by the Visa applicant were GNI and GNI Finance”.
The applicant says that they were not separately nominated businesses and that in fact they are the same business albeit that the trading name of GNI Finance related only to financial products.
In its written response the respondent noted the particular part of the Tribunal’s decision relevant to this issue. The respondent noted that the Tribunal in its Statement of Decision and Reasons stated:
“[35]…Further, the definition of main business in Regulation 1.11 requires, amongst other things, that an applicant must not nominate more than two main businesses. Therefore as the Visa applicant has nominated two main businesses GNI trading as GNI Finance Corporation and GNI, the Visa applicant cannot nominate as a further business, United. The representative submitted that as GNI Finance Corporation was not a separate legal entity, it could not be a separate main business. The criteria speak of businesses and just as two companies, or separate legal entity [sic], could share a business, one legal entity could have more than one business.”
The respondent contended the Tribunal’s construction and application of the term “business” was correct noting the regulation requires the nomination of businesses not of entities (such as a company) which may operate one or more than one business. It was submitted for the respondent that just as a single business can be carried on by more than one legal entity[8] that one legal entity can carry on more than one business.
[8] See Nasif v Minister for Immigration and Multicultural& Indigenous Affairs [2003] 129 FCR 448
The respondent submitted that it was not a requirement of a main business that it be carried on only by a single entity; see Nassif v Minister for Immigration and Multicultural and Indigenous Affairs (Nassif)[9]. Accordingly once the focus is on a business, as it was required by the Regulations, it is clear that the legal structure of the entity is not the dominant consideration. Rather the business itself should be the focus of attention.
[9] at [35].
The respondent contended some support for its position could be gathered by reference to the definition of “qualifying business” provided in the Regulations. The respondent noted that “qualifying business” is defined by reference to an “enterprise” and not by reference to the legal entity or entities which may operate that business.
In this case the applicant had nominated two businesses, each comprising a separate enterprise (one finance and one produce export) for consideration by the Tribunal.
The respondent’s response to this first issue is supported by the observations of Branston J in Nassif. In that case Her Honour was considering the meaning of the expressions “main business” and “main businesses” within the context of clause 845.215. After noting the term “business” was not defined she proceeded to consider the meaning by reference to its ordinary meaning as assisted by reference to both the Oxford and Macquarie dictionaries. She also considered observations made by the majority in Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation[10] before continuing:
“[32]…To understand the nature of a business that can be a “main business” it is necessary to give consideration to the definitions contained in s.134(10) of the Act and r1.03 respectively of “ownership interests” and “qualifying business”. Each of these expressions is used in r1.11.
[33] It is convenient first to consider the definition of “qualifying business”. This is because a “main business” in relation to an application for a visa must be a “qualifying business” (see r1.11(1)(d)). It is significant, in my view, that a “qualifying business” is defined to mean an “enterprise” of a particular kind. Each of the Oxford English Dictionary and the Macquarie Dictionary confirms that “enterprise” is a word of general meaning which is broadly synonymous with “undertaking”.”
[10] [1990] 171 CLR 216
Further, in Her Honour’s decision she noted:
“[35] I conclude that it is not a necessary characteristic of a “main business” for the purpose of the criterion specified by clause 845.215 that the business be carried on only by a single entity….”
It follows that given the term “business” has a meaning synonymous with “enterprise” or “undertaking” proprietorship is not a relevant characteristic. Accepting that view a single proprietor may carry on more than one business. In turn it may conduct more than “one main business” for the purpose of the Act. Just as Her Honour found the converse to be the case on the facts before her, namely, a business need not be conducted by a single entity.[11]
[11] At [35].
In this case GNI/GNL was capable of and did conduct two “main businesses” the first being a finance business and the second being a produce export business. Subject to them being “qualifying businesses”, the Tribunal was correct in finding they were “main businesses” for the purposes of the Act.
In oral argument the applicant sought to develop support for his position by reference to the enquiries to be addressed in paragraph 9 of the Form 1138 and in particular the reference only to “Global Net International P/L T/A GNI Finance Corporation” as indicating it was only one entity. However that submission is premised upon a presumption that each of the two main businesses had net assets. The note to Part D paragraph 9 only required the inclusion of an additional sheet if the applicant had “net assets in more than one main business”. It is clearly conceivable that where one entity conducts two businesses the assets will be vested with the holding entity and not form part of the businesses. In such circumstances, as occurred in this case, there would be no need to record the existence of assets used in the conduct of the other business. This would be particularly so if the nature of the assets owned by an entity could be deployed with the conduct of either of two businesses such as might be expected in the instant case where such assets might include only office equipment and other miscellaneous items required to conduct a tertiary service style business.
It follows from my view that the Tribunal did not err in its assessment of the businesses as being separate. It was a matter open to the Tribunal and it was not inappropriate or incorrect to resolve that issue without regard to issues of proprietorship. Having resolved that issue it was correct in not considering United as it was a third main business.
The Tribunal asked itself the wrong question
Additionally, in the course of oral argument it was submitted that irrespective of the first ground the decision was in error because the Tribunal asked itself the wrong question.
Even if my view is correct on the nature of “business” the applicant submitted in oral argument that the decision ought be set aside because the Tribunal asked itself the wrong questions. The applicant says that the Tribunal at [35] in its reasons incorrectly addressed the issue by noting that “an application must not nominate more than two main businesses”. It was submitted the correct question to be addressed was whether the businesses were qualifying businesses. He submitted that such an error was jurisdictional entitling him to the relief sought. He contended that by reason of the error all that followed it was in error.
The applicant’s submission takes the Tribunal’s decision out of context. In the preceding paragraph, paragraph [34] the Tribunal noted:
“The visa applicant also needs to satisfy the Tribunal that the main business or businesses are each a qualifying business as defined in regulation 1.11(1).”
The statement in paragraph [35] of the decision that “clause 845.213 and 845.216 require an applicant to have an ownership interest in a main business at the time of a visa application” is the next sentence, but one, following the earlier observations. When read in context clause 845.213 and 845.216 require the applicant to have an interest in a “main business”, a term which is defined to include a “qualifying business”. Clearly a consideration in that context would require a resolution of whether or not the applicant had a “qualifying interest”. For reasons which follow I consider it did. Accordingly this ground should also fail.
Earlier in the Tribunal’s decision it correctly addressed the matters it had to be satisfied of in its consideration of the application. That included the definition of qualifying business[12]. While it is strictly correct that the Tribunal did not embark upon a detailed examination of the factual matters relevant to concluding the businesses were qualifying businesses it is also apparent from the Tribunal’s decision that those matters were not in issue and taken to be axiomatic. For instance at [21] the Tribunal recorded that in evidence the applicant “entered into a joint venture with a third party to operate a financial advising and mortgage brokerage business [for which]…GNI was used as a vehicle. The visa applicant…mortgaged his house to provide a loan to GNI.”
[12] See paragraph [11] – [12].
Later evidence was addressed of a fraud occasioning loss to the applicant.[13]
[13] See decision of Tribunal at [21].
Additionally neither party put in issue before the Tribunal matters relevant to establishing a qualifying business. Those matters were taken as said. Nor was the matter addressed in argument.
The clear inference is that the matter was simply not an issue in the proceeding before the Tribunal. Indeed the Tribunal proceeded upon the premise that these businesses were “qualifying businesses” with the application failing because the businesses were held not to be “main businesses” at the time of the decision because the applicant failed the continuous involvement in management requirements provided for in regulation 1.11[14]. The matter never having been put in issue before this time cannot now be raised: Saffron v Societe Miniere Cafrika[15].
[14] See Tribunal’s decision at paragraph [36].
[15] (1958) 100 CLR 231 at 240.
It follows that I do not consider the Tribunal erred on either ground contended for by the applicant in support of its first ground of the application.
Application of Criterion 845.221
The second ground advanced by the applicant was the alleged failure by the Tribunal to properly understand or apply criterion 845.221.
At the outset the respondent contended an examination of this issue would only be material if the applicant had succeeded on its first ground of the application in relation to regulation 1.11. That is, GNI and GNF were not separate ‘main businesses” so it was open to the applicant to nominate another main business because of the limitation provided by regulation 1.11. In this case the second main business was United. I agree with that submission but for completeness and in the event my earlier view is incorrect I deal with the applicant’s second ground.
The applicant’s contention on this ground is that the Tribunal wrongly concluded that the applicant did not satisfy criterion 845.221 because it was wrong in finding he did not continue to satisfy criterion 845.213 and 845.216.
The applicant refers specifically to paragraph 38 of the Tribunal’s decision where it stated:
“Both clauses 845.213 and 845.216 refer to main business (or main businesses) which, as stated above, is defined in regulation 1.11. Therefore, the definition of main business must be met by the business in which the applicant has an ownership interest, whereas the owner of an interest, both at the time of the visa application and at the time of this decision. For these reasons the Tribunal finds that United is not a main business as it does not meet the definition of main business as the visa application did not have an ownership interest in United for at least eighteen months immediately preceding the making of the visa application.”
He submitted that from those reasons at [38] it appeared the Tribunal took the view the words, “continues to satisfy” in criterion 845.221 “refer to the same specific satisfaction as the applicant actually gave for criterion 845.213 and 845.216.” By that the applicant understood the Tribunal to mean that it was a requirement that there be a continuity of nominated entity at the time of both application and decision.
The applicant contends such a construction is incorrect. It submitted this was particularly so given that criterion 845.213(a) refers to “one or more” known businesses. In his submission the applicant contended those words indicated that the applicant was entitled to have a different “main business” or to change the nominated business (so long as continuity was maintained overall or eighteen months previously). Further he contended the second part of criterion 845.213 only required the applicant, at the time of the application, continue to have an interest “of that kind”. He submitted the use of the words “of that kind”, anticipated that between the time of the application and decision an applicant might have a different business albeit one that satisfies the definition of “main business”. He contended that in the absence of such a construction the words would otherwise have no utility.
It followed, in his submission, that the requirement in clause 845.221 that the applicant “continues” to satisfy clause 845.213 would logically allow for the applicant to continue to do so albeit with a different business and that nothing in the words of criteria 845.213 or 845.211 suggests the applicant is required to maintain an interest in a particular business during the period between the application and decision.
He contended such an approach was supported by the Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (Xiang)[16].
[16] [2004] FCAFC 64
The Respondent does not appear to challenge the applicant’s contentions to this point because the tribunal’s reasoning appeared questionable. Additionally it does not necessarily embrace the applicant’s contention that the Full Court’s decision in Xiang supports the applicant’s position.
However where the parties differ arises from that part of the applicant’s submission where he contends that all that is required by clause 845.221 is that the applicant still have an interest in a relevant business at the time of decision. That is that if even for some period between the time of application and the time of decision the applicant did not maintain an interest in a “main business” he would nonetheless satisfy clause 845.221 in respect of clause 845.213, provided he had a relevant interest at the time of the decision.
In this case that contention is significant because on the evidence the applicant ceased to have an interest in GNI from February 2005 and his involvement with United did not commence until April 2005. On the facts the applicant did not maintain a direct and continuous involvement in the management of a “main business” from the time of the application to the time of decision.
The applicant contends that his position is supported by a proper construction of clause 845.213 which distinguishes between the requirement to have an ongoing interest (i.e. clause 845.213(a)) and whether the applicant continues to have that interest (i.e. clause 845.213(b)). He submitted that the use of the words in clause 845.221, as in the second element of clause 845.213, implies that clause 845.221 does not require the ongoing, uninterrupted interest in a main business between the time of the application and the time of the decision. That is, the words “continues to” in the particular context denote the current existing state of affairs (i.e. at the time of application or, in the case of clause 845.221 at the time of decision) rather than the state of affairs leading up to the relevant time.
I do not accept that submission.
When construing the meaning to be given to the word “continuous” where it appears in clause 845.221 the applicant submits it should be construed relevant to the applicant’s status; a status which has a temporal condition. In support of this construction the applicant relies upon the approach of the Full Court in Xiang.
Accepting that construction, the only concern the Tribunal ought to have had was whether at the time of the decision the condition had been fulfilled. Accordingly the Tribunal on that basis ought not to have been concerned with the ongoing fulfilment of the condition between the time of making the application and the decision.
In Xiang the Court was considering regulation 806 and the criteria to be satisfied in respect of a “Family (Residence) Class AA) Subclass 806 visa” on the basis the applicant was a “special need relative”. Clause 806.213 detailed criteria to be satisfied at the time of the application. Criterion contained in clause 806.222 detailed criteria to be satisfied at the time of decision. Clause 806.221 provided:
“806.221 The applicant continues to satisfy the criteria in clause 806.213.”
It is notable that the criteria was in all material respects expressed in terms identical to the criteria provided for in clause 845.221 and criteria contained in clause 560.213 which I shall come to shortly. In fact an examination of the regulations provided for under the Act which import a requirement to satisfy criteria at the time of the decision are generally all expressed in those terms.
Significantly the Full Court when considering the word “continues” in clause 806.221 stated that its meaning cannot be considered in isolation. It noted its meaning must be gathered from the context[17]. With that approach in mind the Full Court observed that in its context the word “continues” was “not concerned with any activity on the part of the visa applicant, but rather with the applicant’s status; a status which has a temporal condition.”
[17] At [9].
The Court proceeded in that context to determine that although it was possible the draftsman assumed that a person who was a “special need relative” at the time of the application and continues to satisfy that condition on the day of decision would be a “special need relative”, throughout the intervening period there was no legal requirement that that be so. That is to say “continues” in that context did not require the status was uninterrupted.
The applicant relies particularly on the Full Court’s conclusion in that decision to support his construction that the words “continues” in clause 845.221 does not require an uninterrupted satisfaction of the time of application criteria through to the time of decision.
However it is clear from the judgment of the Full Court that it was not intending in its construction of the word “continues” in that decision to provide a universal definition. After dealing with the construction of the word “continues” in the context before them they continued:
“This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs…(Rao)[18]. There on a slightly different worded regulation Allsop J decided that the word “continues” was not intended to limit the enquiry whether the visa applicant in the case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word “continues” was used in a different context.”
[18] [2001] FCA 1755
It follows that for the decision in Xiang to be binding the context in which the word “continues” is used has to be materially similar to the context in that case. In my view for reasons which follow the context in which the word “continues” appears in clause 845.221 is not similar to the context to which the word appeared in clause 806.221.
In Rao Allsop J was considering an application in respect of a grant of a Student (Temporary) (class TU subclass 560) Visa. The application required that the consideration of both time of application criteria and time of decision criteria. As with the common formula provided in the regulations (clause 560.221) the time of decision formulation required the applicant to establish the applicant continued to satisfy the time of application criteria at the time of decision.
In dealing with that issue His Honour stated:
“[22] This leads me to return to the proper construction of clause 560.227. The respondent submits that to give sensible meaning to clause 560.227 one must view it as adopting of incorporating clause 560.213 into the temporal framework of clause 560.227 by reading it to mean that at the time of the decision, if the application has been made in Australia, the “applicant has complied substantially with the conditions to which the visa (if any) held, or last held by the applicant is, or was, subject (noting the importation of the words from clause 560.213).
[23] It was said that this construction gives effect to the evident purpose of the need to assess compliance at “the times of application and of decision by use of the mutatis mutandis importation of the perfect tense (“has complied”) from clause 560.213 into clause 560.227 and its operation as at the time of decision. Otherwise, it is said, a result is given which no rational purpose by overly weighting the effect of the tense in the word “continues”. This construction, it was said, does not ignore or write out the word “continues”. It just gives effect to the perfect tense in the adopted clause 560.213.
[24] I agree. I do not think that the word “continues” was intended to limit the enquiry only to the precise date of decision (which might be a date beyond the reach of any material before the delegate or the Tribunal); nor do I think that the use of the word “continues” was intended to restrict the enquiry to a visa held or had been held at or before the time of the application. No rational purpose consistent with the Act or the Regulations would be so advanced. Rather, the evident purpose of requiring substantial compliance with conditions attached to visas would be frustrated.”
Significantly, His Honour Allsop J’s reasoning was not disturbed by the Full Court in Xiang.
In this case, as in Rao, the significance of that construction is evident when one considers the factual circumstances. Between February and April 2005 the applicant did not have an ownership in a “main business” in Australia.
Looking then to the context of the criteria being considered in this case there are significant parallels between the matters required by clause 845.221 and clause 560.227 which are not apparent in clause 806.221. It follows this case is distinguishable from the decision in Xiang.
The context in this case is entirely different to the context in Xiang. The Court in Xiang observed the use of the word “continuous” was not concerned with any activity on the part of the visa applicant but rather with her status; a status which had a temporal condition.
In that instance the status was related to her nomenclature as a “special need(s) relative”. That characterisation in turn brought into question her “continue[d]” (capacity) to be “willing and able” to provide assistance. It was in respect of that matter that the Full Court considered the provision of assistance would normally be irrelevant. It recognised that events well beyond the visa applicant’s control may intervene as was the situation in that case.
However in Rao, like this case, the contextual nomenclature of the visa applicant involved activity to be assessed subjectively. That is to say, “relating to the subject or substance in which attributes inhere”.[19]
[19] Macquarie Dictionary Third Revised Edition, The Macquarie Library Pty Ltd at 1871.
In that instance the matter in issue was not the visa applicant’s status but rather his activity. Accordingly in Rao it concerned an examination of whether or not he was a student during the intervening period and undertook activity as such. In this case the construction requires an examination of whether or not the visa applicant had an ownership interest in a “main business” during the relevant period. In each instance these were factors over which the applicants had subjective control.
In this case he did not. It follows that in my view the Tribunal’s conclusion was correct although I agree with the respondent’s submission that the conclusion is more correctly reached by reason of the visa applicant not continuing to have an interest in a “main business” of the kind nominated as the nominated business between the time of application and decision.
This ground also fails.
Conclusion
The applicant seeks review of the decision of the Migration Review Tribunal made 11 July 2007 refusing his application for a Business Skills (Permanent) visa. He raised two grounds being that the Tribunal:
a)Failed properly to understand and to apply Regulation 1.11 of the Migration Regulations; and
b)Failed properly to understand and to apply Criterion 845.221 in Schedule 2 to the Regulations.
He sought prerogative relief including certiorari, mandamus and prohibition.
I consider that the Tribunal was correct;
a)in its construction and application of Regulation 1.11 of the Migration Regulations in finding that the applicant’s first two businesses were appropriately treated discretely despite the fact that they were owned by the one entity;
b)the applicant had sought to nominate a third “main business” in contravention of Regulation 1.11(2); and,
c)in its application of Criterion 845.221 in Schedule 2 to the Regulations because the applicant did not satisfy Criteria 845.221 as he did not at the time between the making of the application and the decision continue to satisfy the criteria provided for in 845.213 and 845.216 of Schedule 2 to the Regulations.
Orders
It follows that the application is dismissed. Unless either party makes application within seven (7) days of the date of this judgment to be heard on and for an order to the contrary I will make an order in the usual terms that costs follow the event. In that case the applicant will pay the respondent’s costs of and incidental to the application to be assessed on a standard basis or fixed in accordance with the Court rules, whichever is appropriate.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 16 July 2008
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