M M International (Australia) Pty Ltd (ACN 088 104 170) v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 880

FEDERAL COURT OF AUSTRALIA

M M International (Australia) Pty Ltd (ACN 088 104 170) v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 880

MIGRATION – prerogative relief – business sponsor – business visa – whether creation or maintenance of employment – whether expand trade – whether improve business links – whether contribute to competitiveness – whether introduce or utilise new or improved technology or business skills – whether demonstrated record of or commitment to training – whether Migration Review Tribunal misapplied criteria – whether Tribunal failed to consider material – whether denial of procedural fairness.

Judiciary Act1903 (Cth) s 39B

Migration Regulations 1994 (Cth) regs 1.20D, 1.20D(2)(a), 1.20D(2)(a)(i), 1.20D(2)(a)(ii), 1.20D(2)(a)(iii), 1.20D(2)(a)(iv), 1.20D(2)(c), 1.20D(2)(c)(i), 1.20D(2)(c)(ii), 1.20D(2)(f)

Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 cited

M M INTERNATIONAL (AUSTRALIA) PTY LTD (ACN 088 104 170) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

A 1 OF 2003

DOWSETT J
22 AUGUST 2003
BRISBANE (VIA VIDEO LINK) (HEARD IN CANBERRA AND SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 1 OF 2003

BETWEEN:	M M INTERNATIONAL (AUSTRALIA) PTY LTD (ACN 088 104 170) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	22 AUGUST 2003
WHERE MADE:	BRISBANE (VIA VIDEO LINK) (HEARD IN CANBERRA AND SYDNEY)

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 1 OF 2003

BETWEEN:	M M INTERNATIONAL (AUSTRALIA) PTY LTD (ACN 088 104 170) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	22 AUGUST 2003
PLACE:	BRISBANE (VIA VIDEO LINK) (HEARD IN CANBERRA AND SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application made pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative relief in connection with a decision of the Migration Review Tribunal (the “Tribunal”), refusing to approve the applicant as a standard business sponsor. The applicant is a company incorporated in Australia. The respondent is the Minister for Immigration and Multicultural and Indigenous Affairs (the “Minister”). The applicant requires the approval so that it can employ Mr Mohammad Munir Hussain, a Bangladeshi national, as managing director. Mr Hussain has applied for an appropriate visa on behalf of himself and his family. He is effectively in control of the applicant.

   BACKGROUND

2. Mr Hussain represented the applicant at a hearing in the Tribunal on 23 September 2002, following which he submitted a statutory declaration setting out its case in some detail.

3. Mr Hussain was educated in Bangladesh.  His family has a history of involvement in trade, and he has been employed in various family businesses.  In 1982, in Bangladesh, he formed a company called “MM International Proprietary”.  This company imported products from Asia, Europe, the Middle East and the United States of America.

4. Mr Hussain first came to Australia in 1997.  He conducted market research with a view to establishing a business here.  He left Australia but returned with his family on 20 June 1998, entering under a temporary business visa.  He was introduced to a migration agent who led him to believe that he could obtain a long-stay business visa if MM International Proprietary was approved as a business sponsor.  An application for such approval was made on 14 August 1998.  Mr Hussain also applied for a long-stay business visa.  He left Australia on 18 August 1998 but visited again during the periods 30 October - 2 November 1998 and 30 January - 16 March 1999.  By letter of 25 February 1999 Mr Hussain was notified that his application for a long-stay business visa has been refused, primarily because MM International Proprietary was not operating a business in Australia and therefore did not qualify as a sponsor. 

5. Mr Hussain entered Australia again on 14 May 1999.  He caused the applicant to be incorporated in New South Wales.  The date of incorporation was 22 July 1999.  In October 1999 the applicant imported a consignment of prayer mats from Turkey.  Mr Hussain returned to Bangladesh on 4 January 2000 but returned on 30 March, remaining until 22 June 2000.  The present application was made on 23 May 2000.  During this visit the applicant, through Mr Hussain, arranged the importation of quantities of religious books, magazines, newspapers and school books for the Bengali community.  It also imported craft items.  Mr Hussain returned to Australia on 20 September 2000 and remained until 25 June 2001, during which time he received three consignments of books and magazines which he sold.  It may be that these were received as a result of the arrangements made during the previous visit.  On 4 May 2001, the applicant exported a quantity of long-life fruit juice to Bangladesh.  On 14 May 2001, the applicant exported a quantity of polishing compound to that country.  During this visit, Mr Hussain also sought to negotiate a contract to export generators to Bangladesh.  He claims to have negotiated a contract or contracts worth $US5,500,000.  The deal or deals failed following a change of government in Bangladesh.  In describing these various transactions, Mr Hussain sometimes referred to the applicant, and sometimes to himself, as the importer/exporter.  It is probable that he meant to imply that he had engaged in these activities on behalf of the applicant.  I proceed on that basis.  

6. Mr Hussain returned to Australia on 12 August 2001 and has remained here since that date, living first in Sydney and then in Canberra.  At some stage, he sought to negotiate a joint venture agreement with a Mr Hossain for the importation of furniture, but this man defrauded him to the extent of $A80,000.  Mr Hussain says that in October 2001, the applicant commenced to sell used furniture in Fyshwick, a suburb of Canberra.  This business was later moved to Phillip, another suburb.  Mr Hussain hoped to use the cash flow to recoup his losses.  At the time of his statutory declaration the applicant had accumulated $A40,000 worth of stock which it hoped to sell for up to $A80,000.  These figures were, of course, those current at the time of the statutory declaration.  Mr Hussain said that the business had not progressed as well as he had hoped and that he was supplementing his Australian income from income derived in Bangladesh. 

7. There is some inconsistency in this aspect of the evidence.  The applicant’s tax return for 2000-2001 (R [Vol 2] p 64) suggests that it was retailing second-hand furniture during that tax year.  Mr Hussain suggested that the Fyshwick business was commenced in October 2001.  The Tribunal apparently proceeded upon the former basis.  See par 27 of the reasons.  The applicant has not suggested that it erred in doing so.  It seems that either the date in par 31 of Mr Hussain’s statutory declaration is erroneous or Mr Hussain was distinguishing between the business conducted at Fyshwick and another business of the same kind.  In July 2002 the applicant opened a café in Canberra.  Mr Hussain, on behalf of the applicant, continues to investigate other export/import opportunities.  See par 39 of his statutory declaration.  He claims that, since coming to Australia in 1998, he has spent substantial amounts in connection with travel, business and living expenses.  He has access to further funds in Bangladesh.  He provided the Tribunal with a business plan for the applicant.  Other details of the applicant’s past business activities appear from the Tribunal’s reasons.  These were presumably derived from information provided orally by Mr Hussain.

8. The business plan indicates that the applicant’s primary business is to be exporting and/or importing, apparently to and from countries such as Bangladesh, Nepal, Pakistan, Turkey, Korea and China.  The plan asserts that the applicant has good prospects because of the reputation enjoyed by its parent company (MM International Proprietary) in the overseas market place.  The applicant proposes to focus on importing:

   •publications (general and religious);

   •regional gifts;

   •specialised furniture items “targeting” Pakistani and Bangladeshi communities; and

   •general furniture/gift items for the general public.

9. The export operation will focus on:

   •animal by-products;

   •Australian agricultural products;

   •pulses and seeds;

   •dairy products; and

   •metal products and polishing compounds.

10. The plan contains many assertions about the applicant’s capacity and resources and about Mr Hussain’s experience.  It is said that he has had over fifteen years’ experience in importing/exporting and that he facilitates and speaks at conferences at both local and regional levels.  However there is little concrete evidence of how these assets will be utilized in order to build a successful business.  At R [Vol 2] pp 134-178,  there are numerous order forms, invoices and other documents received or issued by the applicant.  However there is no explanation of how or why they were brought into existence.  They suggest a history of sporadic transactions rather than an ongoing business.  To some extent, they seem to deal with transactions which do not fit into the trading pattern described by Mr Hussain in his statutory declaration or into the applicant’s business plan. 

    DECISION OF THE MINISTER’S DELEGATE

11. The applicant submitted its Business Sponsorship Application on 23 May 2000. On 18 July 2001 a delegate of the Minister determined that the applicant did not meet the requirements of par 1.20D(2)(c) of the Migration Regulations 1994 (Cth) (the “Regulations”). She made no finding as to any of the other relevant criteria. The application was refused.

    DECISION OF THE TRIBUNAL

12. An application for review of the delegate’s decision was received by the Tribunal on 15 August 2001. It affirmed the decision on 16 December 2002, holding that the applicant did not meet the criteria described in pars 1.20D(2)(a), (c) and (f) of the Regulations.

    THE CURRENT APPLICATION

13. The applicant now seeks a writ of certiorari, setting aside the Tribunal’s decision, and a writ of mandamus, directing the Tribunal to re-hear the original application.  The amended application identifies nine grounds of review as follows:

    1.The Migration Review Tribunal erred in law in that it did not apply in accordance with law the criteria set out in Migration Regulation 1.20D to the evidence before the Migration Review Tribunal.

    2.The Migration Review Tribunal erred in law in that it failed to interpret the criteria set out in Migration Regulation 1.20D in accordance with the ordinary rules of construction relevant to this regulation.

    3.The Migration Review Tribunal failed to take account of relevant considerations.

    4.The Migration Review Tribunal took account of irrelevant considerations.

    5.The Migration Review Tribunal decision was against the evidence before the Tribunal.

    6.The Migration Review Tribunal failed to take into account evidence, both oral and documentary before the Tribunal.

    7.The Migration Review Tribunal did not give the applicant procedural fairness in that it made findings that certain evidence was not before the Tribunal when in fact that evidence had been provided to the Tribunal.

    8.The Migration Review Tribunal erred in law in that it applied the criteria in Migration Regulation 1.20D to findings of fact that certain evidence was not before the Tribunal when in fact that evidence had been provided to the Tribunal.

    9.The Migration Review Tribunal failed to … give the applicant procedural fairness and natural justice in that it did not issue a notice under s.359A Migration Act 1958.

14. In argument, however, the applicant advanced two specific criticisms, namely:

    •that the Tribunal had misunderstood the relevant tests prescribed in the Regulations; and

    •that it had failed to consider material provided to it by the applicant, such failure constituting a denial of procedural fairness.

15. The case does not call for a detailed examination of the extent of the Court’s jurisdiction to review decisions of this kind, as discussed by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454. I assume for present purposes that if the Tribunal asked itself the wrong question or failed to afford procedural fairness to the applicant, there was jurisdictional error sufficient to justify intervention.

    THE RELEVANT CRITERIA

16. Division 1.4A of the Regulations sets out the criteria which must be satisfied if the Minister is to approve an enterprise as a business sponsor. Regulation 1.20D provides relevantly as follows:

    (1)Subject to this regulation, the Minister may, in writing, approve or reject an application for approval as a pre-qualified business sponsor or as a standard business sponsor.

    (2)The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if:

    (a)the Minister is satisfied that the applicant for approval is lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to:

    (i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; or

    (ii) expansion of Australian trade in goods or services; or

    (iii)the improvement of Australian business links with international markets; or

    (iv)competitiveness within sectors of the Australian economy; and

    (b)…

    (c)the Minister is satisfied that the applicant for approval:

    (i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or

    (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia;  and

    (d)…

    (e)…

    (f)the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:

    (i)the applicant for approval is the employer referred to in subclause 457.223(4) of Schedule 2 in relation to a visa application; and

    (ii)the visa holder satisfies the requirements of that subclause;

    the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067.

17. An applicant must satisfy each of pars (a) to (f).  As I have said, the Tribunal concluded that the applicant did not satisfy pars 1.20D(2)(a), (c) or (f).  It will be helpful if I say a little more about the ambit of each of the applicant’s arguments before considering their merits in this case.

    WRONG TEST

18. In order to satisfy par 1.20D(2)(a) it was necessary that the Tribunal be satisfied that the applicant was operating a business in Australia in which the employment of Mr Hussain would contribute to at least one of the following outcomes:

    (i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; or

    (ii)expansion of Australian trade in goods or services; or

    (iii)the improvement of Australian business links with international markets; or

    (iv)competitiveness within sectors of the Australian economy … .

19. It is important to note that:

    •there must be an existing business in which the relevant person is to be employed;

    •the Minister must be satisfied that such employment will produce one of the four specified outcomes; and

    •the test looks to the future effect of such employment.

20. The applicant complains that the Tribunal wrongly considered whether the applicant had satisfied each of the four criteria in the past, rather than whether it would do so in the future.  Of course, the past is often a good guide to the future. The applicant cannot succeed in this argument if the Tribunal merely applied that approach.   

21. As I understand it, the applicant makes a similar criticism of the Tribunal’s approach to par 1.20D(2)(c).  It  required that the Minister be satisfied either that the applicant:

    (i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or

    (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; … .

22. These prescribed outcomes need not be produced by the employment of the relevant person in an existing business.  Subparagraph 1.20D(2)(c)(i) looks to the future, while subpar 1.20D(2)(c)(ii) propounds two alternatives:

    •an existing satisfactory record of training; or

    •an existing demonstrated commitment to training.

23. It is not entirely clear whether the applicant asserts a similar error in the Tribunal’s consideration of par 1.20D(2)(f) of the Regulations. That provision required that the Minister be satisfied that the applicant would be able to comply with an undertaking to be given by it as part of any arrangement for Mr Hussain’s employment. The nature of such undertaking appears from guidelines which are at R [Vol 2] pp 48 - 52. In effect, the applicant would be required to undertake to meet liabilities incurred by Mr Hussain and his family:

    •to the Commonwealth; and/or

    •for medical and hospital expenses; and/or

    •for repatriation expenses.

    PROCEDURAL FAIRNESS

24. At some stage, the applicant formed the view that the Tribunal had overlooked numerous documents which had been provided to it.  As they do not appear in the index to the Record, the applicant asserts that they must have gone astray and as a result, were not considered by the Tribunal.  The Minister’s position is that all documents on the relevant file are listed in the index to the Record, although some have not been reproduced.  The applicant was alerted to the possibility that documents had gone astray by the Tribunal’s observation at par 27 of its reasons that:

    No balance sheets or profit and loss reports have been provided to the Tribunal and a taxation return submitted indicated the review applicant earned a net profit of $1672 from the furniture business.

25. At the first hearing date of this application (29 May 2003), the applicant pointed out that in a letter dated 18 September 2002 (which is at R [Vol 2] p 62) it had purported to forward various documents including “Tax paper for two years” and “Loss & Profit Balance Sheet”.  It inferred that a tax return and the “Loss & Profit Balance Sheet” were missing.  The applicant indicated that it wished to investigate this alleged omission from the Record.  For that and other reasons, the matter was adjourned and continued in Sydney on 12 June.  On that occasion the applicant’s counsel read an affidavit by Mr Hussain filed 5 June 2003 in which he asserted that various documents had been sent to the Tribunal but were not mentioned in the index to the Record.  They are identified in pars 8 to 16 of the affidavit and exhibited to it. 

    DOCUMENTS REFERRED TO IN PARAGRAPH 8

26. I have previously referred to the letter of 18 September 2002 which is at R [Vol 2] p 62.  It purports to forward the following documents:

    1)Tax paper for two years.

    2)Loss & Profit Balance Sheet.

    3)Support letter from some known person.

    4)Current Business Activity Statement.

1. Of these, the Record contains one document headed “CURRENT BUSINESS ACTIVITIES STATEMENT OF M.M. INTERNATIONAL (AUSTRALIA) PTY. LTD.”, and a company tax return for 2000-2001.  Despite the singular “paper”, the first item suggests that tax papers relating to two years were forwarded.  As I have said, the Minister’s position is that all documents on the file are included in the index, although not all have been reproduced.  The applicant submits that in those circumstances documents which it understood were before the Tribunal, having been forwarded with the letter of 18 September, were in fact not before it.  In par 8 of Mr Hussain’s affidavit he describes and exhibits (ex A) two documents which he says were so forwarded, namely:

   •tax return for the 2001-2002 year; and

   •financial statements for that year.

   Nothing is said to turn upon the absence of the “Support letter” referred to in the letter of 18 September 2002. 

   DOCUMENTS REFERRED TO IN PARAGRAPHS 9 - 12 OF THE AFFIDAVIT

2. In par 9 of his affidavit Mr Hussain says that further documents were sent to the Tribunal under cover of a letter dated 6 June 2001.  He exhibits them as ex B.  Neither the letter nor any of the documents appears in the index to the Record.  The documents are said to be:

   •An invoice dated 18 May 2001 relating to the purchase of polishing compound, the weight of which is 1,320 kgs, referring to a contract dated 20 April 2001.  It seems likely that this refers to the same goods as are described in the next document.

   •A shipping document relating to a consignment of polishing compound weighing 1,320 kgs.  There is a note “EXPRESS RELEASE 14/05/2001”.

   •An invoice relating to a consignment of fruit weighing 82 kgs.

   •An invoice for a consignment of fruit juice weighing 72 kgs.

   •A bill of lading for 410 cartons of various juices, the document being marked “FREIGHT PRE-PAID SHIPPED ON BOARD 08/05/2001”.

3. The export of such goods is referred to in par 17 of Mr Hussain’s statutory declaration.  The Tribunal referred in its reasons (par 22) to the export of orange juice. 

4. In par 10 of his affidavit, Mr Hussain refers to a letter dated 30 April 2002 with which he allegedly forwarded a joint venture agreement, which is ex C to his affidavit.  The joint venture agreement is between Mr Hussain, acting on behalf of the applicant, and a Mr Abdul Maksud Ahmed, acting on behalf of an organisation called “Sapphire”.  It contemplates the importation into Australia from England of thirty-six prime movers to be purchased for $A1,440,000.  The purpose of the joint venture is said to be “… to market or operate fleets of prime movers and trailors (sic) in Australia …”.

5. In par 11 Mr Hussain refers to an assertion made in his statutory declaration that the applicant had imported prayer mats into Australia.  He exhibits as ex D copies of a bill of lading and an invoice relating to such importation.  He claims that he had previously forwarded these documents to the Tribunal and that a correspondence card, ex E to his affidavit, acknowledged receipt thereof.  Exhibit E is dated 3 April 2002 and acknowledges receipt of correspondence dated 25 March 2002.  A letter bearing that date is at R [Vol 2] p 227.  It makes no reference to the attachment of any such documents.  The deponent does not exhibit a copy of the letter with which he claims to have forwarded the documents.

6. In par 12 of his affidavit, Mr Hussain refers to par 24 of his statutory declaration in  which he claims to have imported books and magazines.  He exhibits certain invoices relating to such material (ex F), asserting that he sent them to the Tribunal in late May or early June 2002.  He annexes a correspondence card dated 11 June 2002 (ex G), acknowledging receipt of correspondence dated 5 June 2002.  A letter of that date is at R [Vol 2] p 217.  It makes no reference to such documents.  Again, Mr Hussain does not exhibit the letter which he claims to have sent with these documents.

   DOCUMENTS REFERRED TO IN PARAGRAPHS 13 - 16 OF THE AFFIDAVIT

7. Mr Hussain does not assert that these documents were before the Tribunal.  There is no basis for my receiving them in these proceedings.

   EXHIBIT 4

8. After Mr Hussain had been cross-examined on his affidavit, counsel for the applicant showed him a letter dated 2 June 2001.  It is ex 4.  The letter purports to be from a company called “Envirotech Worldwide Agencies”.  It offers to the applicant the sole rights to assemble and distribute an unidentified product in Bangladesh, Nepal, Bhotan and Myanmar for a sum of $US5,500,000, or in Bangladesh alone for $US2,000,000.  A deposit of $US300,000 was required.  Mr Hussain was asked if he had sent a copy of this letter to the Tribunal.  He said that he had done so, sending it by post and fax prior to the hearing.  He thought he had sent a covering letter.  It seems that the document relates to the transactions referred to in par 26 of the statutory declaration.  An examination of the way in which this evidence unfolded at TS 53 – 61 on 12 June 2003 demonstrates that Mr Hussain is able to respond to subtle suggestions as to what may be in his own best interests.

   CROSS-EXAMINATION AND FINDINGS

9. Mr Hussain was, in many ways, an unsatisfactory witness.  One must make allowance for the possibility that his English is less than perfect, but the impression which he created was that of a person who understood what was being asked of him but chose to be evasive in his answers.  I have already given one example of his apparently tailoring his evidence to fit his perception of what was in his best interests.  His claim that the Tribunal must have misplaced such a large number of documents is inherently improbable.  That the occasional document might go missing is reasonably possible, but his claims go much further. 

10. Nevertheless, the letter of 18 September was undoubtedly sent to the Tribunal.  It follows that Mr Hussain intended to send to the Tribunal the documents there described.  Whether he actually sent them is a different question.  It is possible that he overlooked doing so or that the documents miscarried in the course of the fax transmission.  I am less willing to accept that he posted copies of the documents as he suggested in his evidence.  It is unlikely that both the documents transmitted with the fax and the posted letter with enclosures should  have gone astray.  He did not refer to the posted letter in his affidavit.  I do not infer that the Tribunal received all of the purported attachments to the faxed letter of 18 September.  Nonetheless I consider that the Tribunal, having received the faxed letter without some of the attachments, ought to have made further enquiries.  Such enquiries would have put Mr Hussain on notice that his intentions had miscarried.  He would probably have produced the documents which he now propounds.  Whether those circumstances constitute a denial of procedural fairness may be doubted.  However I will assume as much for present purposes. 

11. As to the documents described in pars 9 - 12 of Mr Hussain’s affidavit, I am not persuaded that they were sent to the Tribunal.  As I have said, the suggestion that so many documents have been misplaced is difficult to accept.  Mr Hussain appeared at the hearing in the Tribunal on 23 September 2002.  It is curious that it did not become apparent, in the course of those proceedings, that documents were missing from the file.  Many of the documents may not have had particular significance.  However the document relating to the export of generators to Bangladesh and that relating to the importation of prime movers from the United Kingdom referred to potentially substantial transactions which did not fit easily into the past trading pattern of the applicant, nor into its plans for the future.  One would have expected such matters to have been the subject of substantial comment by Mr Hussain and inquiry by the Tribunal.  The generator transaction was raised in the statutory declaration which was sent after the hearing.

12. Mr Hussain referred to numerous correspondence cards which he had received from the Tribunal and to postal records.  I have demonstrated that in some cases, cards which he relied upon as evidencing the receipt of particular letters were equally capable of referring to letters included in the Record and demonstrably not the letters referred to by Mr Hussain.  I do not accept Mr Hussain’s evidence that he forwarded the letters and documents referred to in pars 9 – 12 of the affidavit.  I am similarly not satisfied that ex 4 was forwarded to the Tribunal.  As to the documents referred to in pars 13 - 16, I have ruled that they are, in any event, irrelevant to these proceedings, not having been before the Tribunal.  

13. The documents referred to in pars 9 - 12 of the affidavit would not have affected the outcome of the case.  Those referred to in par 9 (ex B to the affidavit) evidenced (amongst other things) the purchase and export of 1,320 kg of polishing compound.  The purchase price was $US7,920.  The transaction occurred in May 2001 and was referred to in par 25 of the statutory declaration.  There is no suggestion that the transaction was challenged or doubted, although it is not referred to in the reasons.  There is also an invoice for the purchase of 72 kg of fruit juice for $US800, a bill of lading for 410 cartons of juices, and an invoice for 82 kg of fruits for $US1,000.  All transactions apparently occurred in May 2001.  In his statutory declaration Mr Hussain referred to the export of “… a half container of long life fruit juice …”.  The statement was neither challenged nor, as far as I can see, doubted.  In the Tribunal’s reasons, there is a reference to the export of fruit juice.  There is no specific reference to the export of fruit. 

14. The only relevance of any of the transactions evidenced by the documents referred to in par 9 is to show that the company had, at some time prior to the Tribunal’s decision, engaged in sporadic export activities.  Although the Tribunal did not set out fully all such transactions, it understood that the applicant claimed some prior engagement in that area.  The question for the Tribunal was effectively whether it was satisfied that the employment of Mr Hussain, as the holder of an appropriate visa, would enable the applicant to establish such a business.  The basis advanced by the applicant for that view was Mr Hussain’s prior experience and contacts and the business plan.  That there had been, more than a year previously, a few export transactions would not have affected the outcome.

15. The document referred to in par 10 and exhibited as ex C is the joint venture agreement for the import of prime movers from the United Kingdom.  The joint purpose is said to be “… to market or operate fleets of prime movers and trailors (sic) in Australia …”.  The other party, Mr Abdul Maksud Ahmed, managing director of an organization called “Sapphire”, was to supply thirty-six prime movers purchased for $A1.44 million.  The applicant was to have them released from customs in Australia “at his cost”.  The parties agreed “… to select the best possible Vehicles suitable for Fleet operations in Australia …”.   The parties were jointly to investigate “… any changes necessary in the Prime Movers and … all formalities, expenses and others for smooth fleet operations and safety measures necessary in Australia”.  All profits and losses were to be shared equally.  The parties were also to share “… all responsibilities made out to them by this Joint Venture Agreement”.  This seems to imply a commitment by the applicant to an outgoing of $A720,000.  There is no suggestion that the transaction has proceeded.  Mr Hussain says that his visa status has prevented its implementation. 

16. This transaction was not referred to in the statutory declaration.  The absence of any reference to it in the reasons suggests that it was not referred to at the hearing.  It is too significant a transaction to have been overlooked.  It was well beyond the scope of anything previously undertaken by the applicant or proposed in the business plan.   There is certainly no suggestion in the plan that the applicant was to operate a fleet of prime movers and trailers in Australia.  If it was to be a “one-off transaction”, it was largely irrelevant to the case advanced before the Tribunal. 

17. The documents referred to in par 11 and exhibited as ex D are a bill of lading and an invoice for the purchase of $US1,200 worth of prayer rugs.  They seem to have been imported around October 1999.  This matter was also referred to in the statutory declaration.  It is not referred to in the Tribunal’s reasons.  Once again, it was an isolated transaction which had occurred some years prior to the decision.  The documents could not have made any difference to the Tribunal’s decision. 

18. In par 12 Mr Hussain refers to the import of printed material and exhibits certain documents relating to such importation as ex F.  According to pars 23 and 24 of the statutory declaration such importation and the sale of the goods occurred in late 2000 and early 2001.  The total cost seems to have been a little over $US7,000.  These matters were referred to in the statutory declaration.  There is no suggestion that the Tribunal doubted the claim although it is not referred to in the reasons.  Once again, it was an isolated transaction. 

19. Exhibit 4 concerned a transaction referred to in the statutory declaration.  As with the prime movers, I consider that had it been mentioned at the hearing, it would have been investigated and the absence of ex 4 from the file noted.  In any event, the transaction also goes beyond the scope of the applicant’s proposed import/export activities.  For that reason alone, it is largely irrelevant. 

20. I am mindful of the need to consider all of these prior transactions cumulatively.  I am nevertheless satisfied that the material in question would not have affected the Tribunal’s decision.  As I have said, the question was whether Mr Hussain’s employment would lead to a new import/export business in the areas and commodities identified in the business plan.  These sporadic transactions could not have assisted the applicant’s case. 

21. In any event, I have rejected the applicant’s claim that the documents referred to in pars 9 to 12 of the affidavit and ex 4 were forwarded to the Tribunal.  They cannot be received for present purposes. 

    THE TRIBUNAL’S REASONS

22. In its reasons, the Tribunal referred to the contents of the business plan and the draft training plan.  It also referred to Business Activity Statements for each quarter of the 2001-2002 year, observing that they showed that no amount had been paid by way of salary or wages.  It then set out information obtained from Mr Hussain at the hearing.  That information may have been less complete than that subsequently provided in the statutory declaration.  In par 23 of its reasons, the Tribunal referred to other documents, including the statutory declaration and a Business Activity Statement for the period July-September 2002.  In par 23 it made particular reference to the applicant’s record as an employer as disclosed in the statutory declaration. 

23. The Tribunal recorded its understanding that the applicant proposed to export tallow, chemicals and animal by-products and to import goods to Australia.  It also observed that Mr Hussain proposed to introduce or improve technology in the plastics industry.  One might infer that this referred to knowledge concerning the manufacture of plastic and/or plastic products.  However the material suggests that Mr Hussain’s knowledge rather concerned the import/export of such products and/or marketing of them.

24. The Tribunal disposed of the matter as follows:

    25.… The Tribunal is satisfied the review applicant is lawfully operating in Australia a business. …

    26.It is a requirement of Regulation 1.20D(2)(a) that the employment of the holder of a Subclasss 457 (Business (Long Stay)) visa would contribute to the creation or maintenance of employment for Australian citizens or Australian permanent residents.  The review applicant stated in a letter of 12 July 2002 that it was running a new and used furniture shop in Canberra and two trainees/employees worked there.  BAS statement (sic) submitted by the review applicant disclose that the review applicant did not employ any employees in the 2001 to 2002 income tax year and a BAS statement for the period July 2002 to September 2002 indicate(s) that $1936 was paid in PAYE tax for that period.  The review applicant has indicates (sic) that of the 4 persons employed in the period July to September 2002, only one was employed for a period of 7 weeks.  The gross salary paid during that period by the review applicant was less than $2000.  The Tribunal is not satisfied that the review applicant is creating employment or maintaining employment due to the limited employment for Australian citizens and residents to date.  The Tribunal is not satisfied the visa holder’s employment would create employment or maintain employment for Australian citizens and residents.  Therefore the review applicant does not meet Regulation 1.20D(2)(a)(i).

    27.In relation to the alternate requirement the visa holder’s employment would contribute to expansion of Australian trade in goods or services whilst the review applicant claims that it intends to expand import and export business, to date there has been no import or export income generated by the review applicant.  The review applicant had attempted to export juice but that produced no income.  No balance sheets or profit and loss reports have been provided to the Tribunal and a taxation return submitted indicated the review applicant earned a net profit of $1672 from the furniture business.  The Tribunal is therefore not satisfied the visa holder’s employment would contribute to expansion of Australian trade in goods or services and therefore the review applicant does not meet Regulation 1.20D(2)(a)(ii).

    28.In relation to the requirements that the employment of the visa holder would contribute to improvement of Australian business links with international markets or competitiveness within sectors of the Australian economy.  The review applicant has not provided any information to the Tribunal that would indicate this requirement is met.  The review applicant’s only source of income appears to be a furniture shop and a café.  (T)herefore the review applicant does not meet Regulation 1.20D(2)(a)(iii) and Regulation 1.20D(2)(a)(iv).

    29.…

    30.In relation to Regulation 1.20D(2)(c)(i) the review applicant has not made any claims or provided any evidence in relation to the criterion that the review applicant will introduce to, or utilise or create in, Australia new or improved technology or business skills.

    31.… the review applicant has provided a draft training plan for the financial year 2002/2003 in its business plan and a copy of Certificate of Appreciation dated 24 May 2002 from Skillz Business Development Initiative awarded to the review applicant for participating in the New Apprenticeship/Traineeship Program.  The evidence before the Tribunal is that the review applicant has employed 4 staff, one for 3 weeks, another for 2 months, a third for 7 weeks and the fourth for 2 weeks.  The Tribunal is not satisfied therefore that the review applicant has a satisfactory record or commitment toward either the employment or training of Australian citizens and Australian permanent residents in the business operations of the applicant in Australia.  The Tribunal finds Regulation 1.20D(2)(c)(ii) is not met.

    32.      …

    33.In relation to regulation 1.20D(2)(f) the review applicant has not provided any financial statements to show that it is able to comply with the undertakings in relation to its financial responsibility in accordance with form 1067.  Only one taxation return has been provided indicating a net profit of $1672.  No balance sheets or profit and loss statements have been provided to the Tribunal.  The review applicant does not meet regulation 1.20D(2)(f).

    THE APPLICANT’S CRITICISMS

1. I turn now to consider the validity of the applicant’s criticisms of the Tribunal’s decision.  I will deal with each of subpars 1.20D(2)(a), (c) and (f) separately.

   SUBPARAGRAPH 1.20D(2)(a)(i) – CREATION OR MAINTENANCE OF EMPLOYMENT FOR AUSTRALIAN CITIZENS OR PERMANENT RESIDENTS

2. The applicant asserts that the Tribunal addressed the past record of the applicant’s business rather than the prospect of its contributing to the creation or maintenance of employment opportunities in the future, as a result of Mr Hussain’s employment.  The Tribunal certainly based its conclusion primarily upon the applicant’s past performance.  It noted that, according to the applicant’s Business Activity Statements, it had employed no employees in the 2001-2002 tax year.  In his statutory declaration, Mr Hussain suggested that over the twelve months prior to the date thereof (23 October 2002), the applicant had employed four persons for periods of between two weeks and two months.  It had also employed a disabled person in the café.  This person proved “unsuitable”.  The Business Activity Statement for the period 1 July - 30 September 2002 showed total wages of $1,936.  I should observe that the Tribunal, apparently erroneously, described this amount as “PAYE tax for that period”. 

3. The Tribunal stated the correct test.  The applicant’s argument seems to be that the evidence demonstrates that the Tribunal must, nonetheless, have applied a different test.  It points to the references in par 26 to its employment history as demonstrating that the Tribunal looked only to the past.  As I have said, the past often provides a reliable guide to the future.  The Tribunal seems to have shared that view.

4. Apart from the absence of any history of consistent employment of staff, the business was “… only providing me with sufficient to survive”.  Mr Hussain was supplementing his income from the applicant’s business with funds derived from Bangladesh.  Clearly, there was no reason to expect that the existing business would create or maintain employment.  As to the possibility of the applicant’s re-entering the import/export business, there was no evidence that any steps had been taken in that regard, save for preparation of the business plan and Mr Hussain’s claim that he was looking for opportunities.  There is no reason to conclude that the Tribunal applied the wrong test. 

5. The missing documents identified in par 8 of the affidavit, had no direct bearing upon employment.  They showed only a marginal increase in net profit 2001-2002 over that for the previous year, and a slender excess of assets over liabilities.  The assets consisted mainly of trading stock (used furniture).  Nothing suggested a likely increase in the need for staff in the event that Mr Hussain was employed with an appropriate visa.  He had, of course, been engaged in the applicant’s business since its inception.  He claims to have been impeded in his activities in the import/export area by his lack of an appropriate visa.  Nevertheless, one might have expected the applicant to have more to show for it, and his efforts if there were any real long-term prospects of success. 

   SUBPARAGRAPH 1.20D(2)(a)(ii) - EXPANSION OF AUSTRALIAN TRADE

6. Guidelines which appear at R [Vol 2] pp 40 - 52 indicate that trade includes imports and exports.  See R [Vol 2] p 42.  I therefore take the reference to “trade” in subpar 1.20D(2)(a)(ii) to be to trade between Australian enterprises and overseas partners, and not trade within Australia.  Again, the applicant asserts that the Tribunal must have applied the wrong test by focussing on past performance.  There is, as far as I can see, no suggestion that the applicant proposes to expand its existing furniture retailing business or its café business beyond Australia.  The applicant rather relies upon re-entry into the import/export business.  The Tribunal observed that to date “… no import or export income (has been) generated …”.  This may not be completely accurate, but it is very near to the mark.  The Tribunal referred to an attempt to export juice which had produced no income.  It did not refer to the other occasional export transactions, but they were of little significance, given that there had been no such transactions since 2001.  Similarly, the Tribunal’s failure to refer to the small number of imports is of no significance.  Import/export activities had ceased.  Although the evidence is not precise on the point, it may be that this was as a result of Mr Hussain’s fraud or because the business had not been profitable.  In either event, there was no compelling reason for optimism.  Once again, the Tribunal looked to the past as a guide to the future.  It did not apply the wrong test. 

7. In dealing with this matter the Tribunal observed:

   No balance sheets or profit and loss reports have been provided to the Tribunal and a taxation return submitted indicated the review applicant earned a net profit of $1672 from the furniture business.

8. The documents referred to in par 8 of the affidavit were relevant to this issue.  The net profit for the 2000-2001 tax year was $1,672.  This was known to the Tribunal.  The figure for the 2001-2002 year was $1,881.70.  The applicant had total assets of $87,527.21 and total liabilities of $83,051.42.  The bulk of the assets were “inventories”, presumably stock-in-trade.  The vast bulk of the liabilities was said to be “current”.  The 2001-2002 tax return and the financial statements showed no significant change from the position disclosed by the 2000-2001 tax return.  It is fanciful to suggest that the additional documents could in any way have affected the outcome.

   SUBPARAGRAPH 1.20D(2)(a)(iii) – IMPROVEMENT OF AUSTRALIAN BUSINESS LINKS WITH INTERNATIONAL MARKETS

9. The Tribunal dealt with this matter in par 28.  It considered that as the only businesses being conducted by the applicant were the furniture shop and café, there was no indication of how its operation or the employment of Mr Hussain in that operation would improve Australian business links.  No doubt the applicant would claim that Mr Hussain’s experience in trade is invaluable.  It seems, however, that the Tribunal was not satisfied that any such experience was to be exploited so as to improve Australian business links.  Once again, there is no reason to believe that the Tribunal addressed the wrong question.  There is no reason to believe that documents identified in par 8 of the affidavit could have affected the outcome.

   SUBPARAGRAPH 1.20D(2)(a)(iv) – COMPETITIVENESS WITHIN SECTORS OF THE AUSTRALIAN ECONOMY

10. The Tribunal was of the view that there was no evidence to support reliance upon this outcome.  That seems to be correct.  In any event, there is no reason to believe that the Tribunal addressed the wrong question.  The matter was not one which could have been affected by the material referred to in par 8 of Mr Hussain’s affidavit.

    SUBPARAGRAPH 1.20D(2)(c)(i) – WILL INTRODUCE TO, OR UTILISE OR CREATE IN, AUSTRALIA NEW OR IMPROVED TECHNOLOGY OR BUSINESS SKILLS

11. The Tribunal considered (at par 30) that the applicant had not relied on this criterion.  Although Mr Hussain claims substantial experience in import/export and trade generally, and specialized, but vaguely described skills in connection with plastics, I also do not understand the applicant to claim to have satisfied this criterion.  In any event, there is nothing to indicate that any of these skills were new or improved.

    SUBPARAGRAPH 1.20D(2)(c)(ii) – SATISFACTORY RECORD OF, OR A DEMONSTRATED COMMITMENT TOWARDS, TRAINING AUSTRALIAN CITIZENS AND PERMANENT RESIDENTS IN ITS BUSINESS OPERATIONS

12. In its reasons at par 31, the Tribunal referred to the draft training plan for the financial year 2002-2003 and to a copy of a certificate of appreciation dated 24 May 2002 from Skillz Business Development Initiative.  This was said to have been awarded for participation in a new apprenticeship/traineeship programme.  The certificate appears at R [Vol 2] p 75.  It is preceded by documents concerning a wage subsidy arrangement entered into with respect to an employee called Gavin Curtis.  He appears to have been an apprentice.  Mr Hussain said in his statutory declaration that the applicant had employed him for two weeks and that he proved to be totally unsuitable.  Given the applicant’s limited record as an employer, little can be said concerning its record in staff training.  Some reliance was placed upon the employment of a disabled person or disabled persons in the café but again, any such employment appears to have been short-term.  There was really no evidence of any past staff training.  As to the future, the only commitment appears to have been the fairly broad and generalized training plan.  It did not identify the persons who would conduct the training, the persons to be trained, the detailed subject matter of the training, methods to be used or the amount of the budget.  There is again no reason to believe that the Tribunal addressed the wrong question.  This is not an area in which the documents referred to in par 8 of the affidavit could have had any relevance.

    SUBPARAGRAPH 1.20D(2)(f)

13. As outlined above, this subparagraph concerned the applicant’s capacity to guarantee debts due by Mr Hussain or his family to the Commonwealth, amounts owing for their medical and hospital expenses and the cost of repatriation, presumably in the event that his visa is terminated or expires.  This was very much a matter of financial resources.  In dealing with this matter at par 33 of the reasons, the Tribunal observed that the applicant had not provided any financial statements “… to show that it is able to comply with the undertakings in relation to its financial responsibility … .  Only one taxation return has been provided indicating a net profit of $1672. No balance sheets or profit and loss statements have been provided to the Tribunal”.  The documents referred to in par 8 of Mr Hussain’s affidavit were relevant to this issue but could not have changed the outcome.  As observed above, they showed a slightly increased net profit and a very small excess of assets over liabilities.  Once again there is no reason to believe that the Tribunal addressed the wrong question. 

    ORDERS

14. The application should be dismissed with costs, including reserved costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             22 August 2003

Counsel for the Applicant:	Mr A Howen
Solicitor for the Applicant:	Ward Maxwell & Co
Counsel for the Respondent:	Ms V Hartstein
Solicitor for the Respondent:	Clayton Utz
Dates of Hearing:	29 May 2003, 12 June 2003 and 30 July 2003
Date of Judgment:	22 August 2003