Minister for Immigration v Zhao
[2008] FMCA 1683
•22 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v ZHAO & ORS | [2008] FMCA 1683 |
| MIGRATION – VISA – Established Business (Residence) (Class BH) visa – whether the Tribunal misinterpreted clause 845.214 of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal unlawfully fettered itself in the purported exercise of its jurisdiction – whether the Tribunal made a decision in the absence of a jurisdictional fact – jurisdictional error – certiorari and mandamus. |
| Migration Act 1958 (Cth), ss.65, 474 Migration Regulations 1994 (Cth), cl.845.214 of Schedule 2 Federal Magistrates Court Rules 2001 r.13.03A(e) |
| Ibrahim v Minister for Immigration and Citizenship [2008] FCA 503 Ibrahim & Ors v Minister for Immigration & Anor [2007] FMCA 1234 |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | YONG ZHAO |
| Second Respondent: | HUAIMEI TAN |
| Third Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2007 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 November 2008 |
| Date of Last Submission: | 3 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Potts |
| Solicitors for the Applicant: | Clayton Utz |
| First and Second Respondents: | No Appearance |
| Solicitors for the Third Respondents: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue directed to the Migration Review Tribunal, quashing the decision of the Tribunal made on 7 July 2008.
That a writ of mandamus issue, directed to the Migration Review Tribunal, requiring the Tribunal to determine according to law the application made on 12 November 2007 by the first and second respondents for review of the decision of the delegate of the applicant Minister for Immigration and Citizenship to refuse to grant to the first and second respondents Business Skills – Established Business (Residence) (Class BH) visas.
The parties are to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2007 of 2008
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| YONG ZHAO |
First Respondent
| HUAIMEI TAN |
Second Respondent
| MIGRGATION REVIEW TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
Application
The applicant, the Minister for Immigration and Citizenship, asks the Court to review a decision of the Migration Review Tribunal that was signed on 27th June and handed down on 7th July 2008. The Tribunal remitted the applications of the first and second respondents to this application for Business Skills – Established Business (Residence) (Class BH) visas for reconsideration, with the direction that the first respondent met the criteria for a Subclass 845 (Established Business in Australia) visa, namely cl.845.214 of Schedule 2 to the Regulations.
The Minister seeks the issue of:
(1)A writ of certiorari directed to the third respondent, the Migration Review Tribunal, quashing the Tribunal’s decision; and
(2)A writ of mandamus directed to the Tribunal, requiring the Tribunal to determine according to law the application made on 12th November 2007 by the first and second respondents for review of the decision of the Minister’s delegate to refuse to grant them Business Skills (Established Business) (Residence) (Class BH) visas.
Background
The visa applicants applied for Business Skills – Established Business (Residence) (Class BH) visas on 9th September 2005. The visa concerned is an onshore permanent visa for temporary residents who have an ownership interest in one or more established businesses in Australia. Class BH contains two subclasses, Subclass 845 (Established Business in Australia) and Subclass 846 (State/Territory sponsored Regional Established Business in Australia).
A delegate of the Minister refused to grant the visas on 22nd October 2007 for the reason that the first respondent did not satisfy cl. 845.214 of Schedule 2 to the Migration Regulations 1994. The first and second respondents applied to the Migration Review Tribunal on 12th November 2007 for review of the delegate’s decision.
Application to the Migration Review Tribunal
The Tribunal invited the first and second respondents to attend a hearing on 11th March 2008 to give evidence and present arguments in support of their case. The first applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal stated that the issue in the case was:
…whether the first named applicant[1] meets cl. 845.214 in that the total value of the net assets in Australia of the applicant, or the applicant and the applicant’s spouse together is, and had been throughout the period of 12 months immediately preceding the making of the application on 9 September 2005, at least AUD250,000.[2]
[1] i.e. the first respondent in this case
[2] See Court Book at 936
The first applicant submitted that the total net assets of himself and his wife for the period of 12 months immediately preceding the making of the application on 9th September 2005 amounted to $400, 186.01. He produced a St George bank statement dated 14th April 2004 showing inward payments of $199,983 and $199,980 on 8th and 14th April 2004, claiming that these funds were the family’s savings from having owned a restaurant and from his employment. The Tribunal indicated that it shared the concerns of the delegate as to the source of funds transferred from overseas and had, at the hearing, canvassed the inconsistencies in the first visa applicant’s evidence as to the source of the funds and the limited documentation as to the source.
The Tribunal then went on to consider the decision of Lander J in Ibrahim v Minister for Immigration and Citizenship[3] at [44]-[50] and concluded:
When the Tribunal applies Lander J’s reasoning as set out above to the available evidence in this case, it is satisfied that the net assets of the first named applicant and his wife for the relevant periods were as detailed above. Although the Tribunal has concerns as to the source of the funds transferred into the bank account for K-Achieve International Pty Ltd, the financial statements and other evidence as indicated above clearly disclose that the net assets of the first named applicant and his wife had been throughout the period of 12 months immediately preceding the making of the application on 9 September 2005, at least AUD250,000.[4]
[3] [2008] FCA 503
[4] Court Book at 941
As the Tribunal found that the net assets of the visa applicants had been throughout the period of 12 months immediately preceding the making of the application on 9 September 2005 at least AUD250,000, it found that the first visa applicant satisfied the requirements of cl.845.214 of Schedule 2 to the Regulations. The Tribunal remitted the applications for the visas for reconsideration, with the direction that the first named visa applicant met the criterion for a Subclass 845 (Established Business in Australia) visa, namely cl.845.214 of Schedule 2 to the Regulations.
Application for Judicial Review
The Minister for Immigration and Citizenship commenced proceedings by filing an application and affidavit in support on 4th August 2008. The third respondent, the Migration Review Tribunal, was separately represented and filed a submitting appearance on 14th August. The third respondent was excused from any further attendance.
The first and second respondents did not attend the first court date on 1st September 2008, nor on the adjourned date of 15th September, nor on the final hearing date of 3rd November 2008. Counsel for the Minister, Mr Potts, tendered affidavits of service sworn on 27th and 28th August 2008, showing that personal service had been effected on both the first and second respondents. I decided to proceed with the hearing generally under the provisions of Rule 13.03A(e).
Grounds
The Minister relies on the following grounds of review:
(1)The Migration Review Tribunal misinterpreted clause 845.214 of Schedule 2 to the Migration Regulations 1994.
(2)The Tribunal failed to take into account a relevant consideration.
(3)The Tribunal unlawfully fettered itself in the purported exercise of its jurisdiction.
(4)The Tribunal made a decision in the absence of a jurisdictional fact.
Particulars
Particulars common to all four grounds are that:
a)Clause 845.214 of Schedule 2 to the Regulations sets out an essential criterion for the grant of a Business Skills – Established Business (Residence) (Class BH) visa, Subclass 845 (Established Business in Australia), namely that the total value of the net assets in Australia of the visa applicant, or the visa applicant and the visa applicant’s spouse together is, and has been throughout the period of 12 months immediately preceding the making of the visa application, at least AUD250,000.
b)Before the Tribunal, the first and second respondents claimed that their assets included the balance of a loan of AUD399,963 from the first respondent to a company of which they were the only shareholders.
c)The Tribunal held concerns that the first respondent may not be the true source of the funds and, accordingly, that the assets of the first and second respondents may not include the balance of the loan of the funds.
d)On the basis of the decision in Ibrahim v Minister for Immigration and Citizenship[5], the Tribunal found that it was required to disregard these concerns.
e)The Tribunal erred in finding that the decision in Ibrahim v Minister for Immigration and Citizenship required it to disregard these concerns.
[5] supra
As to Ground 1, it is also a particular that by disregarding the concerns referred to in (c) to (e) above, the Tribunal misinterpreted the meaning of the net assets in Australia of the visa applicant, or the visa applicant and the visa applicant’s spouse together, for the purposes of Clause 845.214 of Schedule 2 to the Regulations.
As to Ground 2, it is also a particular that by disregarding the concerns referred to in (c) to (e) above, the Tribunal failed to consider whether the first respondent was the source of the funds, or whether the assets of the first and second respondents included the balance of the loan of the funds.
As to Ground 3, it is also a particular that by disregarding the concerns referred to in (c) to (e) above, the Tribunal unlawfully fettered itself in its attempt to satisfy yourself whether the first and second respondents met the criterion prescribed by clause 845.214 of Schedule 2 to the Regulations.
As to Ground 4, it is also a particular that by disregarding the concerns referred to in (c) to (e) above, the Tribunal failed to reach the state of satisfaction required by section 65 of the Migration Act 1958 (Cth) for the exercise of its jurisdiction.
Submission
Counsel for the Minister, Mr Potts, submitted that the Tribunal erred in its understanding of the effect of Lander J’s decision in Ibrahim, and this misunderstanding caused it to fall into jurisdictional error in its consideration of whether or not Mr Zhao, the first respondent, met the requirements of cl. 845.214.
He submitted that, in Ibrahim, Lander J was called on to consider the operation of cl. 845.215 of Schedule 2, rather than cl. 845.214, which is the subject matter of the present case. He further submitted that the references by his Honour to cl 845.214 in [43] and [44] are in fact typographical errors, relying on the discussion in [44] about the amount of “AUD$100,000”, when the relevant amount in cl. 845.214 is AUD250,000.
It was further submitted that the ratio decidendi of Lander J’s decision is:
a)the first question was the ownership of the business, and the evidence was all one way in that regard; and
b)whether or not there were debts owing by the business to Mr Nassif and Mr Jarjo, which were the funds the source of the Tribunal’s concern, the value of Mr Ibrahim’s net assets would have exceeded AUD100,000 in any event.
It was also formally submitted that Ibrahim was wrongly decided. However, the correctness or otherwise of the decision is not a matter for consideration by this Court, because Ibrahim v Minister for Immigration and Citizenship is a decision on appeal from the Federal Magistrates Court, Ibrahim & Ors v Minister for Immigration[6], and it is therefore binding on this Court.
[6] [2007] FMCA 1234
Conclusions
It is the Minister’s submission that the Tribunal erred in its understanding of the effect of Lander J’s decision in Ibrahim, and that misunderstanding caused it to fall into jurisdictional error in its consideration of whether or not the first respondent met the requirements of cl. 845.214. I am satisfied that the references to cl 845.214 in [43] and [44] are indeed typographical errors, as Mr Potts submitted, and the correct reference should be cl 845.215. In reading the decision as a whole, it is clear that the case before his Honour concerned cl. 845.215:
[4] The criteria which must be established to satisfy the grant of a subclass 845 visa is contained in cl 845 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, for the purpose of this application, cl 845.215 provided:
The total value of the net assets owned by the applicant, or by the applicant and the applicant’s spouse together, in the main business or main businesses in Australia:
a)is; and
b)has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD$100,000.[7]
[7] [2008] FCA 503 at [4]
In confirmation, the decision the subject of the appeal related to cl. 845.215:
[4] The critical criterion that the applicant had to establish was visa condition 845.215, which was as follows:
The total value of the net assets owned by the applicant, or by the applicant and the applicant’s spouse together, in the main businesses in Australia:
(a)is; and
(b)has been throughout the period of 12 months preceding the making of the application; at least AUD100,000.[8]
[8] [2007] FMCA 1234 at [4]
There is no doubt that Lander J’s decision related to cl 845.215 and that the reference to cl. 845.214 at [44] is a typographical error.
I am satisfied that the Minister is correct in his contention that the decision in Ibrahim, properly understood, had nothing to say to the Tribunal about the manner in which it needed to consider the inconsistencies in the evidence of the first and second respondents about the source of funds which they claimed should be counted towards the value of their net assets in Australia. The Tribunal in this case had to be satisfied that the first and second respondents had, together, net assets in Australia worth AUD250,000.
It was critical to the first and second respondent that the Tribunal should accept that they were personally owed the sums of $365,536.00 as at 30th June 2004 and $374,260.00 as at 30th June 2005, as they claimed in the calculation of net assets in Australia, which can be found at page 915 of the Court Book. The crucial matter to be established was whether those funds did in fact belong to the first and second respondents, rather than some other person. Clearly, to be the net assets of the first and second respondents, the funds needed to be owned by them.
The Tribunal had doubts, referring to the delegate’s concerns as to the source of the funds transferred from overseas. However, it went on to state:
However, Lander J in Ibrahim considered this issue and stated the following:
44Because of the wording of paragraph (b) of cl. 845.214, the inquiry to be carried out by the Tribunal needed to address these matters. First, whether the applicant alone or together with his spouse, owned assets in a business in Australia. Secondly, whether at the date of the application the applicant alone or together with his spouse owned net assets of a value of at least AUD$100,000. Thirdly, whether the applicant alone, or the applicant together with his spouse had owned assets of that value in businesses in Australia throughout the period 12 months immediately preceding the making of the application.
45In this case, there was only one business into which an inquiry needed to be made. That was the business which had been carried on under the business name, REI Construction, from 7 October 2003 until some time prior to 30 September 2004 and the business carried on by REI Construction Pty Ltd after that time until 7 October 2004.
46The evidence adduced by the appellant was the appellant was the sole owner of the business and the sole shareholder in the company. In those circumstances, no inquiry needed to be made of the applicant’s spouse’s holding in the business. There was no suggestion the appellant or his spouse owned any assets in any other business.
47The appellant contended that the Tribunal distracted itself from its inquiry by its consideration into the veracity of the explanations of the source of the funds used in the business and did not answer the questions which it was bound to answer in the exercise of its jurisdiction.
48That submission must be accepted. Whilst the Tribunal was entitled to take the view that it was not satisfied as to the quality of the evidence adduced by the appellant, there was no suggestion in any of the evidence that anyone else apart from the appellant was the owner of the business or later the sole shareholder in the company. The evidence in relation to the injection of funds was contradictory but the first question to be addressed was whether the appellant was the owner of the business and later the sole shareholder in the company. That evidence was all to the same effect. Once that question was addressed the inquiry which needed to be made was as to whether the net assets of the business, and later the company, was throughout the period of 12 months in excess of AUD$100,000.
49The balance sheet which was presented by the appellant for the period 1 October 2003 to 30 September 2004 supported a finding that the net assets exceeded $100,000 throughout the whole period. That would have been so whether or not there were debts owing by the business, if in fact there were, to either Mr Nassif or Mr Jarjo during the relevant period. That follows, it seems to me, because of the net assets which the business’ balance sheet disclosed as at 1 October 2003 and the net assets disclosed in the company’s balance sheet as at 30 September 2004.
50In my opinion, the appellant was right to contend that the Tribunal did not address the question which was posed and therefore fell into jurisdictional error. The Tribunal did not address first question whether the appellant owned assets in a business in Australia.
When the Tribunal applies Lander J’s reasoning as set out above to the available evidence in this case, it is satisfied that the net assets of the first named applicant and his wife for the relevant periods were as detailed above. Although the Tribunal has concerns as to the source of the funds transferred into the bank account for K-Achieve International Pty Ltd, the financial statements and other evidence as indicated above clearly disclose that the net assets of the first named applicant and his wife had been throughout the period of 12 months immediately preceding the making of the application on 9 September 2005, at least AUD250,000.[9]
[9] Court Book 940-941
Counsel for the Minister has submitted, and I believe correctly, that there was nothing in his Honour’s reasoning to be applied in the circumstances of this case. No principle of law derived from his Honour’s reasoning had anything to say which could lawfully direct the Tribunal in the inquiry it was required to conduct. The Tribunal disregarded its concerns about the source of the funds because it erroneously considered that there was a principle of law in Ibrahim which obliged it do so.
I am satisfied that the Tribunal misunderstood the decision in Ibrahim, and this misunderstanding led it into jurisdictional error. The Tribunal failed to have regard to the factual difficulty of attributing the funds concerned as funds owned by the applicant and, as counsel for the Minister correctly submitted, by closing its mind to that inquiry, The Tribunal fell into jurisdictional error by:
a)misinterpreting and misapplying cl. 845.214 of Schedule 2 to the Migration Regulations (Ground 1);
b)failing to take relevant considerations into account (Ground 2);
c)unlawfully fettering itself in the purported exercise of its jurisdiction, by applying a limitation on itself that did not exist as a matter of law (Ground 3); and
d)failing to satisfy itself, as it was required to do by s. 65 of the Migration Act, that the visa applicants, the first and second respondents to this application, satisfied cl. 845.214.
As jurisdictional error has been made out, it follows that relief should be granted in the nature of certiorari and mandamus.
This is not a case where the Minister is seeking costs. Counsel for the Minister expressly put to the Court that the Minister was not seeking costs, and the first and second respondents have not taken any active part in the proceedings. The parties should pay their own costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 22 December 2008
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