Nguyen v Minister for Immigration

[2015] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1351

Catchwords:
MIGRATION – Migration Review Tribunal – Business Skills (Residence) (Class DF) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal failed to consider assets claimed as “cash assets” and “stock” for the purpose of satisfying the business assets test – no jurisdictional error.

PRACTICE AND PROCEDURE – Application dismissed.

Legislation:
Migration Regulations 1994, Schedule 2, cl.892.212

Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557

First Applicant: HOANG SANG NGUYEN

Second Applicant: HOANG TRAN PHI NGUYEN

Third Applicant: TRAN PAI KHANH NGUYEN

Fourth Applicant: THI DAO LINH TRAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 375 of 2014

Judgment of: Judge Street

Hearing date: 19 May 2015

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Adelaide

Delivered on: 19 May 2015

REPRESENTATION

Counsel for the Applicant: Mr S. Ower

Counsel for the Respondent: Mr S. McDonald

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 375 of 2014

HOANG SANG NGUYEN

First Applicant

HOANG TRAN PHI NGUYEN

Second Applicant

TRAN PAI KHANH NGUYEN

Third Applicant

THI DAO LINH TRAN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 4 September 2014 affirming a decision of the delegate not to grant the applicant a Business Skills (Residence) (Class DF) visa. 

2. The applicants and the first respondent have proposed consent orders which are in the following terms:

   We consent, for the purposes of r13.04 of the Federal Circuit Court Rules 2001 (Cth), to the making of orders in the following terms:

   1. The application be allowed.

   2. A writ in the nature of certiorari issue to quash the decision of the Second Respondent made on 4 September 2014.

   3. A writ of mandamus issue to require the Second Respondent to conduct a review, under s 348 of the Migration Act 1958 (Cth), of the decision of the delegate of the First Respondent in accordance with law.

   4. First Respondent is to pay the Applicant’s costs fixed in the sum of $3,416.

3. At the time the matter was first advanced before the Court, there was a notation advanced in respect of the justification of the order, which was as follows:

   We say that the following matters justify the making of the proposed consent order:

   1. The Second Respondent failed to take into account a relevant consideration, namely the totality of the assets claimed by the Applicant to belong to his business in determining whether the Applicant met cl. 892.212(c)(i) of Sch 2 to the Migration Regulations 1994 (Cth).

4. The justification for the order now advanced is as follows:

   We say that the following matters justify the making of the proposed consent order:

   1. The Second Respondent committed jurisdictional error by asking the wrong question, or failing to take into account relevant material, in that it failed to address itself to all of the assets relied upon by the applicants and, in particular, failed to consider assets claimed as “cash assets” and “stock” for the purpose of satisfying the business assets test in cl.892.212(c)(i), and that the Court cannot be certain that it did not fall into the same error in relation to the requirement under cl.892.212(b).

5. Orders made by this Court are an exercise of judicial power of the Commonwealth, and it’s necessary for the Court to be satisfied that consent orders are appropriate, see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557.

6. The visa applicant applied for the visa on 6 December 2012 and the delegate refused to grant the visa on 12 February 2014.  The applicants applied to the Tribunal for a review on 17 February 2014. 

7. Relevantly, in relation to the grant of the visa, the regulations provided:

   Clause 892.212

   Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

   (a)  in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

   (i)  provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and

   (ii)  provided those hours of employment to an employee or employees, who:

   (A) were not the applicant or a member of the family unit of the applicant; and

   (B) were Australian citizens, Australian permanent residents or New Zealand passport holders;

   (b) the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

   (i) have a net value of at least AUD250 000; and

   (ii) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the applicant is made; and 

8. That regulation required satisfaction of two of the requirements identified. It was common ground that the requirement under cl.892.212(a) of Schedule 2 to Migration Regulations 1994 was not satisfied.  It was in these circumstances where the applicants had to meet the requirements of the two requirements in order to obtain the grant of a visa that the application was dealt with initially by the delegate.

9. The delegate identified, in relation to meeting the requirements of cl.892.212(b) that there had been considered both the combined assets and personal assets of the applicant and his spouse.  The delegate said:

   In assessing whether the applicant meets regulations cl.892.212(b) I have considered the combined business and personal assets of the applicant and his spouse.

   One of the items provided in the application as evidence of assets was a balance sheet for Sang H Nguyen trading as Quick and Friendly Super Deli, giving the value of assets on the nominated dates of 31 October 2011 and 31 October 2012. As the balance sheet was for the individual Sang H Nguyen it included both personal and business assets.

   As satisfactory evidence was not included in the application of the ownership, value and separation between personal and business assets a request for further information was sent on 30 August 2012. This request included, among other items, financials statements including profit and loss statements for the nominated dates, a statement of assets listing the personal and business assets separately, evidence of the value of the receivables listed on the balance sheet and evidence of ownership and fair market value valuations for the claimed jewellery.

   In response to this request the applicant provided new financial statements for Sang H Nguyen for the years ending 31 October 2011 and 31October2012, these statements included both the value of personal and business assets. For 31 October 2011 the financial statements claimed a combined net value of assets of $269,122.

   The applicant did not provide a statement listing the personal and business assets separately.

   The total claimed value of the applicant's net assets at 31 October 2011 included the value of both the "receivables" at $23,600 and the jewellery as part of "equipment" listed in the depreciation schedule with a value· of $5,688.

   As evidence of the $23,600 receivables the applicant provided a debtor statement and hand written cash receipts for loans to one person; Phong, Nguyen Tran Thanh, based on the evidence provided this appeared to be an unsecured personal loan. In a telephone conversation on 6 February 2014 the applicant confirmed that this was a loan to his nephew. This was not a debt owed to the business for services. or goods provided or a loan made by the business for business purposes, rather it was a personal loan to family.

   Under policy for a personal asset to be included it needs to be a tangible asset which you can show ownership of and which can also be readily converted into cash for business use and settlement in Australia. In relation to a private loan, with no formal legal loan agreement or repayment agreement, you cannot demonstrate your legal right to the funds, the value of the funds or that you would be readily able to recover the funds for your own use. Therefore the claimed personal amount of $23,600 cannot be included in the assessment and must be removed from the value of the net assets.

   In relation to the claimed jewellery the applicant has not provided any evidence of ownership or a fair market valuation as requested. The applicant stated that the jewellery was received as wedding gifts, however without any evidence of ownership or the value of the jewellery it cannot be included in the assessment and the claimed value of $5,688 at 31 October 2011 must be removed from the claimed net assets.

   With the value of the personal loan and jewellery removed the net value of your combined assets at 3l October 2011 is $239,834 which is less than the $250,000 required to meet regulation 892.212(b)

   On the basis of the above information l find that the applicant has not satisfied the requirements of regulation 892.2 l 2(b)

10. It was in those circumstances the delegate wasn’t satisfied that the criteria of cl.892.212(b) were satisfied.  The delegate did not to have to, in those circumstances, address the second requirement under cl.892.212(c). 

11. Before the Tribunal serious adverse credit findings were made in respect of the applicant, and relevantly that the applicant had fabricated a loan agreement.   The Tribunal clearly took into account the alleged business and personal assets:

    18. The applicant’s financial statement for the year ended October 2012 disclosed combined personal and business net assets of $269,112 for the period ending 31 October 2011 and $297,483 for the period ending 31 October 2012. In post hearing submissions at the applicant provided further undated table of assets claiming combined business and personal assets of $279,749.

12. This is not a case where it can be said that the Tribunal failed to have regard to the alleged current assets of $145,490.09 that appeared on pg.237 of the Application book, or that the Tribunal failed to take into account the alleged cash assets identified in the combined balance sheet that appeared at pg.181 with the notation pg.184 of the Court book.

13. The Tribunal was clearly alive to that material when it referred to:

    In the post-hearing submissions, the applicant provided a further undated table of assets claiming combined assets and personal assets of $279,749. 

    That document appeared at pg. 237.

14. The Tribunal carefully and properly addressed the dispositive issues in relation to the loan agreement and the alleged goodwill.  It was in these circumstances that the Tribunal expressed concern in respect of the cash transactions as follows:

    31. In post hearing submissions the Tribunal was provided with a schedule purporting to represent the amount and source of funds transferred from Vietnam to Australia in the period July 2009 to January 2012. The total amount of funds claimed to have been sent from Vietnam is $387,573. The total amount of funds claimed to have been sent from Vietnam is $387,573. The total amount of cash brought to Australia by family members and friends is about $136,573. The total amount of cash brought to Australia by family members and friends is about $136,800. The Tribunal accepts that it is common practice for individuals visiting Vietnam to bring back cash due to Vietnamese government restrictions, however, the Tribunal notes that none of the case transactions are supported by independent evidence.

15. Those cash funds were the subject of further concern expressed by the Tribunal, given the absence of credibility of the applicant:

    36. The Tribunal finds the applicant’s evidence about the source of cash funds and the loan agreement vague, inconsistent and lacking in credibility. The Tribunal finds the inconsistent evidence about the loan agreement to be significant and does not accept the loan agreement was a genuine contemporaneous document prepared on 5 November 2009. The Tribunal find that the loan agreement was created by the applicant in response to concerns raised by the delegate. The Tribunal raised these concerns with the applicant at the hearing. The Tribunal does not accept the applicant made a cash loan of $33,600 or any amount to his nephew. Consequently, the Tribunal finds that there is insufficient evidence to support the amount of $8,100 as a non-current personal asset in support of the visa application. The Tribunal has disregarded this amount when assessing the net value of the applicant’s personal assets for the purpose of cl.892.212(b).

16. Paragraph 36 was a finding adverse in relation to one of the necessary two cumulative requirements under cl.892.212(b).  There is no substance in the proposition on the material before the Court that there was a failure to have regard to relevant material, or that the Tribunal asked itself the wrong question, or that it failed to consider the alleged cash assets.  I am satisfied that there was no jurisdictional error in relation to the adverse finding in respect of cl.892.212(b). 

17. In relation to the requirements of cl.892.212(c), it was alleged that there was an error by the Tribunal in not specifying or fixing a value for the business assets.  Clause 892.212(c) did not require that task.  The Tribunal had to be satisfied that the business assets in Australia had a net value of at least $75,000 throughout the 12-month period ending immediately before the application is made.  The application was made on 6 December 2012.  The combined balance sheet was nothing more than an identification of the combined financial position at a particular date.  It was not the relevant date that the Tribunal was required to consider for the purpose of cl.892.212. 

18. It was in light of the findings made by the Tribunal as to concern in respect of the cash transactions and the credibility of the applicant, that the Tribunal turned to the dispositive issue in relation to cl.892.212(c)(i).  The Tribunal identified cogent reasons why the alleged goodwill value of $80,000 was of no substance.  The alleged modest profitability of the business had been calculated without taking into account wages. 

19. Leaving aside any concerns in relation to the acquisition of the business and the payment of the alleged goodwill, this was an intangible asset in respect of which the Tribunal carefully addressed that dispositive issue and made an adverse finding that there was insufficient evidence to support the claim the business had goodwill valued at $80,000 at the time the application was made.

20. The Tribunal’s reasons are to be read as a whole and without a keen eye for error.  And it cannot be suggested that the Tribunal was attributing any value to the goodwill.  It is in those circumstances that the Tribunal found that the requirements of cl.892.212(c)(i) were not met.

21. There is no substance in the proposition that the Tribunal asked itself the wrong question or failed to take into account relevant material in respect of the adverse finding under cl.892.212(c)(i).  Nor is there any substance in the proposition that it failed to consider and have regard to the alleged cash assets. 

22. This is a case where the Court is not satisfied that it is appropriate to make orders of the kind propounded by the parties, because the Court is not satisfied that there was any error by the Tribunal either in respect of the adverse finding under cl.892.212(b)(i) or cl.892.212(c)(i).   Nor is there any basis in any event to suggest that the adverse finding under cl.892.212(b)(i) could in any way be overcome in the present case, even if there were error made out in relation to cl.892.212(c)(i).

23. To the extent relevant, it would be futile to return the matter to the Tribunal in circumstances where it is clear that cl.892.212(b)(i) cannot be met, even if the Court were persuaded that there was an error under cl.892.212(c)(i).

24. In these circumstances, I am satisfied that it is not appropriate for the Court to make orders in the form propounded by the parties.  I am satisfied that there was no jurisdictional error by the Tribunal.  The application is dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 May 2015