Qureshi v Minister for Immigration - [2005] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QURESHI v MINISTER FOR IMMIGRATION

[2005] FMCA 494

MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error.

Migration Act 1958

MIEA v Wu Shan Liang (1996) 185 CLR 259
F. Lukac v The Minister [2004] FCA 1641

Applicant:

QURESHI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2039 of 2003

Judgment of:

Barnes FM

Hearing date:

6 April 2005

Delivered at:

Sydney

Delivered on:

6 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2039 of 2003

QURESHI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal made on 10 September 2003 affirming a decision of a delegate of the respondent, finding that the visa applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa. The applicant had applied for the visa on 6 June 1997. A delegate of the respondent initially made a decision to refuse to grant the visa on 27 October 1997. The Tribunal reasons for decision record that this decision was reversed due to an administrative error and a fresh decision to refuse to grant the visa was made on 24 September 2001. The applicant sought review by the Tribunal on 19 October 2001 and it is the Tribunal decision in response to that application that is in issue.
Prior to the Tribunal hearing the Tribunal wrote to the applicant on

7 May 2003 pursuant to section 359A of the Migration Act 1958 seeking comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The Tribunal held a hearing which the applicant attended on 8 July 2003.
The relevant visa Subclass is Subclass 457 (Business (Long Stay)). In his application for the visa the applicant claimed to satisfy the relevant criteria in subclause 457.223(8) of the Migration Regulations on the basis that he was a representative of a supplier of services. The Tribunal reasons for decision record that at the hearing the applicant indicated that he did not wish to be considered as a supplier of services. The Tribunal then allowed him time to clarify, through his migration agent, the basis on which the application was to be considered. The migration agent sought an extension of time to provide documentation. An extension of time was granted and an extensive submission was provided to the Tribunal dated 29 July 2003 and received on 1 August 2003. In that submission the applicant claimed that he wished to be considered against the criteria for a Subclass 457 visa on independent executive grounds.
One of the criterion for an independent executive (in paragraph 457.223(7)(d) is that:
(d) the applicant has net assets of:
(i)not less than $A250,000, or
(ii)a lesser amount that the Minister considers to be adequate;
to conduct or establish the business.
In the applicant’s submission to the Tribunal of 29 July 2003 this aspect of the applicable criteria was addressed in one paragraph by a statement that:
The applicant's buyer/sponsor/financier in Pakistan is ready to provide more than $A250,000 for his business activities in Australia, (Document attached).
The reference to an attachment appears to be a reference to an attached affidavit from the managing director of a company in Pakistan which relevantly stated that the applicant was a co-partner in the business authorised to establish the office and run the business and that the company would ‘compensate’ him to $US200,000 if required.
The Tribunal recorded in its reasons for its decision that the applicant had submitted evidence that he was conducting a business of exporting used tyres from Australia to Pakistan, where they were bought and imported by his family company. He was now seeking to develop the export market to other countries as changes in the law had restricted imports to Pakistan. The Tribunal found that the business was sporadic and that the applicant had not submitted a detailed business plan or other information as to how he intended to develop it apart from evidence of some inquiries. There was also evidence that the applicant was working full time in another job unrelated to the business.
The Tribunal found that although the applicant claimed he began the business in June 2001 he could produce no financial statements or tax returns as evidence of its financial status or the volume of its business. He had produced one business activity statement for one quarter (January to March 2003) showing export sales of over $12,000. The Tribunal noted the requirements of paragraph (d) of subclause 457.223(7) and that the applicant had submitted a statement from the managing director of the company in Pakistan that he was a co-owner of the business and that the company would compensate him up to $US200,000. It also noted that evidence of the company's business dealings was submitted.
However, the Tribunal also had regard to other evidence before it of an undated facsimile statement in which the applicant was described by the company in Pakistan as being an employee of the business who was authorised to form a company in Australia. This appears to be a reference to a facsimile received by the Tribunal on 4 July 2003 which certified that the applicant was working as a marketing manager and an employee of the company.
The applicant also submitted a bank statement for the business Qureshi Trading Australia showing a balance on 1 November 2002 of $3,438 but no other evidence of his personal assets or liabilities. The Tribunal was not satisfied that this bank statement met the requirement that the applicant have net assets as described in paragraph 457.223(7)(d). It relevantly found that the applicant had not demonstrated that he had net assets of the required amount but had submitted evidence that funds may be available either to him as a loan or an advance. He had not demonstrated that the assets were his or clarified his relationship with the business that was proposing to lend him the funds. He had not satisfied the Tribunal that the funds were available to conduct or establish the business. The Tribunal accepted that the business had begun operating but found that there was no information before the Tribunal as to the investment capital required to establish it or conduct it. It found that the applicant did not meet the criteria in subclause 457.223(7) as it was not satisfied he had net assets of $250,000 or a lesser amount it considered adequate to conduct or establish the business.
Although the applicant had indicated that he did not wish to be considered as a supplier of services, the Tribunal did, in fact, consider that possibility and also the other grounds for the grant of a Subclass 457 or Subclass 456 visa. As the applicant did not meet the criteria, the Tribunal confirmed the decision under review.
The applicant sought review of that decision by application filed in this court on 1 October 2003. He relies on an amended application filed on 1 July 2004 which was accompanied by an affidavit which repeated his claims to be entitled to a subclass 457 visa and to meet the criteria. He also filed written submissions.
The first ground in the amended application is that the Tribunal ‘failed to follow proper procedure as per Migration Act’. There is no particularisation of this claim either in the particulars or in the written submission. Nor was the applicant able to provide any detail today. There is nothing in the material before me to suggest that the Tribunal failed to follow the procedures under the Migration Act 1958 (C’th). In that respect I note that the applicant was given an appropriate notice under section 359A of the Migration Act, he was invited to and did attend a hearing and, indeed, insofar as the written submissions also express his claim in terms of a lack of procedural fairness, it is notable that when his adviser sought an extension of time this was granted and the Tribunal addressed the material provided by the applicant and his adviser in support of his claims.
There is nothing in the material before me to establish either that the Tribunal failed to follow proper procedures or that it denied the applicant procedural fairness. Insofar as this claim is based on the contention that the Tribunal failed to exercise its discretion to find that the applicant met the criteria, this takes issue with the merits of the Tribunal decision and does not establish a jurisdictional error: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272.
The second ground relied on was that the Tribunal ‘failed to exercise its discretion as per Procedures Advice Manual 3 (PAM 3), MSI and relevant legislation that “I meet all the relevant legislation in relation to obtain my Business Temporary Entry Visa”’. Again, it is not clear what is meant by this ground. The Tribunal's decision turned on whether it was satisfied that the applicant met the criteria for a representative of a supplier of services within subclause 457.223(8) or for an independent executive within subclause 457.223(7), in particular the criteria in paragraph (d). The Tribunal's conclusion that the applicant did not satisfy either of the alternative requirements of paragraph (d) were open to it for the reasons that it gave. It considered the alternative methods of satisfying paragraph 457.223(7)(d). It addressed the applicant’s claims and evidence about his assets and the prospect of funds from Pakistan. No error is apparent in the manner in which it determined whether the applicant met paragraph d(i) or in its assessment under paragraph d(ii) of whether it was satisfied that he had net assets of an amount it considered adequate to conduct or establish the business. The requirements of each of the paragraphs of subclause 457.223(7) are cumulative and having found that the applicant did not meet the criteria in paragraph (d) it was not necessary for the Tribunal to go on to address the other paragraphs of that subclause as appears to be contended by the applicant.
In that respect his claim that the Tribunal had ignored the business activities he had which had been growing significantly in recent times does not establish jurisdictional error. The Tribunal properly addressed the information that the applicant provided in relation to his financial affairs and those of the business in considering whether he had net assets of $250,000 or adequate net assets. It noted in particular the limited financial information provided in relation to ‘the business’ and on his own behalf, (cf F. Lukac v The Minister [2004] FCA 1641). The ground in paragraph 2 of the amended application does not establish any jurisdictional error.
Nor is there anything in the Tribunal decision to suggest that it asked the wrong question in applying the relevant criteria or otherwise made an error amounting to jurisdictional error is contended.
The third ground is that ‘The Tribunal ignores my financial guarantor's undertaking to pay and support me to establish a business in Australia.’ This ground does not establish jurisdictional error. The Tribunal did not ignore this claim. It referred to the applicant’s claim that his sponsor/financier in Pakistan was ready to provide the required $250,000 for the visa applicant and to the statement to that effect. The Tribunal recognised that this undertaking was to ‘compensate him’. It also had regard to all of the other information before it but was not satisfied, for the reasons that it gave, that the evidence before it established that the visa applicant had net assets as required. In particular, the visa applicant had not demonstrated that he had net assets. Rather he had submitted evidence that funds may be available to him either as a loan or an advance. He had had not clarified his relationship with the business in Pakistan (in relation to which there was conflicting information). Nor had he satisfied the Tribunal that funds were available to conduct or establish the business or even what funds were required to conduct it. This is not a case in which the applicant produced adequate financial statements or tax returns as evidence of the financial status of the business or of funds available to or required to conduct the business. No error is established in the manner contended.
I have touched on the particulars in the amended application and repeat, as I mentioned above, that those particulars that address other criteria in subclause 457.223(7) do not establish a jurisdictional error, as the Tribunal finding that paragraph 457.223(7)(d) was not met meant that the application could not succeed.
The written submissions filed by the applicant express his grounds somewhat differently. I have addressed the question of procedural fairness. No lack of procedural fairness is apparent. There is no error of law apparent in the Tribunal reasons for decision. Nor is there anything in the material before me to support the unparticularised claim that the Tribunal failed to act in a bona fide manner, failed to exercise its power or misunderstood the applicable law.
As for the applicant's commitment to establishing his business in Australia, as I have indicated, he failed in his application because he did not satisfy the requirement that he have net assets as required by paragraph 457.223(7)(d). It was therefore not necessary for the Tribunal to address paragraph 457.223(7)(b) which requires a genuine and realistic commitment from the applicant.
The amended application and written submissions of the applicant do not establish jurisdictional error. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he pay costs in the sum of $4500. He claims that this amount is too much and that he is unable to pay it. There is nothing in the circumstances of this case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. In the light of the nature of this and other similar matters I consider that the amount sought is appropriate. The applicant’s claimed impecuniosity is not a reason for not awarding the costs sought by the respondent.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 April 2005