Shahpari v Minister for Border Protection
[2016] FCCA 513
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAHPARI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 513 |
| Catchwords: MIGRATION – Application for review of a decision by the Administrative Appeals Tribunal not to grant the applicant a business skills residence visa – relevant business effecting extremely modest sales in the relevant period – whether business “actively operating” – whether the Administrative Appeals Tribunal applied correct test – factual issue, not a legal issue – whether the Administrative Appeals Tribunal acted illogically or unreasonably – no jurisdictional error found in any of the three grounds alleged – application dismissed. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 Migration Act 1958 (Cth), s.474 Migration Regulations 1994 (Cth), Sch.2, cls.890.211, 890.212 |
Professor S. A. de Smith (ed), Judicial Review of Administrative Action (Stevens & Sons, 4th ed, 1980)
| Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Kruger v Commonwealth of Australia (1997) 109 CLR 1 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| First Applicant: | NAHID SHAHPARI |
| Second Applicant: | ARTA BAFEKR |
| Third Applicant: | POPAK BAFEKR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 756 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 11 November 2015 |
| Date of Last Submission: | 11 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| Counsel for the first, second and third applicants: | Ms F. Chen |
| Solicitors for the first, second and third applicants: | Shimizu Kokusai Law Office |
| Counsel for the first respondent: | Mr S.T. Richardson |
| Solicitors for the first respondent: | Clayton Utz |
ORDERS
The amended application filed 3 November 2015 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 756 of 2015
| NAHID SHAHPARI |
First Applicant
| ARTA BAFEKR |
Second Applicant
| POPAK BAFEKR |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 30 November 2015, the applicants
Nahid Shahpari (“the first applicant”), Arta Bafekr (“the second applicant”) and Popak Bafekr (“the third applicant”) (collectively
“the applicants”) sought judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 30 July 2015.[1]
The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) made on
25 February 2014.[2] Pursuant to that decision, the delegate refused to grant a Business Skills (Residence) (class DF) Business Owner (Residence) (subclass 890) visa (“the visa”) to the applicants.
The applicants contended that the Tribunal’s decision was affected by jurisdictional error and that this Court should review it. The
second respondent, the Tribunal, entered a submitting appearance.
[1] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.8-13.
[2] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.417-421.
For the reasons that follow, in my judgment no jurisdictional error has been made out with the consequence that the application to this Court fails.
Background
For the most part, the background facts were not in dispute.
The principal issue was whether in the two years immediately before the making of the visa application, the first applicant had an interest in one or more actively operating main businesses for the purposes of cl.890.211 of Sch.2 to the MigrationRegulations 1994 (Cth)
(“the Regulations”). The delegate found against the first applicant in respect of her construction of that phrase. The Tribunal affirmed the delegate’s decision. The issue in this case is whether the decision of the Tribunal was attended by jurisdictional error.
The chronological setting of the dispute
At all relevant times, the applicants were citizens of the
Islamic Republic of Iran.
On 26 October 2012, the first applicant (as main applicant) applied for the visa to the Department of Immigration and Citizenship
(“the Department”). At all relevant times the second applicant was the first applicant’s husband and the third applicant was the first and second applicants’ daughter. The second and third applicants applied for the visa as secondary applicants. Each of the three applicants were taken to have made a valid application for the visa, a fact agreed between the parties.
Together with the visa application, the first applicant completed and provided to the Department a Business Skills profile: Business Owner (Residence) form.[3] That form recorded that the first applicant initially became involved as an owner or part owner of a business on
27 August 2010. On the same form the first applicant stated that the main business in which she held a 51% interest was a business named Karamadan Overseas Pty Ltd (“Karamadan”) with premises located at Mount Ommaney, Queensland. The first applicant recorded that she was a director of Karamadan and that the major activity of Karamadan was “Trading – Import/Export Investment”.[4]
[3] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.660-664.
[4] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at p.661.
On 31 October 2012, the Department wrote to the applicants acknowledging that the visa application was valid and that the Department had allocated a file number for the visa application, namely CLF2012/218604.[5]
[5] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.587-589.
On 6 December 2013, the Department wrote to the applicants requesting additional information regarding Karamadan’s business activities in the two years prior to the date on which the first applicant applied for the visa (being 26 October 2012).[6]
[6] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.577-585.
On 9 January 2014, the solicitors representing the applicants sent an email to the Department with various attached documents including business activity statements for Karamadan.[7]
[7] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.442-444 and 494-504.
The first applicant provided certain financial statements in response to the Department’s request. However, the information supplied did not cover a period that the Regulations stipulated had to be covered.
On 6 December 2013, the Department requested further information calling for financial details covering a 12-month period ending within three months of the date on which the visa application was filed.[8]
The request for additional information allowed the first applicant
28 days within which to respond. According to the delegate, that information was not supplied within the 28 days stipulated.
[8] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.577-585.
The delegate’s determination
On 25 February 2014, the department sent a letter to the first applicant with the delegate’s determination informing her that her visa application had been refused.[9]
[9] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.412-436.
On 7 March 2014, the first applicant applied to the Tribunal for a review of the decision of the delegate.[10]
[10] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.377-386.
On 13 July 2015, the Tribunal conducted a hearing at which the
first and second applicants appeared before the Tribunal and gave evidence.
The Tribunal’s determination
On 30 July 2015, the Tribunal handed down its decision affirming the delegate’s decision not to grant the applicants the visa.[11]
[11] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.8-13.
The application to this Court
On 21 August 2015, the applicants filed this proceeding seeking an order that the first respondent show cause why a remedy should not be granted seeking a review of the Tribunal’s decision.
Relevant statutory framework
To better understand the determinations of the delegate and the Tribunal, it is necessary to set out the regulations that governed the visa application:
890.211
(1)The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
(2) For each business to which subclause (1) applies:
(a) an Australian Business Number has been obtained; and
(b) all Business Activity Statements required by the Australian Taxation Office (the ATO ) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.
890.212
The assets of the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:
(a) have a net value of at least AUD100 000; and
(b) had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.[12]
[12] Migration Regulations 1994 (Cth), Sch.2, cls.890.211 and 890.212.
Of particular importance was cl.890.211(1) of Sch.2 of the Regulations. Relevantly paraphrased, that regulation required that the first applicant had and continued to have an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made. The applicants were required to satisfy that criteria at the time they made the visa application.
How the delegate approached the issue
The delegate’s reasons ran for five pages. In those reasons the delegate narrated the class of visa the applicants sought, the information that the delegate took into account, a summary and full text of the provisions of cl.890.212 of Sch.2 of the Regulations, and a synthesis of the evidence adduced by the applicants. In relation to the evidence considered by the delegate, the delegate set out a table taken from the form 1217 that the first applicant filed. On that table the delegate recorded -
a)the net assets of the business;
b)the total percentage of the business owned by the first and second applicants;
c)the ownership share of the first and second applicants in the business;
d)the balance of loans advanced to the business by the first and second applicants;
e)the balance of loans advanced to the first and second applicants;
f)the balance of loans advanced to finance the investment of the first and second applicants in the business; and
g)the net assets of each the first and second applicants.[13]
[13] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at p.419.
The delegate stated that the figures supplied by the applicants did not cover the relevant period so on 6 December 2013, the Department sought further financial information covering a 12-month period ending within three months of 26 October 2012, along with evidence of the value of the net business assets as at the two dates beginning and ending that period, such information to be supplied within 28 days of request.[14] The delegate stated that the first applicant failed to supply that information within the time stipulated. The delegate found that the first applicant did not have net business assets with a value of at least $100,000.00 throughout the 12 months ending immediately before the application for the visa was made and that therefore the applicant did not meet the requirements of cl.890.212(b) of Sch.2 of the Regulations.
[14] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at pp.577-585.
The delegate determined that the first applicant did not satisfy the criteria for the grant of the visa.
How the Tribunal approached the issue
Being dissatisfied with the delegate’s determination, the applicants applied to the Tribunal for a review of that determination. They gave evidence before the Tribunal on 13 July 2015. The Tribunal allowed the applicants to adduce further evidence on or before 20 July 2015.
By determination dated 30 July 2015, the Tribunal affirmed the delegate’s decision.
The Tribunal posed the correct question as the issue for its consideration in paragraph 6[15] of the Tribunal’s reasons - namely, whether the first applicant had an ownership interest in one or more actively operating main businesses in Australia in the two years immediately before the application for the visa was made.
[15] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, at p.9.
That enquiry was directed to cl.890.211 of Sch.2 of the Regulations. The Tribunal also addressed the specific phrases in the relevant regulations that applied to a consideration of the issue, namely the definition of ‘main business’, ‘ownership interest’, ‘direct and continuous involvement in the management of the business from day to day and in making decisions and affecting the overall direction and performance of the business’ and ‘qualifying business’.
The Tribunal applied the requirement of cl.890.211(1) of Sch.2 of the Regulations in the following manner. It held:
To meet the requirements of cl.890.211(1), Karamadan must be a qualifying business and the first named applicant must have actively operated Karamadan for at least 2 years immediately before the application is made. To meet the requirements of cl.890.211(2)(b) at the time of making the visa application, Karamadan must have: an ABN; submitted to the ATO all BAS required by the ATO and included those BAS in the application.[16]
[16] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, p.10 at para.10.
The Tribunal then posed, correctly in my judgment, the pertinent issue in the following terms:
On the basis of the ASIC documents provided to the delegate,
the Tribunal accepts the first named applicant has an ownership interest in and is a director of Karamadan and that Karamadan has an ABN. The question before the Tribunal is whether Karamadan was an actively operating business during the period 26 October 2010 to 26 October 2012. The evidence before the delegate was Karamadan undertook an initial shipment of saddles from Australia to Iran in 2009. The next recorded turnover is in the July – September quarter 2011 BAS.[17]
[17] Bundle of Relevant Documents filed by the first respondent on 29 September 2015, p.10 at para.11.
So far as its consideration of the issue of whether Karamadan was an actively operating main business during the period 26 October 2010 to 26 October 2012, the Tribunal found that the first applicant was not in Australia from 26 October 2010 to 24 August 2011 and that Karamadan recorded no sales in the BAS documents provided to the delegate until the July to September quarter of 2011 and then only a modest amount of $4,186.00 for that quarter. The Tribunal recognised that 10 saddles were shipped to Iran in 2009. The Tribunal accepted that the first and second applicants had made a genuine effort and had a genuine intent to operate a business.
The Tribunal said that the fact that Karamadan had not achieved any sales for the relevant business activity periods weighed heavily on the Tribunal’s assessment of whether Karamadan had an actively operating business prior to or during the period October 2010 to September 2011. The Tribunal stated the first applicant’s absence from Australia between 26 October 2010 and 24 August 2011 weighed against the applicants. The Tribunal held that the first applicant’s absence called into question, even if Karamadan did have an actively operating business from Australia, whether the first applicant had maintained direct and continuous involvement in the day to day management of the business and in making decisions affecting the overall direction and performance of the business in Australia.
The Tribunal found that for the period 26 October 2010 to around
July to September 2011, Karamadan was not actively operating a main business in Australia. The Tribunal said that such a finding was supported by the BAS statements of Karamadan showing zero sales for that period. The Tribunal further found that by reason of the fact that Karamadan was not actively operating for those months, it followed that the first applicant did not have an ownership interest in one or more actively operating main businesses in Australia in the two years immediately before the making of the visa application and therefore did not meet the requirements of cl.890.211 of Sch.2 of the Regulations. The Tribunal further held that as a Karamadan was not actively operating, it was unnecessary for the Tribunal to make findings about whether the first applicant maintained direct and continuous involvement in the management of Karamadan in Australia during the period she remained in Iran.
Asserted grounds of review of the Tribunal in this Court
The applicants contended that the Tribunal’s decision was attended by jurisdictional error.
The applicants alleged two grounds. First, they contended that the Tribunal wrongly interpreted and wrongly applied the words “actively operating” in cl.890.211 of Sch.2 of the Regulations. Second,
the applicants contended that the Tribunal illogically or irrationally concluded that Karamadan did not meet the requirements of cl.890.211 of Sch.2 of the Regulations in finding that Karamadan was not “actively operating” between October 2010 and the period between July and September 2011.
Jurisdictional error
Under the Migration Act1958 (Cth) (“the Act”), the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act and the Regulations made under it specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Migration Act 1958
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474,
a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealthof Australia[18] (“Plaintiff S157/2002”).
[18] (2003) 211 CLR 476 at [72].
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded as in law as being no decision at all.
So much was held by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[19]
[19] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[20] made holdings to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[20] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[21] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[22] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[23]
[21] (1995) 184 CLR 163.
[22] Craig v State of South Australia (1995) 184 CLR 163 at 177.
[23] Ibid.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the Tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[24]
[24] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[25]
[25] Ibid.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[26]
The majority (McHugh Gummow and Hayne JJ) applied that test in the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[27]
[26] Ibid.
[27] (2001) 206 CLR 323, 351 at [82].
These are illustrations only of the ambit of jurisdictional error.[28] As the High Court in Kirk v Industrial Relations Commission (NSW)[29] held,
it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[30] does not provide a rigid taxonomy of jurisdictional error.
[28] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[29] (2010) 239 CLR 531 at [71] and [73].
[30] (1995) 184 CLR 163.
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach adopted below involved a legally erroneous view as to what it was about which the Tribunal below needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu (“Eshetu”).[31]
[31] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the relevant decision was one authorised to be made rather than providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[32] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal affairs v
Peko-Wallsend Ltd[33] (“Peko-Wallsend”) and Attorney-General (NSW) v Quin[34] (“Quin”).[32] [2015] HCA 50 at [23].
[33] (1986) 162 CLR 24 at 41-42.
[34] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be,
a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v
Wu Shan Liang[35] as well as Plaintiff M64/2015.[36][35] (1996) 185 CLR 259.
[36] [2015] HCA 50.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[37] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[37] (1993) 43 FCR 280 at 287.
Jurisdictional error is sometimes claimed on the basis that the decision appealed against was so unreasonable that no reasonable tribunal, acting within jurisdiction and according to law, would have come to such conclusion. Unreasonableness on that basis has its origins in the UK decision of Associated Provincial Picture Houses Ltd v Wednesbury Corp.[38]
[38] [1948] 1 KB 223.
In Kruger v Commonwealth of Australia[39] (“Kruger”), Brennan J held that when a discretionary power is statutorily conferred, the power must be exercised reasonably because the legislature is taken to have intended that the discretion was to have been so exercised. In Eshetu,[40] Gummow J referred to the observations of Brennan J in Kruger, adding that Professor De Smith in his seminal text Judicial Review of Administrative Action[41] said that an authority failing to comply with the obligation to act reasonably acted unlawfully or ultra vires. Of course, the observations in Kruger and Eshetu were not the earliest statements of the principle. In Buck v Bavone,[42] the High Court held that a board, established under the Potato Marketing Act 1948 and having power to take certain action if certain specified matters were satisfied,
was required to act in good faith and that the board was not permitted to act “merely arbitrarily or capriciously”[43] and that “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”.[44]
[39] (1997) 109 CLR 1.
[40] (1999) 197 CLR 611.
[41] (4th ed, 1980).
[42] (1976) 9 ALR 481.
[43] (1976) 9 ALR 481 at 488.
[44] Ibid.
This ground of judicial review, on the ground of what is commonly described as ‘Wednesbury unreasonableness’,[45] is supported by authority at the highest level in an array of decisions of the High Court of Australia. They include Peko-Wallsend,[46] Norbis v Norbis,[47]
Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[48] Quin,[49] Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd.[50] That list is not exhaustive.
[45] [1948] 1 KB 223.
[46] (1986) 162 CLR 24.
[47] (1986) 161 CLR 513, at 540-541.
[48] (1989) 169 CLR 379 at 392 and 407-408.
[49] (1990) 170 CLR 1 at 45-46.
[50] (1994) 182 CLR 51 at 101.
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[51]
[51] See Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36;More recently, in Minister for Immigration and Citizenshipv SZMDS[52] (“SZMDS”), the High Court of Australia affirmed the observations of Brennan J in Quin[53] when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
[52] (2010) 240 CLR 611, 619 at [19].
[53] (1990) 170 CLR 1.
In SZMDS,[54] their Honours Crennan and Bell JJ addressed the question of the circumstances when a court might properly determine that a decision is illogical or irrational in circumstances where reasonable minds might differ on the point. Their Honours held that the test of illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made upon which the evidence is based.[55]
Their Honours further held that if probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of conclusions to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[54] (2010) 240 CLR 611.
[55] (2010) 240 CLR 611, 648 at [131].
Their Honours further held in SZMDS[56] that a decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion.
Their Honours also held that a decision might be said to be illogical or irrational if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[57]
[56] (2010) 240 CLR 611.
[57] (2010) 240 CLR 611, 650 at [135].
[58] [2015] HCA 51 at [48].
Most recently, Nettle J of the High Court of Australia said in
Wei v Minister for Immigration and Border Protection[58]that error of fact made in the exercise of jurisdiction is not ultra vires, citing Australian Broadcasting Tribunal v Bond.[59] On the facts of that case, Nettle J held that the basis of the cancellation of the relevant visa was the Minister’s delegate’s satisfaction of the applicant’s failure to comply with a condition of the visa, that being a question of fact.
[59] (1990) 170 CLR 321 at 355-356.
Having canvassed some of the more important legal principles applicable to this case, it is now necessary to turn to the parties’ submissions.
Submissions of the applicants
The applicants advanced three grounds for the contention that the Tribunal’s decision was affected by jurisdictional error. Let me take each in turn.
Ground one
On behalf of the applicants, it was contended that the Tribunal made a jurisdictional error by wrongly interpreting and applying the words “actively operating” as they appear in the Regulations.[60] Specifically, the applicants contended that the Tribunal erred in finding that Karamadan was not “actively operating” on the basis of the lack of any sales between October 2010 and July to September 2011. So it was said by the applicants, the Tribunal failed to properly undertake the task of interpreting the words “actively operating”.
[60] Migration Regulations 1994 (Cth), cl.890.211 of Sch.2.
Counsel for the applicants, Ms Chen, submitted that the phrase “actively operating” is not defined in the Regulations or in the Act.
Ms Chen submitted that the word ‘actively’ as an adverb described a state of action and that as a composite expression the phrase
“actively operating”arguably meant that the applicants had to be constantly or highly engaged with and progressing the main business by working or running the business. Ms Chen drew support from the decision of Li & Ors v Minister for Immigration and
Border Protection[61] (“Li”) where Migration Review Tribunal Member Mercer held that -[I]
n order for an enterprise to be a business, it needs some form of continuity and repetition over a reasonable period and with a permanent character. It follows that the words
‘actively operating’ in cl.892.211 … go to describing the nature of an applicant’s involvement in that repetitive, continuous enterprise. In other words, the involvement of an applicant must be active in an enterprise that has a repetitive, continuous and permanent character.[62]
[61] [2015] MRTA 807.
[62] [2015] MRTA 807 at [39].
While a decision of the Migration Review Tribunal does not bind this Court, the observations of Member Mercer in Li[63] provide some guidance in relation to the interpretation of an otherwise undefined phrase in the learning on migration law. I agree with Member Mercer that the applicant must demonstrate, for the purposes of cl.890.211 of Sch.2 of the Regulations, activity in an enterprise that has a “repetitive, continuous and permanent character”.[64] To interpolate, on the facts of Li,[65] the Tribunal found that two export transactions in the space of four years could not be regarded as constituting “business” let alone an “actively operating” business. To my mind there is force in that conclusion.
[63] [2015] MRTA 807.
[64] [2015] MRTA 807 at [39].
[65] [2015] MRTA 807.
Ground two
Ms Chen submitted that the Tribunal acted unreasonably in determining that Karamadan did not satisfy the requirements of cl.890.211 of Sch.2 of the Regulations and in finding that Karamadan was not “actively operating” between October 2010 and July to September 2011. Ms Chen submitted that the Tribunal had evidence before it demonstrating that –
a)the applicants had marketed and built up the contacts of Karamadan;
b)the applicants had engaged in identifying purchasers and suppliers of goods to export during that period;
c)Karamadan was an export business which required a long time to be successful;
d)BAS statements provided to the Tribunal indicated that Karamadan incurred expenses;
e)Karamadan claimed GST and the Australian Taxation Office refunded those amounts, recognising Karamadan as a business for tax purposes; and
f)Karamadan had developed contracts with the United Nations for second-hand equipment including equipment to phase out ozone layer harmful substances.
Ms Chen submitted that in the face of those considerations, the sales in the period July to September 2011 on which the Tribunal focused indicated the unreasonableness of the Tribunal’s findings about Karamadan not “actively operating”. She submitted that it was illogical and unreasonable for the Tribunal to find that the preparation stages for export was not a period when the business was
“actively operating”simply because sales were not being made at the same time.
Ground three
The applicants’ written submissions[66] contained a third ground of review. In submissions before me, Ms Chen indicated that she relied on her written submissions in relation to ground three. In the written version of this ground, the applicants faintly pressed a submission that the Tribunal committed jurisdictional error by disregarding a relevant consideration, namely the successful operation of Karamadan beyond 20 October 2012. In paragraph 29 of the applicants’ written submissions, Ms Chen wrote that the Tribunal restricted itself to considering the two years prior to the making of the visa application and that the Tribunal erred by failing to consider the subsequent success of Karamadan beyond the visa application date.
Submissions of the first respondent
[66] Applicants’ Outline of Submissions filed 30 October 2015.
Ground one
Mr Richardson of Counsel, who appeared on the Minister’s behalf before me, submitted that the Tribunal made no error in interpreting the phrase “actively operating” in the way that it did, despite the fact that that phrase is not defined in the Act or the Regulations. Mr Richardson submitted that the phrase “actively operating” is not a word bearing a technical legal meaning - it is an ordinary word and that ordinary words are to be accorded their ordinary, non-technical meaning, the interpretation of which being a question of fact. Mr Richardson submitted that the decision of Cowdroy J in Cheng v Minister for Immigrationand Citizenship[67] (“Cheng”) provided support for that proposition.
[67] (2013) 213 FCR 362 at [11].
In addition, Mr Richardson submitted that cl.890.211(2)(b) of Sch.2 of the Regulations required all BAS documentation for the period in issue to be included in the visa application. Mr Richardson submitted that the Tribunal correctly considered the plain meaning of the phrase
“actively operating”by having regard to the sales shown in Karamadan’s BAS returns. So Mr Richardson said, Karamadan’s BAS documentation was required to be placed in front of the
decision-maker for there to have been a valid visa application.
Mr Richardson submitted that the Tribunal’s use of the BAS documentation for Karamadan in order to determine whether Karamadan was “actively operating” was a permissible course in the process of factual findings and that an ordinary interpretation of the absence of sales during the relevant period was a permissible factual finding.
The Minister submitted that no jurisdictional error was raised by ground one.
Ground two
On behalf of the Minister, Mr Richardson submitted that the question for resolution by the Tribunal - whether the business was actively operating - was a factual enquiry. Referring to the decisions in SZMDS[68] and Minister for Immigration and Citizenship v Li,[69]
Mr Richardson submitted that it was not reasonably open on the evidence to conclude that jurisdictional error had been committed by the Tribunal. He submitted that the Tribunal made findings of fact that were open to it in concluding that the BAS documents revealed
nil sales figures for the relevant period leading to the conclusion that Karamadan was not “actively operating”.
[68] (2010) 240 CLR 611, 619 at [19].
[69] (2013) 249 CLR 332.
Ground three
Mr Richardson contended that the Tribunal made no error in considering the circumstances of the business for the two years immediately before the making of the visa application. He contended that the requirements of cl.890.211 of Sch.2 of the Regulations called for nothing less than that.
Application of legal principles to the facts of this case
In my judgment, the applicant failed to demonstrate that the Tribunal’s decision was vitiated by jurisdictional error on any of the grounds advanced.
Accepting as I do that the onus of proving jurisdictional error fell to the applicants, I have carefully examined the Tribunal’s reasons in conformity with the instruction given by the High Court that this Court is not astute to discerning jurisdictional error and that the Tribunal’s reasons for the decision under review are not to be examined minutely and finely with an eye keenly attuned to the perception of error. Further, in accordance with the observations of the High Court in Craig,[70] I have carefully examined the Tribunal’s reasons for evidence that the Tribunal –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)made an erroneous finding or reached a mistaken conclusion.
In my judgment, the applicants have failed to prove that the Tribunal’s reasons are adversely affected by jurisdictional error on any of those grounds. Further, I am not persuaded that the Tribunal reached conclusions that were illogical or unreasonable.
[70] (1995) 184 CLR 163.
Let me explain why below, in reference to each ground advanced by the applicants.
Ground one
In considering whether the applicants were entitled to a visa under cl.890.211 of Sch.2 of the Regulations, they were required to persuade the Tribunal that Karamadan was “actively operating” in accordance with the requirements of the Regulations. That phrase was a
non-technical phrase and did not require the Tribunal to embark upon a consideration of matters of law. It was open to the Tribunal to find that the expression “actively operating” involved a consideration of whether Karamadan exhibited activity of a “repetitive, continuous and permanent character”[71] in which Karamadan –
[71] [2015] MRTA 807 at [39].
a)actively sought to generate business;
b)in fact generated trade and custom; and
c)derived some financial gain for its activities in the relevant period.
The Tribunal in fact engaged in that process of forensic examination. Among the issues to which the Tribunal had regard was the financial information as recorded in the BAS documentation of Karamadan.
The financial information recorded in the relevant BAS documentation revealed a sorry tale insofar as business activity was concerned.
Sales in the relevant period were modest in the extreme. In my judgment, it was entirely open to the Tribunal to consider that sales of the magnitude that Karamadan revealed were consistent with a business that was not “actively operating”. That was a factual finding, open on the material before the Tribunal.
In my view, the Tribunal did not –
a)identify a wrong issue;
b)ask itself a wrong question;
c)ignore relevant material;
d)rely on irrelevant material; or
e)make an erroneous finding or reach a mistaken conclusion.
The hallmarks of jurisdictional error as conceived by Craig[72] were not satisfied on the facts of this case in respect of ground one.
[72] (1995) 184 CLR 163.
Some support is to be found for the proposition that the meaning of a technical legal term is a question of law but that the ordinary meaning of a word or its non-legal technical meaning is a question of fact.
So much was held by the High Court of Australia in Collector of Customs v Agfa-Gevaert Ltd[73] (“Agfa-Gevaert”). In Cheng,[74]
Cowdroy J dealt with an appeal from a decision of Federal Magistrate Driver in which the phrase ‘turnover’ fell for interpretation. Cowdroy J referred to the High Court’s decision in Agfa-Gevaert, holding that the ordinary or non-technical meaning of a word is a matter of fact. His Honour said that the extent to which the statutory context of a word affects its meaning is a question of law. His Honour held that where an applicant seeks to challenge a finding as to the ordinary meaning of a word through judicial review, the applicant may do so by showing that the statutory context of the particular word evinces a meaning different to the ordinary meaning found by the court below. Cowdroy J held that the Federal Magistrate did not err in failing to find jurisdictional error in the Tribunal’s reasons.
[73] (1996) 186 CLR 389 at 395.
[74] (2013) 213 FCR 362.
In this case, Mr Richardson submitted that the ordinary meaning of the phrase “actively operating” was a matter of fact to be decided by the Tribunal and that any revisiting of the Tribunal’s finding would operate in an impermissible way because it would have effect of undertaking a merits review.
The Tribunal reached its conclusion, in my view properly, on the evidence before it. The Tribunal’s holding in relation to Karamadan achieving no sales in the relevant period was open to it.
No jurisdictional error was disclosed from such a finding.
Ground two
In considering all parties’ arguments in relation to ground two, I have kept steadily in mind that this Court is not permitted to undertake a merits review in an application to this Court from the Tribunal under the Act for judicial review, nor is this Court permitted to simply substitute a different conclusion for the Tribunal’s conclusion by reason of the fact that this Court may prefer a different outcome. By no means is this case in that category. Equally, this case is not within the class of cases where the Court will interfere, thereby upsetting the Tribunal’s decision on the basis that the Tribunal’s decision appears so unreasonable that no reasonable tribunal could properly have arrived at it. In my judgment, the Tribunal’s decision was entirely proper and rational. It was open on the facts of this case. To my mind, this case is not one where reasonable and rational minds might differ on a given set of facts.
In this case, the factual matters that fell for the Tribunal’s determination were the substratum of facts leading to the conclusion about whether Karamadan was “actively operating”. The Tribunal properly applied facts that were open to it for its assessment in arriving at the conclusion that Karamadan was not “actively operating” at the relevant time. Far from that indicating illogicality or irrationality, in my view the Tribunal’s decision was not only wholly open but it was a conclusion properly reached on the evidence before it.
In the circumstances, ground two fails. No jurisdictional error was revealed by ground two.
Ground three
The applicants sought to demonstrate jurisdictional error by pointing to the so-called failure by the Tribunal to consider matters beyond
26 October 2012, being the visa application date. To my mind,
this ground is misconceived. Under cl.890.211 of Sch.2 of the Regulations, the relevant timeframe was two years prior to the making of the visa application. Events subsequent to the making of the visa application were not to the point. To the contrary - had that delegate or the Tribunal considered matters beyond the visa application date,
the delegate or the Tribunal would have been at risk of considering an irrelevant matter with effect that, had either done so, each was likely to have committed jurisdictional error. That is the antithesis of the submission which the applicants make in ground three. In my judgment, ground three is without merit.
Conclusion
It seems to me that each of the three grounds contended for by the applicants have failed. As the applicants carried the burden of proof, they failed to discharge it. For those reasons, this application for review is dismissed with costs fixed at the sum of $6,825.00.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 11 March 2016
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 1005 at [73].
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