Sharma v Minister for Immigration
[2007] FMCA 2027
•17 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2027 |
| MIGRATION – Visa – Business Skills-Established Business (Residence) (Class BH) visas – Migration Review Tribunal – application for review of MRT decision affirming decision of a delegate of the Minister – no reviewable error. |
| Migration Act 1958 (Cth), ss.359, 359A, 472 Migration Regulations 1994 sch.2 |
| Abebe v Commonwealth (1999) 197 CLR 510 |
| First Applicant: | RAKESH KUMAR SHARMA |
| Second Applicant: | SASHI KANTA DEVI SHARMA |
| Third Applicant: | RAVIKESH KUMAR SHARMA |
| Fourth Applicant: | RAVINESH SHARMA |
| Fifth Applicant: | RONITA SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2019 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2007 |
| Date of Last Submission: | 17 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Appearance for the Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2019 of 2007
| RAKESH KUMAR SHARMA |
First Applicant
| SASHI KANTA DEVI SHARMA |
Second Applicant
| RAVIKESH KUMAR SHARMA |
Third Applicant
| RAVINESH SHARMA |
Fourth Applicant
| RONITA SHARMA |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal which was signed on 22nd May 2007 and handed down on
4th June. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant to the applicant’s Business Skills - Established Business (Residence) (Class BH) visas. The applicants seeks orders:
(1)Quashing the decision of the Migration Review Tribunal and returning the matter to the Tribunal for consideration according to law; and
(2)An order that the applicants maintain their current visas until a decision is made by this Court.
I would comment at this stage that this Court has no power to make the second order that is sought.
The applicants are a husband and wife and their children. The children at this stage do not have a litigation guardian, although that is a matter that can be fairly easily addressed. The first and second applicants are of course adults. The third applicant Ravikesh Kumar Sharma, was born on 16th June 1989 and is therefore an adult. The fourth and fifth applicants, however, were born in 1991 and 1994; they are infants.
I propose to make an order appointing the first applicant as litigation guardian of the fourth and fifth applicants.
The applicants are nationals of Fiji. They applied for Business Skills -Established Business (Residence) (Class BH) visas on 17th December 2004. A delegate of the Minister refused to grant the visas on 10th July 2006 and notified the applicants that day. On 31st July 2006 the applicants applied to the Migration Review Tribunal for a review of the delegate's decision.
On 19th January 2007 the Tribunal wrote to the applicants under the provisions of ss.359 and 359A of the Migration Act[1]. First of all, under the provisions of s.359A of the Act the Tribunal invited comments by the applicants on the following pieces of information. The Tribunal said as follows:
[1] See pages 546 and 547 of the Court Book
You lodged your application for a Business Skills visa on
17 December 2004. As the financial statements that you submitted with the application were for the financial year ending 30 June 2004 you are asked to submit financial statements covering the 12 months prior to the lodging of the application. Under policy statements prepared up to 3 months prior to the date of lodgement as are acceptable. You submitted financial statements covering the years ending 30 September 2003 and
30 September 2004. In the statements for 12 months ending 30 September 2004 you claimed net assets in the business of $164,463 plus a directors’ advance of $17,435 a total of $181,898. However for the period ending 30 September 2003 you claimed the business had net assets of $60,120 and that your net assets in the business, when a directors’ advance of $17,435 is added, was $77,555.[2]
[2] See Court Book page 546
The Tribunal told the applicant that that information was relevant because it was a requirement of the visa to be met at the time of application that the applicants had net assets in the business of at least $100,000 throughout the period of 12 months immediately preceding the application. The letter went on to say:
You also submitted financial statements for the period 1 July 2004 to 30 September 2004. In these statements you claimed that the business had net assets of $120,939 as at 30 September 2004, which does not agree with the amount of $164,463 stated in the statements covering the period 1 October 2003 to 30 September 2004 referred above.
The Tribunal told the applicants that information was relevant because as those statements were not audited it may lead the Tribunal to find that they were not a reliable reflection of the financial position of the company. In that letter the Tribunal also invited the applicants to provide information under the provisions of s.359 of the Migration Act. The Tribunal invited the applicants to provide financial statements for the financial year ending 30th June 2006. The Tribunal asked the applicants to provide written comments and information by
28th February 2007.
The first applicant replied on 2nd February 2007 in which he enclosed a letter from his accountant which he said explained why the net assets for the period 1st July 2004 to 30th September 2004 and net assets as at 30th September did not agree. He also went on to say that his migration agent had misunderstood the migration issues and he decided to change his migration agent. He sought an extension of time to look for another agent. A copy of that letter can be found at page 548 of the Court Book and the letter from the accountant dated 1 February 2007 appears at pages 549 through to 552.
The Tribunal wrote to the applicants on 7th February 2007 inviting them to attend a hearing on 6th March. The Tribunal also received a letter dated 12th February 2007 from Harish Prasad and Associates, a firm of solicitors practising in Parramatta. In that letter the solicitors advised that they had been instructed to act for the applicant and they sought a postponement of the hearing of 6th March for a period of one month in order to obtain further information. The Tribunal, however, on 14th February 2007 declined to postpone the hearing and advised the parties that the hearing would proceed at 9:30 am on 6th March.
The applicant's solicitors then wrote to the Tribunal on 28th February 2007 providing further information and making comments in answer to the s.359A letter. That information included copies of balance sheets.
The hearing indeed took place on 6th March 2007. The first applicant appeared and gave evidence. The applicant's accountant, Mr Narayan Ruban, gave evidence by telephone concerning the discrepancies in the appropriate statements. The applicants submitted additional documents after the hearing, including copies of leases of shops and a reconciliation of director's drawings for the period 30th June to
30th September 2003.
The Tribunal signed its decision on 22nd May and handed that decision down on 4th June 2007. A copy of the Tribunal decision record can be found at pages 633 to 642 of the Court Book. In that decision the Tribunal set out the evidence at pages 636 through to 639. Its findings and reasons can be found at pages 639 through to 641. The Tribunal noted that at the time the visa applications were lodged Business Skills Residence (Class BH) visas had the following subclasses:
(1)Subclass 845, which is established business in Australia; and
(2)Subclass 846, State or Territory sponsored region or established business in Australia.
The applicants had only made claims in respect of Subclass 845, (Established Business in Australia). The Tribunal noted that they did not meet the criteria for the other subclass as there was no evidence that they were sponsored by any State, Territory or region.
The Tribunal noted that the delegate had found that the first applicant did not meet the criterion set out in cl.845.215. That clause requires the Tribunal to determine whether the primary visa applicant and the second applicant had net assets in the business of $100,000 in the
12 months immediately preceding the making of the application.
The Tribunal noted that the clause required that the net assets must have been at least $100,000 throughout the whole 12 month period. The relevant period assessed by the Tribunal was 16th December 2003 to 16th December 2004.
The Tribunal considered the applicants' statements, including later statements submitted, and it was not satisfied that they represented a more accurate position of the company's financial position.
The Tribunal referred to the director's drawings reconciliation and commented unfavourably as follows:
In addition the directors’ drawings reconciliation provided to the Tribunal suggests that an amount of $62,130 that was repaid to the directors in the July - September 2003 quarter but no further evidence was provided to the Tribunal to evidence this and
the accountant told the Tribunal that the directors did not draw fees during the 12 months to 31 December 2003. In the Tribunal's view this shows a further lack of transparency in the financial statements.
The Tribunal therefore will assess the primary visa applicant's ability to meet the criterion in cl.845.215 against the financial statements covering the period 1 October 2002 to 30 September 2003 and 1 October 2003 to 30 September 2004. The Tribunal notes that in the submission by the representative dated
28 February 2004 that the financial statements for 1 October 2002 to 30 September 2003 were erroneous and referred the Tribunal to a letter dated 1 February from the accountant, Mr Ruban, but this letter refers only to a clarification for the Tribunal's benefit of the difference in net assets in statements covering a 12 month period to 30 September 2004 and the statements covering a 3 month period to that date.
The Tribunal is satisfied that the primary visa applicant and his spouse held net assets of at least $100,000 at 30 September 2004 and that this position was maintained in the period up to the date of application.[3]
[3] See Court Book pages 640 to 641
The Tribunal went on to say:
However, the Tribunal is not satisfied that the primary visa applicant and his spouse held net assets of at least $100,000 throughout the 12 month period preceding the making of the application. It finds that they held net assets of $77,555 (being net assets of $60,120 plus Directors; loans $17,435) at
30 September 2003. It is not satisfied on the evidence before it that their position improved to the point where they held net assets of at least $100,000 by 16 December 2003 as it does not accept the statements covering the financial position from
1 January to 31 December 2003 as reliable given that they contradict the company's position declared with the Tax Office. The Tribunal is of the view that they minimised the company's expenses in order to boost the profits and therefore the net assets.
The Tribunal found the primary visa applicant did not meet the criterion in cl.845.215 at the time of application and affirmed the decision to refuge the grant of a Subclass 845 visa. The basis was that the primary visa applicant had failed to meet one of the essential criteria and there was no evidence that any of the secondary visa applicants was able to meet the criteria.
The applicants commenced proceedings for judicial review on 2nd July 2007 by filing an application and an affidavit. The applicants filed an amended application on 12th September 2007. The applicants filed an outline of submissions on 12th October 2007 to which a number of financial statements were annexed. The first applicant appeared by himself on behalf of himself and the other applicants indicating that he was sick of paying money to migration agents. He asked the Court to quash the decision of the Migration Review Tribunal. In his outline of submissions the first applicant told the Court that he had entered Australia as the holder of a Temporary Business (Class UC) Subclass 457 Business Long Stay visa on 14th February 2001 and that that factor should have led the Migration Review Tribunal to accept that he was an established businessman otherwise the Australian Embassy as he said, or more correctly, the Australian High Commission at Suva, would not have granted him that visa.
He told the Court that the Tribunal had before it evidence that his two purchased properties in Melbourne generated income and that income was part of his business which enabled him to obtain the Subclass 457 visa as an independent executive. He referred to the financial report for his two properties in Victoria and submitted that whilst the Court Book contained evidence concerning his financial position and said that the Tribunal failed to ask itself whether he had one main business or businesses in Australia or elsewhere. He complained that the Tribunal spoke with his accountant but concentrated on negative rather than positive factors such as ignoring important issues declared to the Tax Office.
He told the Court that he and his wife were the managing directors of the company R A Sharma and Co Pty Ltd and said that he owned assets in Australia valued at approximately $A1 million and he could not accept that the Tribunal had refused his application because he did not have net assets in the business of $100,000 in the 12 months immediately preceding the making of the application. He questioned whether the Tribunal member was capable of understanding the law. He said that he had engaged a registered migration agent and consultant to prepare the application and also engaged the services of a qualified accountant. He claimed that the decision to refuse his application was wrong because it was a decision contrary to the advice of the migration agent and submitted that if he knew that his application was going to be refused he would have extended his 457 visa because the same requirements apply and he would have had no doubt in extending that visa for a further four years.
He criticised the Tribunal because the member was not an accountant and claimed that the Tribunal committed an error of law by saying the Tribunal was not satisfied with the statement prepared represents a more accurate picture of the financial position of the company rather than statements for the period 1st October 2002 to 30th September 2003.
The applicant submitted that the Tribunal's conclusion that it was not satisfied that the applicants had $100,000 or more in net assets in their business at 16th December 2003 was a finding of fact, but he submitted that finding of fact was unreasonable and therefore submitted that it was an error of law to come to that finding because it was not open for the Tribunal to find that it was not satisfied that the applicant did not meet cl.845.215. He also submitted that the Tribunal made an error of law by ignoring the class of visa held by the applicant before lodging the application in dispute and by ignoring the assets owned by the directors. The applicant submitted that the Tribunal failed to understand the financial position and concentrated on "what it is against rather than what it is for" and claimed the Tribunal fell into error of law and ignored relevant material, relied on irrelevant material to make a wrong finding and reach a mistaken conclusion.
The respondent Minister filed a written outline of submissions on
19th September 2007. At the hearing Mr Reilly of counsel told the Court it was unfortunate that the applicant had not engaged legal representation because all that the applicant was alleging was factual error. He went on to submit that even if the applicants could satisfy the Court that there was a factual error that is not an error of law and certainly not a jurisdictional error. In respect of the Tribunal's finding that the primary applicant did not meet the relevant criteria in cl.845.215, he submitted that the applicant's argument did not go beyond asserting a factual error. A factual error is not jurisdictional error. He submitted that it was open to the Tribunal to reach its finding that it did based on the evidence. Whilst there were humanitarian matters that were raised by the applicant, they of course were not relevant to the Tribunal's decision.
The applicant in reply told the Court that the Tribunal had concluded there was insufficient evidence to satisfy it that the applicants had $100,000 in assets at the relevant time and that this was an error which would vitiate the decision.
The only subclass of the visa class in which the applicants made claim was in fact Subclass 845. The relevant criteria are set out in
Subclass 845 of sch.2 to the Migration Regulations 1994. Among the criteria to be satisfied at the time of application for visa is cl.845.215. That clause which the Tribunal quoted in its decision :
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 $A100,000.
The Tribunal pointed out to the applicants in the s.359A letter of
19th January 2007that the delegate had not been satisfied that the applicants met that criterion. The Tribunal found, based on the financial statements submitted, that as at 16th December 2003 the applicants did not have net assets of $100,000 or more. The Tribunal noted that as at 30th September 2003 the net assets were only $77,555 and the Tribunal was not satisfied that they had increased to over $100,000 by 16th December of that year. The Tribunal noted that the statements that the applicant submitted to support that conclusion were contradicted by the information declared by the applicants to the Australian Taxation Office.
Accordingly, the Tribunal concluded that there was insufficient evidence for it to be satisfied that the applicants had net assets in the business of $100,000 or more on 16th December 2003. Thus, the applicants failed to satisfy cl.845.215 and the visa had to be refused.
This conclusion by the Tribunal is a finding of fact, as the applicant admitted. The applicant, however, claims that it is a wrong finding of fact. However, there is no error of law if the Tribunal makes the wrong finding of fact (see Abebe v Commonwealth[4]). It was open to the Tribunal to find that it was not satisfied that the applicant met the requirements of cl.845.215 for the reasons given by the Tribunal in its decision.
[4] (1999) 197 CLR 510 at [137]
Whilst the applicant claims that the Tribunal failed to consider the requirements of cl.845.214 which says:
The total value of the net assets in Australia of the applicant, or the applicant and the applicant's spouse together, (a) is and (b) has been throughout the period of 12 months immediately preceding the making of the application at least $A250,000.
There was no need for the Tribunal to consider that. The visa criteria are cumulative and if the applicants could not satisfy cl.845.215 they could not meet the requirements of the visa.
The Tribunal considered the applicant's claims made in respect of the business R A Sharma and Company Pty Ltd, but was not satisfied on the facts that the applicants had the assets at the relevant time. This is a finding of fact and there is no error of law. As there is no error of law, there is no jurisdictional error. As there is no jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.472 of the Migration Act. Accordingly, the decision is final and conclusive. It follows that the application must be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 November 2007
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