Xin v Minister for Immigration
[2006] FMCA 1925
•21 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XIN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1925 |
| MIGRATION – Business skills visa – total value of net assets – Migration Regulations – meaning of clause 845.215 – whether modified by Procedure Advice Manual 3 – identification of correct 12 month period – no error – whether denial of procedural fairness – application of s.357A of Migration Act – whether breach of s.359A of Migration Act. |
| Federal Magistrates Court Rules 2001, r.9.03 Migration Act 1958, ss.353, 357A, 359A, 379A, 422B |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 |
| First Applicant: | SHUJIAO XIN |
| Second Applicant: | ZHU CHENG XIN |
| Third Applicant: | CHRIS AO YA QIN |
| Fourth Applicant: | SHUJIAO XIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2322 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 August 2006 |
| Date of last submission: | 1 September 2006 |
| Delivered at: | Melbourne (by video link to Sydney) |
| Delivered on: | 21 December 2006 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the First Respondent: | Mr S Free |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Applicants solicitors be granted leave to withdraw as lawyer for the Applicants pursuant to Rule 9.03(2) of the Federal Magistrates Court Rules 2001.
The application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2322 of 2005
| SHUJIAO XIN |
First Applicant
| ZHU CHENG QIN |
Second Applicant
| CHRIS AO YA QIN |
Third Applicant
| YONG HENG QIN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants rely upon an application filed on 23 August 2005 seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal, in a decision dated 30 June 2005, affirmed a decision of a delegate of the First Respondent who had found that the visa Applicants were not entitled to the grant of business skills (residence) (class BH) visas. The grounds sought to be relied upon by the Applicants appear to be set out in the supporting affidavit of the First Applicant sworn on 17 August 2006.
The hearing of this matter was scheduled for 18 August 2006. The parties were notified of the hearing date in March 2006. Unfortunately, solicitors on record for the Applicants filed a Notice of Ceasing to Act on 10 August 2006. That notice, which I take to be a Notice of Withdrawal pursuant to r.9.03 of the Federal Magistrates Court Rules 2001, appears to have been served upon the Applicant on the same day as the notice was filed namely, 10 August 2006.
Rule 9.03(2) provides that notice cannot be filed without leave of the court "unless the lawyer has, not less than seven days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting". Whilst I am prepared to grant leave to the solicitors to withdraw, it was of concern to the court that the Applicants, just a week prior to the scheduled hearing, then found themselves unrepresented before this court.
In the circumstances, the court indicated to the parties that it was prepared to grant an adjournment from August to November of the hearing. After giving the First Applicant an opportunity to consider the matter, the court was then advised by the First Applicant that no adjournment was sought and that the Applicant wished to proceed with the application. Accordingly, the matter proceeded save that as a formality the court granted leave to the former solicitors for the Applicants to file the Notice of Withdrawal.
Background
The First Applicant is a Chinese citizen who applied for a business visa on 27 February 2003. The First Applicant's spouse, daughter and stepson, who are the Second, Third and Fourth Applicants, applied for the same visa on the basis of their status as members of the First Applicant's family, and are therefore secondary Applicants.
After the application was refused by a delegate of the Minister on
14 October 2003 the Applicants then sought review of that decision in the Tribunal. The Tribunal affirmed the decision of the delegate in its decision dated 30 June 2005.
Relevant legislation
I am satisfied that the relevant legislation has been accurately set out in the First Respondent's outline of submissions in the following terms:
“4.Pursuant to s. 65 of the Migration Act 1958 (“Migration Act”), the Minister must, after considering a valid application for a visa, grant the visa if satisfied that the criteria in s. 65(1)(a) are satisfied. If the Minister is not so satisfied, the Minister is to refuse to grant the visa. Relevantly, s. 65(1)(a)(ii) requires that the Minister must be satisfied that criteria prescribed by the Act or the regulations have been satisfied. On the application for review from the decision of the Minister’s delegate, the Tribunal was required to exercise the powers and discretions conferred by s. 65 (s. 349).
5.The criteria for the subclass of business visa applied for by the applicants – a Business Skills (Residence)(Class BH) Subclass 845 (Established Business in Australia) Visa – are set out in cl. 845 of Sch 2 to the Migration Regulations 1994 (“Regulations”). For present purposes, the significant criterion is that set out in cl. 845.215:
‘845.215 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 AUD100,000.’
6.‘Main business’ is defined in reg. of the Regulations in the following terms:
‘(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a) the applicant has, or has had, an ownership interest in the business; and
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c) the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse, in the business is or was at least 10% of the total value of the business; and
(d) the business is a qualifying business.
(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.’”
The Tribunal hearing
A hearing was conducted by the Tribunal on 22 April 2005 and evidence was given by the First Applicant. In its decision, the Tribunal summarised the evidence on the material before it, together with the oral evidence.
For the purpose of the Regulations set out above, the Applicant nominated Quincy Development Pty Ltd (Quincy) as a "main business". Quincy was registered as a corporation on 31 May 2001. The visa Applicant, Ms Yao and Mr Shen were listed as directors and members of Quincy. The visa Applicant held 80 per cent of the shares, that is, 800 shares out of a total of 1000 shares, having paid $1.00 per share in Quincy.
It is relevant to note at this point that the Tribunal in its decision was satisfied that Quincy was a "main business" and that the First Applicant had an "ownership interest" in Quincy. The Tribunal found, however, that the First Applicant did not satisfy the criterion in clause 845.215 of the Regulations. In applying the criterion in that clause, the Tribunal identified the relevant period from 27 February 2002 to 27 February 2003 as being the "period of 12 months immediately preceding the making of the application".
In determining the total value of net assets "owned by the Applicant ... in the main business" the Tribunal took into account that the First Applicant had a 49 per cent shareholding in Quincy during the relevant period. To understand the factual background, it is relevant to set out the following paragraphs from the Tribunal's decision which form part of the summary of the evidence:
“11. On 18 June 2001, the visa applicant claimed she lent Quincy $100 000 (T1, ff.27-30, 250). At the hearing the visa applicant stated that the monies came from her Indonesian bank account. Subsequently the Tribunal was provided with a submission from the visa applicant’s representative in which he stated that the visa applicant transferred AUD490 000 from overseas in to Australia in June 2001 (T1, ff.228-241). Also provided was a Bank of China bank statement for the visa applicant’s account which indicates that $490 865.67 was deposited into the visa applicant’s account on 4 June 2001 (T1, f.337). Unfortunately no evidence was provided as to the source of funds. Another bank statement for the visa applicant’s Bank of China account indicates that $110 000 was debited from that account on 18 June 2001 (T1, f.335). Quincy’s Commonwealth Bank account bank statement for the period 14 June 2001 to 16 July 2001 indicates that $110 000 was deposited in the account on 18 June 2001 (T1, f.336).
12. On 17 September 2001, Quincy changed its share structure. It was stated in the visa applicant’s representative’s submission of 8 July 2004 (T1, ff.78-79) that the visa applicant was granted
49 000 shares at $1 per share, resulting in the visa applicant owning 49% of shares. $49 000 from the loan advanced by the visa applicant on 18 June 2001 was allotted as payment for the shares, leaving $61 000 owed to the visa applicant by Quincy. The visa applicant confirmed this at the hearing. This visa applicant’s representative’s submission of 12 May 2005 states that during the period 27 February 2002 to 27 February 2003 the visa applicant had made a loan to Quincy of $61 000.”
For reasons which will become apparent, it is important to further note in the summary of evidence the following paragraphs from the Tribunal decision:
“17. On 30 October 2003 an application for review was lodged with the Tribunal. When lodging the application the visa applicant stated that the financial statement for 30 June 2002 provided to the Department (D3, f.70) was an interim financial statement and was, in fact, incorrect. On 9 July 2004 the visa applicant provided a revised financial statement which indicated that, at 30 June 2002, Quincy’s net assets were valued at
$101 083 (T1, ff.38-49).
18. Also on 9 July 2004 and 15 July 2004 the Tribunal was provided with additional information (T1, ff.18-22). Included in the information was an audited financial statement for the period 15 January 2002 to 15 January 2003 (the special purpose accounts).
…
24. On 13 April 2005 the visa applicant’s representative provided Quincy’s bank statements for its account held with Commonwealth Bank of Australia for the period 16 June 2001 to 17 March 2003 (T1, ff.225-250). At the hearing on 22 April 2005 the Tribunal was provided with the bank statements for Quincy’s USD account held with Bank of China for the period 18 June 2001 to 25 November 2004 (T1, ff.255-258). Bank statements for these accounts had also been provided to the Department.”
25. On 22 April 2005, at the hearing, the special purpose accounts for the period 15 January 2002 to 15 January 2003 and the 2 sets of bank statements for Quincy were discussed with the visa applicant. The visa applicant stated that Quincy receives income from export waste contracts and educational services. The visa applicant also stated that all consultancy fees paid to Quincy for the wastewater treatment contracts were paid into Quincy’s USD account. However, the visa applicant was questioned about the larger amounts being paid into the USD account which were usually followed by large amounts being withdrawn from the USD account. The visa applicant stated that these monies were paid by clients for chemical purchases in China and monies required to conduct experiments.”
The Tribunal recites the relevant legislation set out earlier in this judgment, together with the claims made by the Applicants, and then made a preliminary finding set out in the following paragraph:
“48. On the face of the evidence referred to above, the visa applicant’s net assets in Quincy could be valued as follows:
As at 15 January 2002
(49% of $83 268) + $61 000
= $40 801 + $61 000
= $101 801
As at 30 June 2002
(49% of $101 083) + $61 000
= $49 530 + $61 000
= $110 531As at 15 January 2003
(49% of $83 546) + $61 000
= $40 938 + $61 000
= $101 938”After setting out the preliminary calculation, the Tribunal then expressed concern about financial information provided and relevantly stated the following:
“49. However, the Tribunal has some concerns about the financial information provided, particularly in the special purpose accounts. The special purpose accounts provided in support of this criterion are for the period 15 January 2002 to 15 January 2003 when the relevant period was from 27 February 2002 to 27 February 2003. One of the assets listed in the special purpose accounts is Cash at Bank which was $91 961.87 at 15 January 2002 (T1, f.71). However, the Tribunal in assessing the Cash in Bank account, which is a major asset of Quincy, has considered the bank statements for the two bank accounts. The balance of the USD account as at 15 January 2002 was USD61 067.42, however, by 22 January 2002 and, therefore, at 27 February 2002 the balance in the USD account was USD4 042.42. As to the Commonwealth bank account as at 7 January 2002 and, therefore, 15 January 2002 the balance was $89 071.91. However, on 27 February 2002 the balance in the Commonwealth account was $76 118.82. Therefore, the Cash in Bank amount of $91 961.87 used in the special purpose accounts at 15 January 2002 would have to be reduced to represent the amount for Cash in Bank as at 27 February 2002. The reduction would have to be USD57,025 and $12 953.09.
50. As the assets of the visa applicant in Quincy, as initially calculated above, were at 15 January 2002 $101 801, the reduction in the asset of Cash at Bank as set out above, would reduce the initial calculation of the visa applicant’s net assets in the main business to considerably below the required $100 000.
51. The Tribunal has other concerns about the special purpose accounts which are discussed below. From the evidence of the visa applicant at the hearing and referred to above, some of the amounts in the USD account are specifically for the purchase of Chinese chemicals. Therefore, the amounts paid by the clients into the USD account for chemicals are more in the way of disbursements than trading income. That is money provided by clients to pay for future expenses, with the exception of a small percentage of the amounts which is profit, and should not be included in Quincy’s assets. Particularly monies paid in August and November 2002. Further, the Tribunal has concerns about the nature of the loan to Mr Shen and how the Shanghai office reconciles its payments to Quincy. The visa applicant stated that the loan to Mr Shen was for office expense for the Shanghai office. The loan, therefore, is more in the way of an office expense and not a loan particularly as Quincy receives payments of profit from the Shanghai office. As to the payments provided by the Shanghai branch office to Quincy in May 2002, in the total amount of $75 000, the visa applicant stated that this was consultancy fees being paid by the Shanghai branch office and that these monies are distributed on a 3 to 7 ratio. However, the service income listed in the special purpose accounts as at 15 January 2003 is only $12 422.73. No explanation or documentation has been provided to the Tribunal setting out the exact relationship of Quincy to the Shanghai office or how the Shanghai office reconciles it payments to Quincy’s bank account. Further, the visa applicant’s representative claimed that Quincy prior to 27 February 2002 had 32 of 76 students approach Quincy, yet this number of students is not reflected in the service income as at 15 January 2002 as that is nil in the special purpose accounts.”
I am satisfied that those paragraphs set out above identify "four additional factors bearing on the valuation of Quincy's assets", accurately summarised by the First Respondent as follows:
“(1) The need to adjust the “Cash at Bank” amount to more accurately reflect Quincy’s position as at 27 February 2002;
(2) The need to adjust the amount in the USD account to remove from the calculation amounts which should properly be characterised as disbursements or money held for payment of future expenses, rather than as trading income;
(3) The need to reappraise the “loan” from Quincy to Mr Shen, to take account of the fact that it was more in the nature of payment for an office expense than a loan; and
(4) The need for clarification of how the Shanghai office reconciles its payments to Quincy’s bank account.”
Although the Tribunal does not then proceed to make specific calculations of adjustments and the concerns referred to in the paragraphs set out above, it is submitted by the First Respondent that that was because the Tribunal's consideration of the need to adjust the "cash at bank" amount to more accurately reflect Quincy's position as at 27 February 2002 was found to be sufficient to establish that the First Applicant did not satisfy the criterion in clause 845.215. So much is evident from the following paragraph in the Tribunal's decision:
“52. Clause 845.215 requires that the net assets owned by the visa applicant in the main business, Quincy is and has been throughout the period of 12 months immediately preceding the making of the application at least $100 000. The relevant period is 27 February 2002 to 27 February 2003 and for reasons stated above the asset, Cash in Bank has to be considerably reduced at the start of the relevant period. Further, there is nothing on the evidence to indicate that the reduction of that asset was made up in another asset. The payments from Shanghai only appear in Quincy’s Commonwealth bank account in late May 2002, nearly 3 months into the relevant period. The loan to Ms Yao was not made until June 2002, 4 months into the relevant period. The next payment for a wastewater project was August 2002, nearly 6 months into the relevant period. On this evidence and for the above reasons the Tribunal finds that the visa applicant did not continue, throughout the 12 months immediately preceding the making of the application, own net assets in the main business, Quincy of at least $100 000.”
After making the relevant adverse findings, the Tribunal then concluded that it had "no alternative but to affirm the decision under review".
It should be noted from paragraph 49 of the Tribunal's decision set out above that a minor error is conceded, where reference was made to a Commonwealth Bank account balance on 27 February 2002, being $76,118.82, when a document which appears in the Court Book (p.107) indicates the correct amount should have been $76,024.62. I accept, as submitted by the First Respondent, that that error was an error in the Applicant's favour and does not otherwise provide any basis for finding a jurisdictional error of a kind that would enable the court to quash the Tribunal's decision.
The crucial findings of the Tribunal followed consideration of what it regarded as accurate balances in the USD and Commonwealth Bank accounts as at 27 February 2002, which appear in paragraphs 49 and 50 of the Tribunal decision set out above.
The Applicant’s Submissions - Grounds
In the application, the Applicants claim the Tribunal erred in its application of criterion 845.215 of the Regulations by "failing to properly calculate the total value of the net assets owned by the First Applicant in her main business in Australia".
During the course of submissions, the Applicant referred to the affidavit and sought to argue that there were four legal errors committed by the Tribunal. The first error is claimed to arise from what the Applicant describes as the "key point for my case is whether my application meets the criteria set out in the Migration Regulations 1994 (the Regulations) schedule 2, 845.215". In support of that submission, the First Applicant in her affidavit relevantly states:
“A. There is not a legal definition of ‘12 month immediately preceding the making of the application."
The First Applicant then refers to the first attachment to her affidavit, which is an extract from the Department's web site where in paragraph 41.2 the heading "Avoiding Double Count" appears. Under that heading the First Applicant relied upon the following sentences:
“Under policy, officers are advised to ask Applicants to demonstrate the net value of their personal and business assets on one date within the three months preceding the lodgment of the visa application.”
The First Applicant submitted that it is clear that "the period of 12 months immediately preceding the making of the application" is not calculated from the date of lodging the application but rather is calculated from "a date within three months of lodging the application". It was argued that, in other words, the relevant period of 12 months is not calculated from the date of lodging the application. The First Applicant argues in her affidavit that under the Department's policy, all applications for 845 visas must have an auditing report of their business financial statements before lodging the 845 visa application.
The First Applicant submitted the auditing report must cover the period of 12 months immediately preceding the making of the application. The period of 12 months, it was argued, is from a date within three months of making the application. In practice, it was argued that preparing an auditing report needs time to be finalised, and preparing an application for an 845 visa also requires time to be finalised, and it would be unreasonable and impractical to expect the visa application to be prepared on the same date with an auditing report because the auditing report has to be produced first to enable the 845 visa application to be prepared.
The First Applicant argued that in her application for an 845 visa, the auditing report was finalised on 15 January 2003 and covers the period of 12 months from 15 January 2002 to 15 January 2003. She lodged the application on 27 February 2003 and argued that it therefore fits in with the department's policy of "a date within three months of lodging the application".
The second error identified by the Applicant appears in the affidavit at page 3 in paragraph 6, where the Applicant asserts that the Tribunal's decision breached s.359A of the Migration Act. In support of this ground, the First Applicant submitted that paragraph 49 of the Tribunal's decision set out earlier in this decision expressed concerns about the financial information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, but the Tribunal failed to comply with the obligations pursuant to s.359A to give the Applicants an opportunity to comment on the information.
It was argued that the decision of the Tribunal in paragraph 51, also set out earlier, indicates concern of the Tribunal relating to information of Quincy and how the Shanghai office reconciled payments to Quincy. It was submitted the Tribunal failed to comply with s.359A, to give the Applicants an opportunity to comment on the concern.
The further error identified by the First Applicant in the Tribunal's decision appears to be set out in paragraph 7 on page 4 of the First Applicant's affidavit, where the First Applicant claims the Tribunal breached s.379A of the Migration Act. It was argued that as the Tribunal had breached s.359A by not giving information to the First Applicant then the Tribunal had also breached s.379A dealing with the methods by which the Tribunal gives documents to a person. It is not necessary to refer in detail to the arguments raised in support of this ground.
As I understand it, the Applicants also sought to rely, in support of the second ground and perhaps generally a fourth argument that the Tribunal decision had breached the principles of natural justice and contravened s.353 of the Migration Act.
To assist the process, I was prepared to deem the First Applicant's affidavit to be an outline of submissions with the emphasis placed upon the four errors identified and set out above.
The First Respondent’s Submissions
The First Respondent submitted that in relation to what is described by the Applicant as the key issue, namely, whether the Applicant satisfies the criterion in clause 845.215 of the Regulations, and it was submitted after reference to paragraph 49 of the Tribunal's decision set out above that the words of clause 845.215 are clear and refer to the period of 12 months immediately preceding the making of the application, it was argued there is no dispute that the application was made on 27 February 2003 and that the Tribunal considered the relevant 12‑month period to be 12 months before that date.
The First Respondent referred to what I have described as the first attachment to the First Applicant's affidavit, which is the extract from the web site set out earlier in this judgment. It was submitted that that policy, whatever its source, is not relevant to the issue before the court.
Both parties were permitted to file additional submissions in relation to the document. The First Respondent confirmed that the document is an extract from the "Procedures Advice Manual 3" ("PAM3"). It was submitted that PAM3 is a companion to the Regulations and operates as a guideline policy document to assist in the administration of the Migration Act and the Regulations. I accept that submission.
It was submitted that it appears the document tendered by the First Applicant was an extract from the current version of PAM3 rather than from the version of PAM3 that applied at the time of the Applicants’ application for review, namely, 27 February 2003.
In any event, it was submitted and it is clear the Applicants’ reliance on the extract from PAM3, and in particular s.41.2, is misconceived. It was argued that s.41.2 of PAM3 refers to the need to identify a single date within the three months preceding the lodgment of a business skills visa application for the purpose of demonstrating the net value of the assets of the visa Applicant (and his or her spouse) so as to avoid double counting. It was argued that the context for this guideline is explained by s.41.1, which appears on the first substantive page of the extract. In s.41.1 there is a general criterion relating to "net personal and business assets" of the Applicant (together with the Applicant's spouse) that applies to all business skills visas. The guideline, it was submitted, in s.41.2, describes how to measure someone's assets for the purpose of that criterion. It was argued that it can be seen that the general criterion relating to net personal and business assets does not in any sense turn upon the state of affairs that prevailed in the "12-month period immediately preceding the making of the application". Accordingly, it was argued, the section from PAM3 extracted and relied upon by the Applicant has no relevance to the interpretation of that phrase in clause 845.215.
The First Applicant was also given the opportunity to file and serve additional submissions arising out of this point, and did so on 1 September 2006. Apart from challenging the claimed difference between the two versions of the PAM3, the First Applicant joined issue with the First Respondent's submissions and continued to rely upon PAM3. The First Applicant otherwise repeated her other submissions not strictly relevant to the reliance by her of attachment 1, which
I accept is a version of PAM3.
Reasoning
In my view, the First Respondent's submissions in relation to the key issue are correct. I can see no error in the interpretation by the Tribunal of clause 845.215. The words in that clause are clear in their meaning and cannot be modified or altered by reference to any version of PAM3. The Tribunal has then embarked upon its fact-finding mission based on the evidence before it, having regard to a proper interpretation of clause 845.215. It has, as submitted by the First Respondent, analysed the material for the correct 12-month period immediately preceding the making of the application, that is, in the 12-month period prior to the application being made on 27 February 2003. It has done so in a manner free of error.
In my view, the reference to PAM3 in the context of supporting a ground which suggests that the Tribunal has misinterpreted the criterion set out in clause 845.215 is misconceived and the ground should fail.
For the sake of completeness, it should also be noted that the First Respondent submitted that there is no impracticality or difficulty obtaining audited financial reports which match exactly with the 12‑month period preceding the application, as the application is filed on the day those reports are finalised. In the present case, it was noted that the special purpose audited accounts the First Applicant provided, were provided after the delegate made a decision and before the Tribunal made its decision. The opportunity, it is submitted, was available and it was simply a matter of seeking an auditor's report for the correct 12‑month period.
In the alternative, it was argued that even if the First Applicant's submissions were correct, namely, that the 12-month period should have been 12 January 2002 to 15 January 2003, then the Tribunal's decision would still be correct, as the requirement is that the First Applicant has at least $100,000 in value in the business throughout the 12-month period. The Tribunal, it was submitted, identified that as at 27 February 2002 the assets fell below the $100,000 mark.
In my view it is not necessary to consider the alternative argument, having regard to my earlier reasoning that the Tribunal has identified the correct period and made a finding reasonably open to it and free of error.
The First Respondent argued that the second ground set out above effectively seeks to agitate the suggestion that the wrong period of time has been used and argue that that constitutes denial of procedural fairness and natural justice. It was argued there is no error in the identification of the relevant period. Otherwise, reliance was placed on s.357A of the Migration Act (the equivalent version of which is found in s.422B dealing with refugee applications).
I accept that s.357A operates in the same manner as s.422B, and otherwise in this instance in any event there has not been any denial of natural justice. I am satisfied that in the alternative s.357A applies and that this ground should fail.
In relation to the claimed breach of s.359A of the Migration Act, it was submitted by the First Respondent and I accept that the Tribunal effectively relied upon special purpose financial statements and bank accounts, and specifically two accounts of Quincy, a Bank of China account in United States dollars and a Commonwealth Bank of Australia account. Reference was made to the material in the Court Book, and it was noted that s.359A(4)(b) applies, as all the information was given by the First Applicant for the purpose of the application, and hence no obligation arises under the section to communicate with the First Applicant and invite comment (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2).
In my view, the submissions of the First Respondent in relation to any alleged breach of s.359A, and by implication any claimed breach of s.379A, are correct. I am satisfied the information as described was provided by the First Applicant for the purpose of the application, and that s.359A(4)(b) of the Migration Act applies. Accordingly, any claimed error arising from a breach of s.359A or s.379A should fail.
Conclusion
It follows for the reasons given in considering the grounds that the application should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 December 2006
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