Xin v Minister for Immigration and Citizenship

[2007] FCA 703

FEDERAL COURT OF AUSTRALIA

Xin v Minister for Immigration and Citizenship [2007] FCA 703

MIGRATION – review of a decision of the Migration Review Tribunal to refuse a business visa – whether cl 845.215 of the Migration Regulations 1994 (Cth)

Migration Regulations 1994 (Cth), cl 845.215

Xin v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1925 referred to

SHUJIAO XIN & ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 28 OF 2007

MIDDLETON J
8 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 28 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SHUJIAO XIN
First Appellant

ZHU CHENG QIN
Second Appellant

CHRIS AO YA QIN
Third Appellant

YONG HENG QIN
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	8 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellants pay the first respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 28 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SHUJIAO XIN
First Appellant

ZHU CHENG QIN
Second Appellant

CHRIS AO YA QIN
Third Appellant

YONG HENG QIN
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	8 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Magistrates Court dismissing an application under the Migration Act 1958 (Cth) (‘the Act’) for judicial review of a decision of the second respondent (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellants a Business Skills (Residence) (Class BH) visa.

2. The first appellant (‘the appellant’), a citizen of the People’s Republic of China, applied for the relevant visa on 27 February 2003, with the other appellants (her spouse, daughter and stepson) relying on membership of the appellant’s family unit.

3. The delegate decided to refuse to grant the visas on 14 October 2003. The appellants sought review of that decision by the Tribunal and on 30 June 2005 the Tribunal affirmed the decision of the delegate. By application to the Federal Magistrates Court filed 23 August 2005, the appellants sought relief under s 39B of the Judiciary Act 1903 (Cth) against the Tribunal's decision. On 21 December 2006 the Federal Magistrates Court declined to grant relief.

4. The federal magistrate conveniently set out the relevant legislation in his reasons: see Xin v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1925 at [7]. For present purposes, the essential criterion for entitlement to the business visa is that set out in cl 845.215 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which provides:

   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.

5. On the basis of the application for a business visa, the appellant nominated Quincy Development Pty Limited (‘Quincy’), as the main business.

6. The Tribunal was satisfied that Quincy was a main business, and the first appellant had an “ownership interest” in Quincy. However the Tribunal found that the first appellant did not satisfy the criterion in cl 845.215. In applying the criterion in cl 845.215 the Tribunal identified the relevant period as being from 27 February 2002 to 27 February 2003, this being the “period of 12 months immediately preceding the making of the application”.

7. In determining the total value of the net assets owned by the appellant in the main business the Tribunal took into account that the appellant had a 49% shareholding in Quincy during the relevant period.  The appellant claimed that during the relevant period, Quincy owed her $61,000.  The Tribunal took this into account in determining the appellant's net assets in the business, in the sense that the debt owed by the business to the appellant was added to the value of the net assets of the business itself.  Based on the evidence as to the net assets of Quincy and taking into account the $61,000 debt owed by Quincy to the appellant, the Tribunal made preliminary calculations of the value of the appellant's net assets in Quincy, indicating at relevant times net assets over $100,000.

8. It was the financial records given by the appellant to the Tribunal through her representative that provided the framework and evidence for the Tribunal's findings as to the assets of Quincy. After making the preliminary calculations, the Tribunal identified four additional factors bearing on the valuation of Quincy's assets, including the need to adjust the “Cash at Bank” amount to more accurately reflect Quincy's position as at 27 February 2002. The Tribunal only needed to consider this factor, namely the need for an adjustment of the “Cash at Bank” figure, because making the adjustment meant that the appellant did not satisfy the criterion in cl 845.215.

9. The Tribunal undertook a calculation of the figures before it and, putting aside one trivial error which was in the appellant's favour, determined the adjustment necessary to be made to the “Cash at Bank” amount. 

10. The adjustment to the “Cash at Bank” figures to reflect the true position as at 27 February 2002 took the value of the total value of the appellant's net assets in Quincy well below $100,000. The Tribunal considered this sufficient to dispose of the application. Relevantly, cl 845.215 requires that the total value of the net assets owed by the visa applicant in the main business must have been at least $100,000 throughout the period of 12 months immediately preceding the making of the application. Accordingly, once the Tribunal had concluded that, as at 27 February 2002, the total value of the net assets held by the appellant in Quincy was less than $100,000, then on this analysis the appellant would not satisfy the criterion in cl 845.215.

11. Having identified a reduction in the assets below $100,000, the Tribunal went on to consider whether the deficit could be made up by some other asset.  However, the Tribunal concluded there was nothing to suggest that any such asset existed to lift the value of the appellant's holding back above $100,000.  The Tribunal noted that payments made to Quincy after 27 February 2002 could have no bearing on the question of the value of Quincy's on 27 February 2002.  It was thus not necessary for the Tribunal to elaborate on its concern about the other three factors that would otherwise have necessitated an adjustment to the figures, and it was unnecessary for the Tribunal to put a precise figure on the adjustments that it may otherwise have needed to consider.

12. The Tribunal, having concluded that the appellant did not satisfy the criteria for a business visa, necessarily determined that the members of the appellant’s family unit (the other appellants in this proceeding) were also not entitled to visas. 

13. The decision of the Federal Magistrates Court, which is the subject of this appeal, addressed the grounds identified in the appellant's application and also identified additional grounds raised in an affidavit filed by the appellant.  Having concluded there was no error on the part of the Tribunal, the Federal Magistrates Court dismissed the application. 

14. Before this Court, the notice of appeal identifies two grounds of appeal. The first ground is a bare assertion of legal error. The second ground asserts that an error was made by the Tribunal when it applied the criterion in cl 845.215, which was addressed by the Federal Magistrates Court.

15. I adopt the reasons of his Honour in relation to the second ground of appeal. The interpretation by the Tribunal of cl 845.215 was plainly correct, and the clause was properly applied. The Tribunal was not at large and had to apply the law as provided in the Regulations.

16. When the Act says that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act in accordance with the substantial justice and merits of the case (see s 353(2)), it does not mean the Tribunal can ignore the application of cl 845.215. In my view, having determined the correct interpretation of cl 845.215, the Tribunal then applied it correctly. The appellants had ample opportunity to present evidence to the Tribunal in the way they chose to satisfy the criterion set down by cl 845.215, and they failed to satisfy such criterion.

17. The Tribunal's function was to assess the evidence, and although it was of an accounting nature, there is nothing in the Tribunal's reasoning to indicate error.  On the contrary, the evidence before the Tribunal supports the analysis undertaken.  I do not consider that the trivial arithmetic error pointed out by the appellant in the Tribunal's reciting of a figure indicates an error of reasoning or analysis to justify the intervention of this Court.  The error involved the Tribunal making reference to an incorrect amount in the Commonwealth Bank account.  Specifically, the Tribunal noted:

    [A]s 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.

18. It would appear from the relevant Commonwealth Bank statement that the correct figure for 27 February 2002 was in fact $76,024.62 rather than $76,118.82.  However, in my view the error was of a trivial nature and was in any event in the appellant's favour.  But as I have said, the more important point is that it does not indicate a more substantial error of reasoning or analysis on the Tribunal's behalf. 

19. The Tribunal need not be comprised of members who are qualified accountants or auditors, as seems to be suggested by the appellants.  The Tribunal is entitled to act upon the evidence before it to reach a conclusion according to law.  In any event, in the way the Tribunal approached its task, I do not consider the conclusions reached depended upon any specific accounting expertise it needed to have itself. 

20. To the extent that the appellant wanted a further opportunity to address the material she presented to the Tribunal, it was incumbent upon her to explain or put in context the accounts or transactions which occurred, or to indicate where a document may be inconclusive or needed further elaboration.

21. If the appellant desired to place evidence before the Tribunal she could do so. I note that the appellant did introduce accounting evidence. I observe the Tribunal allowed on a number of occasions time for additional information to be provided. In the end, once the Tribunal came to the conclusion that the relevant period was 27 February 2002 to 27 February 2003, then on the evidence presented to it, it could not have been satisfied the appellant met the criterion set forth in cl 845.215.

22. In addition to the grounds of appeal, the appellant relied upon grounds which were in almost identical terms to grounds relied upon in the Federal Magistrates Court. Each of the discrete points raised (i.e. error of law and misapplication of cl 845.215, breach of s 353, breach of s 359A and breach of s 379A) were addressed by the Federal Magistrates Court. Subject to one qualification, I find no error in his Honour's reasoning or conclusions in this regard. I do observe that the mere fact that reference is made to information in the Court book or to information being given to the delegate (as distinct from the Tribunal) is not sufficient to establish compliance with s 359A. Here, it is clear that the Tribunal itself was given all of the information relied upon for the purposes of the application by the appellant or her representatives.

23. It is my view, therefore, that the appeal should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:       17 May 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	L Clegg
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 May 2007
Date of Judgment:	8 May 2007