Yu v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1477
•16 NOVEMBER 2004
FEDERAL COURT OF AUSTRALIA
Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1477
MIGRATION – visas – refusal to grant business skills visa – whether the Migration Review Tribunal failed to address the question as to whether the visa applicant and his wife had legal ownership of company shares that constituted ‘ownership interest’ for the purposes of reg 1.03 of the Migration Regulations 1994 – whether beneficial ownership as comprehended by reg 1.11A of the Migration Regulations 1994 is not relevant where legal ownership is proved according to foreign law – whether reg 1.11A of the Migration Regulations 1994 is an invalid regulation
Statutes
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 4, 65, 504, 31(3), 40, 134(10), 65(1), 504(1), 474, 31(1)
Cases
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 Cons
Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 Cited
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Cons
Shanahan v Scott (1957) 96 CLR 245 Cons
South Australia v Tanner (1989) 166 CLR 161 Cons
The Commonwealth v Tasmania (1983) 158 CLR 1 Cons
Williams v Melbourne Corporation (1933) 49 CLR 142 Cons
Other Authorities
BA Garner, A Dictionary of Modern Legal Usage, 2nd edn, Oxford University Press, New York, 1995
Black’s Law Dictionary, 8th edn, ed BA Garner, West Group, St Paul, MN, 2004
Butterworths Australian Legal Dictionary, gen eds PE Nygh & P Butt, Butterworths, Sydney, 1997
ZHI QIANG YU, WEN CHUN LI & LING (CATY) YU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL
Q167 OF 2003KIEFEL J
BRISBANE
16 NOVEMBER 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q167 OF 2003
BETWEEN:
ZHI QIANG YU, WEN CHUN LI & LING (CATY) YU
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
KIEFEL J
DATE OF ORDER:
16 NOVEMBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application be dismissed.
2.The applicants pay the first respondent’s costs of the application, including any reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q167 OF 2003
BETWEEN:
ZHI QIANG YU, WEN CHUN LI & LING (CATY) YU
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
KIEFEL J
DATE:
16 NOVEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application brought pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to a decision made by the Migration Review Tribunal (‘the Tribunal’) dated 3 October 2003. The Tribunal affirmed the decision under review by it, to refuse the grant of a Business Skills (Residence) (Class BH) visa to the visa applicant Mr Zhi Qiang Yu. Included in that application were his wife, Wen Chun Li and child Ling Yu. Another child Fei Yu was originally joined in the application but later withdrew from it.
STATUTORY PROVISIONS
The object of the Migration Act 1958 (Cth) (‘the Act’) is stated in s 4:
‘(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.’
Section 65 provides that visas may be granted. Section 504 contains the general power to make regulations. It empowers the making of regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class and s 40 provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
The prescribed classes are those set out in the items in Schedule 1 and two other classes: reg 2.01(a), Migration Regulations 1994. Regulation 2.02 provides for subclasses in Schedule 2. A Part of Schedule 2 is said to be relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem ‘Subclasses’ in the item in Schedule 1 that refers to that class of visa: reg 2.02(2). Regulation 2.03(1) provides:
‘Criteria applicable to classes of visas
(1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:
(a)the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.’
Regulation 2.04 provides that:
‘For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.’
At the time of the application Item 1104A of Schedule 1 prescribed the class of ‘Business Skills (Residence) (Class BH)’. Item 1104A(4) listed subclasses, including that relevant to the present case: ‘844 (Investment-linked)’. Clause 844.214(2) of Schedule 2 required that:
‘Throughout at least 1 of the 5 fiscal years immediately preceding the making of the application:
(a)the applicant maintained direct involvement in managing a qualifying business in which:
(i)the applicant; or
(ii)the applicant and his or her spouse together;
had an ownership interest of at least 10% of the total value of the business; or
(b)the applicant maintained direct involvement in managing eligible investments of:
(i)the applicant; or
(ii)the applicant and his or her spouse together;
the total net value of which was at least AUD1,000,000.’
Clause 844.214(3) required that:
‘The total net value of the assets owned by:
(a) the applicant; or
(b) the applicant and his or her spouse together;throughout the 2 fiscal years immediately preceding the making of the application was at least 50% more than the value of the funds to be deposited in the designated investment in the name of the applicant, or in the names of the applicant and members of his or her family unit, as the case requires.’
‘Fiscal year’, in relation to a business or investment, was defined by reg 1.03 to mean:
‘(a)if there is applicable to the business or investment by law an accounting period of 12 months - that period; or
(b)in any other case - a period of 12 months approved by the Minister in writing for that business or investment;’
Regulation 1.03 provided that ‘ownership interest’ had the meaning given to it in subsection 134(10) of the Act. In relation to a business it meant an interest in the business as:
‘(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts.’
For the purposes of clause 844 of Schedule 2 a beneficial ownership could only be included as an ownership interest if certain evidentiary requirements were met. Regulation 1.11A provided:
‘Ownership for the purposes of certain Parts of Schedule 2
(1)Subject to subregulation (4), for Parts 127, 128, 129, 130, 131, 840, 841, 842, 843, 844, 845 and 846 of Schedule 2, ownership by an applicant, or the applicant’s spouse, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).
(2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:
(a)a trust instrument; or
(b)a contract; or
(c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse, as the case requires, in relation to the asset, eligible investment or ownership interest;
stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.
(3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.
(4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse, has beneficial ownership:
(a)is a dependent child of the applicant; and
(b)made a combined application with the applicant; and
(c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.’
THE TRIBUNAL DECISION
The business in which the visa applicant claimed an ownership interest was Shenyang Tian Rong Irradiating Technical Application Co Ltd (‘Shenyang Co’). He and his wife were said to own 50 per cent each of the shares in the company pursuant to an agreement with his cousin Ms Lin Su Fang (also called Nucharree Yingsittisawat or Yingsitthisawat). Under the regulations they needed to show that they owned at least 10 per cent of the total value of the business. They also needed to establish that throughout the two fiscal years immediately proceeding the date of the application, 30 September 1997, they had a total of AUD$1.5m in net assets, AUD$1m being the amount said to have been deposited in a designated investment.
The applicants failed in their application because the Tribunal found that they did not have legal or beneficial ownership in Shenyang Co for any fiscal year prior to the date of their application. The shares were retained by the company Tian Yong Industrial Enterprise, or Tian Yong Industrial Co Ltd (‘Tian Yong Industrial’) in which the cousin had an interest.Because of its findings as to evidence of ownership in Shenyang Co, the Tribunal did not proceed to consider the value of the company.
In the visa application it was said that Shenyang Co was involved in the:
‘application & development of radiating processing technologies, manufacture of water-absorbing materials, adhesive-bonded fabric products and super-fine powder of polymer, processing of bio-products and radiation preserved products.’
The Tribunal recorded that the visa applicant had claimed that Shenyang Co was established in 1990 by his cousin, who was the legal representative of Tian Yong Industrial, in a joint venture with a Chinese party in which Tian Yong Industrial owned 70 per cent of Shenyang Co. The visa applicant was appointed as a general manager of Shenyang Co. On 15 December 1991 the Chinese party (who was not identified) disposed of its interests including its shares in the company to Tian Yong Industrial which then set up the business as a wholly owned foreign company operating in China.
The visa applicant claimed that in 1992 Ms Lin agreed to transfer all the Tian Yong Industrial shares in Shenyang Co to the visa applicant and his wife in equal shares. He said that Shenyang Co was a high technology business, of which she had little knowledge. It was running at loss and his cousin did not wish to keep investing in it. He said however that legally Ms Lin owned the company but in reality it was ‘entrusted’ to himself and his wife. At another point it was explained that legal ownership was retained by Tian Yong Industrial. Ms Lin had a 25 per cent shareholding in that company. The visa applicant said that he then registered a new SOFE (Solely Owned Foreign Enterprise) on 30 April 1992, using the same business name of Shenyang Tianrong. Ms Lin was recorded as the legal representative and the investor name was recorded as Thailand Tian Rong, a reference to Tian Yong Industrial.
The oral agreement of 1992 between the visa applicant and Ms Lin was not recorded. He said that they felt it was unnecessary to do so because they were cousins. It was not necessary, he said, to be registered or documented. He said that there were some advantages in having Shenyang Co registered as a foreign company in China, including tax advantages if the company made a profit and that ‘in order to enjoy the benefit from the taxation side, I have not changed the legal name of the company.’
Ms Lin confirmed the agreement in her evidence. She said that it was her intention to give the company to the visa applicant and his wife. She said that the shares of Shenyang Co were owned by Tian Yong Industrial. Tian Yong Industrial had stopped operations but still existed and she was one of several owners, as to 25 per cent. She was asked how she could transfer ownership of the Shenyang Co shares if she had only 25 per cent of the shares in Tian Yong Industrial. She said that she was president of the latter company and had been given authority to deal with the shares.
The Tribunal was provided with some documentation, produced some time after the agreement in question, and some legal opinions concerning the efficacy of the arrangement between the visa applicant and Ms Lin.
The Tribunal recorded that Ms Lin had made a declaration dated 24 April 1997 in which she stated that Tian Yong Industrial had held the shares of Shenyang Co for other investors since Shenyang Co was established and that the visa applicant and his wife each had a 50 per cent beneficial interest in the company.
The visa applicant also provided a certificate to the Tribunal from the Economic & Trade Bureau of The Economic & Technological Development Zone, Shenyang, dated 18 March 1998 which attested that:
‘Ms. Lin Sufang, the legal representative of Thailand Tianrong Industry and Shenyang Tianrong Radiation Technology Application Co., Ltd. declared in Apr. 24th 1997 that Mr. Yu Zhiqiang and Ms. Li Wenchun own all of shares in Shenyang Tianrong Radiation Technology Application Co., Ltd since the enterprise was established in 1992.
We assure the declaration is legal and effective.’The company seal of Shenyang Co was attached to the document which the Tribunal considered was still in the hands of Ms Lin Sufang.
In a submission dated 16 August 2002 there was included an opinion from a registered attorney in China of 3 January 2000 stating that the ‘legal statement’ by Ms Lin Sufang and the ‘certificate’ issued by the Economic & Trade Bureau of Shenyang complied with the relevant laws of China. The opinion went on to discuss the timing of the transfer of shares in Shenyang Co between the original owner and the visa applicant:
‘…because the transfer was one for nil consideration, the time of the share transfer of [Shenyang Co] should be when the parties involved reached an agreement regarding the transfer.
…
An oral agreement is legally valid in China. This agreement was formed in 1992. Therefore the shares of wholly foreign-own [Shenyang Co] were transferred in full to [the visa applicant and his wife] in 1992.’
In relation to the recording of the transfer the Attorney’s opinion said:
‘According to documents such as Trading Permit and Certificate of Trading, the registration details of [Shenyang Co] to date have never been altered.’
It then proceeded to discuss why the transfer was an ‘internal activity among its own members’ and said that there was no requirement under Chinese law for the company to seek authorisation or ratification from the Chinese authorities.
A further document was provided to the Tribunal. It was said to be minutes of a general meeting of shareholders of Tian Yong Industrial held on 25 March 1990 in which the meeting authorised Ms Lin Sufang to enter into a joint venture to the extent of 70 per cent and to otherwise deal with the Shenyang Co group of companies. A further document, said to be legal advice from a lawyer in Thailand, said that the minutes of the general meeting were sufficient to give her authority to transfer ownership of Shengyeng Tian Yong.
A further legal advice from a licensed lawyer in the People’s Republic of China was said by the Tribunal to be ‘premised on an oral agreement between Mrs Lin and the visa applicant’s being made in February 1992’ and such an oral contract being binding on the parties, although Ms Lin was acting on behalf of Tian Yong Industrial. The advice was to the effect that ‘It should not be concluded that Thailand Tian Yong is the owner of Shenyang Tianrong just because the registration documents show it as the owner’.
The Tribunal noted that the visa applicant and his cousin were both agreed that legal ownership of Shenyang Co was retained by Tian Yong Industrial and that their claims to ownership depended upon a verbal agreement. The Tribunal then proceeded to consider whether there was evidence of beneficial ownership, as required by regulation 1.11A and found that there was not.
The Tribunal put to one side its concerns as to the identity of the companies referred to in the minutes of the general meeting of Tian Yong Industrial in 1990, but found that they only appeared to authorise the visa applicant’s cousin to deal with a joint venture in China and not the arrangement with him two years later. There was no other evidence of transfer or ratification. It did not accept that the document demonstrated that beneficial ownership of Shenyang Co passed from Tian Yong Industrial to the visa applicant and his wife.
The earliest document recording the agreement was the declaration of 24 April 1997, but it was ‘made’ only five months prior to the application. I take this to refer to the stamping of the declaration for the purposes of reg 1.11A(3). The document did not satisfy the requirements of reg 1.11A. In the view of the Tribunal the evidence of legal opinions as to the binding and effective nature of the agreement under Chinese law were irrelevant. It concluded by finding that the applicants did not hold legal or beneficial ownership in Shenyang Co. Clause 844.214(2) was not satisfied.
GROUNDS FOR REVIEW
The grounds for review were summarised by the applicant as follows:
1.The Tribunal misconstrued the true meaning and effect of the definition of ‘ownership interest’ in reg 1.03, and in so doing asked itself the wrong question or failed to ask itself the right question and/or constructively failed to exercise the jurisdiction vested in it pursuant to s 65(1) of the Act.
2.In the alternative, the Tribunal misconstrued the true meaning and effect of reg 1.11A and in so doing asked itself the wrong question and/or failed to ask itself the right question and/or constructively failed to exercise its jurisdiction pursuant to s 65(1) of the Act.
3.In the alternative, regs 1.11A(2) and (3) are not valid exercises of the regulation-making power reposed in the Governor-General by s 504(1) of the Act.
GROUNDS 1 AND 2
It may be accepted that if a Tribunal misdirects itself as to the question posed for it by the statute, properly construed, it falls into jurisdictional error: Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 at 351; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at [43]. The latter case involved the misconstruction of the criteria for the grant of a subclass of visa. The Court pointed out that the effect of that error was that, subject to considerations of the privative clause section, s 474, the Minister had not done that which the Act requires him to have done and the decision would be a purported decision of no legal effect.
The applicants’ essential submission on both grounds was that the Tribunal did not address the question as to whether the visa applicant and his wife had legal ownership of the shares in question and considered only the question as to whether beneficial ownership was proved. They also contend that the Tribunal misunderstood the opinions as to the legality and efficacy of the agreement in China.
The question which arises on the applicants’ case is whether reg 1.11A applies, which is to say, whether they were merely beneficial owners as distinct from legal owners.
The words ‘beneficial ownership’ have a specialised legal meaning consisting in a right that is derived from something, such as a contract or an expectancy, other than legal title: BA Garner, A Dictionary of Modern Legal Usage, 2nd edn, Oxford University Press, New York, 1995. In the context of a company the notion of a beneficial owner is applied to the person whom equity recognises as the owner of the shares and the person able to deal with them, but who does not hold the legal title because the shares are registered in the name of another: Black’s Law Dictionary, 8th edn, ed BA Garner, West Group, St Paul, MN, 2004; Butterworths Australian Legal Dictionary, gen eds PE Nygh & P Butt, Butterworths, Sydney, 1997. Regulation 1.11A should be understood to refer to beneficial ownership in these senses.
Clearly the applicants fall into the category of beneficial owner referred to above. The shares might be considered to be held in trust for them, but that identifies them as beneficial and not legal owners.
The applicants’ argument is to the effect that beneficial ownership as comprehended by reg 1.11A, or indeed the regulation itself, is not relevant where legal ownership is proved according to foreign law. Such an approach would cut across the very objects of the regulation and must, in my view, be rejected.
Regulation 1.11A has the effect of excluding from an applicant’s assets claims to ownership which cannot be substantially proven by reference to authenticated documents. Claims to beneficial ownership are easily made. There may often be little or no documentation of the contract or other arrangement which is said to create the ownership interest, leaving the decision-maker to determine the veracity of a claim based upon an oral arrangement with no objective evidence to assist that determination. And when documentation is provided it may be difficult to assess its authenticity. In the context of migration and visa applications there are added difficulties for the decision-maker in verifying documents put forward, since they may be in a foreign language or reflect aspects of a foreign legal system. It is these difficulties which the regulation addresses.
The circumstances pertaining to the applicants’ ownership of the shares are the very circumstances to which the regulation is addressed. The applicants’ contention must be that there should be an exemption to reg 1.11A(2) where it is proved that applicants are the legal owners of an asset under foreign law even though they have no legal title. The purpose and operation of the regulation does not admit of such an exception. If the contention were correct a decision-maker would be required to undertake tasks which the regulation sought to obviate.
Although strictly unnecessary, I add that the applicants’ evidence concerning the operation of Chinese law did not go so far as to establish the applicants’ legal ownership of the shares, in any event. Nowhere was it said that Chinese law regarded the applicants as holding legal title. The evidence was merely that no formal registration or approval was required. The agreement between the visa applicant and his cousin would be regarded as effective and, one may infer, enforceable. That is not sufficient to establish legal ownership. As far as the evidence went it suggests that the concept of a beneficial ownership is recognised and enforced by Chinese law.
The Tribunal was correct in finding the opinions as to Chinese law irrelevant, given the operation of reg 1.11A. It correctly applied the requirements of that regulation. No error is shown in the approach it took.
GROUND 3
The jurisdictional error identified under this ground is the application by the Tribunal of an invalid regulation, reg 1.11A. It is submitted that it is invalid because it is so unreasonable that it could not be regarded as having been contemplated by the legislature in passing the Act which enables the making of the regulations. Alternatively the regulation is not reasonably proportionate to the empowering provisions of the Act. A further submission, of uncertainty of the regulation, is no longer pursued.
In South Australia v Tanner (1989) 166 CLR 161 at 165, the majority accepted the proportionality tests of validity propounded by Deane J in The Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case) and by Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142, which were respectively ‘whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose’ and ‘in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose’.
In Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Gummow J took the majority in South Australia v Tanner to apply the test as elaborated upon by Dixon J in Shanahan v Scott (1957) 96 CLR 245 at 250, which his Honour summarised as follows (at 577-578):
‘A power …does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power.’
The applicant’s argument based upon unreasonableness is that the regulation goes beyond the regulation-making power. ‘Unreasonableness’ in this context requires that the regulation be so oppressive and capricious that no reasonable mind could justify it.
The starting point of any consideration of the validity of regulations is to determine the ‘true nature and purpose of the [regulation-making] power’: Williams v Melbourne Corporation at 155, South Australia v Tanner at 164. The effect of s 31(1) and s 40 of the Act is that the regulations may prescribe the criteria which must be met by a visa applicant before a visa can be granted. Regs 2.03(1) and 2.04 then provide that the criteria which must be met are those in Schedule 2, which includes cl 844.214(2)(a). These regulations are not challenged by the applicants, nor is the requirement prescribed by cl 844.214(2)(a), which clearly enough is directed to the need for an applicant for a visa of the kind in question to have business skills derived through ownership and management of a business.
It is difficult to see how reg 1.11A could be regarded as invalid if the regulations referred to above are not. On one view reg 1.11A facilitates a determination as to whether the requirement, of ownership of a business interest, is satisfied. It permits its ascertainment by requiring documentary proof of ownership to be produced by an applicant. It eliminates the uncertainties and difficulties with which a decision-maker may be faced when claims to ownership based upon oral transactions or documentation of unknown authenticity are produced. Even if the regulation were regarded as having the effect of further defining the requirement of ownership, it could not be said to be unreasonable or as going beyond the regulation-making powers.
The applicants submitted that it may be seen to go beyond what was necessary and, I infer, to be oppressive, because in many jurisdictions there will be no provision for the stamping and registration of such documents. The regulation would deny the legal efficacy of a document considered effective by the laws of another country.
I put to one side any difficulties there may be in what is required by the words ‘stamped or registered by an appropriate authority’, which was not the subject of argument. The latter contention mistakes the purpose and effect of reg 1.11A(2). The regulation acknowledges that a document will be regarded as effective, if it is stamped or registered. What it does deny is the efficacy of a document not the subject of that degree of official recognition.
The applicants’ submission concerning the lack of registration and facilities in other countries was without factual foundation. The evidence as to Chinese law did not include any statement that stamping or registration could not be obtained. It said that an internal company transaction did not require official ratification or approval. There was no evidence concerning any other country. In any event if the effect of reg 1.11A is that some persons would be unable to establish the requisite ownership interest and therefore fail to satisfy the criterion for a visa, it does not follow that the regulation is not proportionate to the regulation-making power which is the specification of criteria for particular classes of visa. This is so whether one views it as an evidentiary provision, facilitating that objective, or as further qualifying the ownership interests which will be recognised.
There is no substance in the contention that the regulation is unreasonable. None of the regulations referred to in Shanahan v Scott are present. The regulation is not invalid for lack of proportionality. The regulation denies the effect of oral agreements or unreliable documentation. It does so for the reasons discussed above. It could not be suggested that it was unreasonable in doing so, nor that it goes beyond the purpose of specifying the conditions which must be met for a visa to be granted.
CONCLUSION
No error is shown in the Tribunal’s reasons. The application will be dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 16 November 2004
Counsel for the Applicants: Mr P G Bickford Solicitor for the Applicants: Stephens & Tozer Lawyers Counsel for the First and Second Respondents: Mr S Lee Solicitor for the First and Second Respondents: Blake Dawson Waldron Date of Hearing: 3 June 2004 Date of Judgment: 16 November 2004
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