Yu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

Case [2020] FCA 209

FEDERAL COURT OF AUSTRALIA

Yu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 209

Appeal from: Yu & Ors v Minister for Immigration & Anor [2019] FCCA 2690
File number: NSD 1705 of 2019
Judge: THAWLEY J
Date of judgment: 14 February 2020
Catchwords: MIGRATION – Business Owner visa – “Criteria to be satisfied at time of decision” – whether primary applicant required to satisfy criterion of “ownership interest” in “main business” at time of Administrative Appeals Tribunal’s review decision or whether it was sufficient that she satisfied the criterion at the time of the delegate’s decision – appeal dismissed  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 25(4), 43

Migration Act 1958 (Cth) ss 29(1), 31(1), 31(3), 45, 65(1), 134(10), 303(1), 304A, 306, 337, 338, 347, 348(1), 349

Migration Regulations 1994 (Cth) regs 1.03, 1.11(1), 1.15B, 2.01(1), 2.03, Sched 1, Sched 2, cll 866.221, 885.213, 890.2, 890.21, 890.211, 890.22, 890.221

Cases cited:

Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417

Kaur v Minister for Immigration & Border Protection [2016] FCA 937

Liang v Minister for Immigration and Citizenship (2009) 175 FCR 184

Minister of Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518

Pintos v Minister for Immigration & Multicultural Affairs [2001] FCA 1400

Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755

SFLB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1610

Shaikh v Minister for Immigration [2004] FMCA 116

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SZURL v Minister for Immigration and Border Protection [2015] FCA 864

Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121

Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301

Date of hearing: 14  February 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 75
Counsel for the Appellants: Mr AJ Greinke
Solicitor for the Appellants: Auyeung Hencent & Day Lawyers
Counsel for the First Respondent: Ms N Laing
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs

ORDERS

NSD 1705 of 2019
BETWEEN:

DAI YU

First Appellant

XINYUE YU

Second Appellant

QIANG BI

Third Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

14 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Revised from the transcript)

THAWLEY J:

OVERVIEW

  1. On 27 September 2019, the Federal Circuit Court of Australia (FCCA) dismissed the appellants’ application for judicial review of a…

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Details
AGLC
Yu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 209
Case
[2020] FCA 209
Decision Date

CaseChat Overview and Summary

In the case of Yu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs, the appellants sought judicial review of a decision by the respondent to refuse to grant them Business Owner visas under the Migration Act 1958. The primary issue before the court was whether the appellants were required to satisfy the relevant criteria at the time of the Administrative Appeals Tribunal’s review decision or whether it was sufficient that they satisfied the criteria at the time of the delegate's decision. The appellants argued that the phrase "Criteria to be satisfied at time of decision" in the relevant provisions referred to the delegate's decision, not the Tribunal's decision, and relied on the case of Shi v Migration Agents Registration Authority to support this argument.

The court considered the relevant statutory provisions and noted that courts have approached analogous provisions in a similar manner, treating the headings of criteria as substantive headings. The court also examined the legislative framework and found that the headings in the Migration Regulations were considered part of the regulations under the Acts Interpretation Act 1901. The court held that the appellants were required to satisfy the relevant criteria at the time of the Tribunal's decision on review, not just at the time of the delegate's decision. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

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

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 349 provides:(1)The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2)The Tribunal may:(a) affirm the decision; or(b) vary the decision; or(c)if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or(e)if the applicant fails to appear – exercise a power under section 362B in relation to the dismissal or reinstatement of an application.(3) If the Tribunal:(a) varies the decision; or(b) sets aside the decision and substitutes a new decision;the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.THE DELEGATE’S DECISION The first appellant sought to satisfy the requirements of cll 890.211 and 890.221 by reference to an “ownership interest” in two businesses: New Australia Agricultural Development Company Pty Ltd (NAADCO) and Elbelle’s Early Learning Centre Pty Ltd (Elbelle). The delegate concluded that the first appellant did not satisfy cl 890.211(1) in relation to Elbelle because she had not had an “ownership interest” in that company for at least two years before she applied for the visa. In relation to NAADCO, the delegate concluded that it was not a “main business” of the first appellant – cf: reg 1.11(1)(b). The delegate concluded that, at the time of his decision, the first appellant had not maintained, during the two years immediately before the visa application, continuous involvement in the management of NAADCO’s business from day to day, or made decisions affecting the overall direction and performance of the business. Whilst the appellant had held an “ownership interest” in NAADCO for at least two years before the visa application, it was not an interest in a “main business”. Accordingly, the delegate concluded that the first appellant did not satisfy cl 890.211(1). On 28 October 2015, the delegate refused to grant the visa.THE TRIBUNAL On 6 November 2015, the appellants applied to the Tribunal for review of the delegate’s decision. Having considered additional evidence put before it, the Tribunal concluded that, at the time of application, NAADCO did meet the definition of “main business” in cl.890.211: T[30]. If the additional material before the Tribunal had been before the delegate, and if NAADCO had remained a “main business” in relation to the first appellant at the time of the delegate’s decision, the correct or preferable decision on those findings was for the visa to have been granted. However, because the first appellant did not continue to hold her interest in NAADCO at the time of the Tribunal’s decision, the Tribunal concluded that the first appellant did not satisfy cl 890.221: T[31]. The Tribunal therefore affirmed the delegate’s decision to refuse to grant the visa: see s 349(2).

Ratio Decidendi

Legal Principle Established

In addition to submitting that the word “decision” in the phrase “time of decision” in cl 890.22 was a reference to the delegate’s decision and not also the Tribunal’s decision, the appellant relied on Shi v Migration Agents Registration Authority (2008) 235 CLR 286 to submit that the Tribunal could or should only consider the material as it was when the decision was before the delegate. CONSIDERATION Although there are seven grounds of appeal, the central issue is whether cl 890.221 provides a criterion which must be satisfied when the Tribunal makes its decision on review, or whether it is sufficient that the relevant visa applicant held the necessary ownership interest at the time of the delegate’s decision. As noted earlier, the primary judge stated that the words “Criteria to be satisfied at time of decision” did not constitute a heading. Although neither party referred to this line of authority, it should be noted that Courts have approached the construction of analogous provisions of Schedule 2 to the Regulations on the basis that those words are a heading. This was the approach of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 at [15], [17], [26] (French CJ, Gummow and Crennan JJ). It was the approach of the Full Court of this Court in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 at [2] (Dowsett J); at [8], [21] (Robertson J); at [41], [50]-[52] (Griffiths J). It was the approach of Katzmann J in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 at [21]. It is not clear that, in any of those cases, any party contended that the relevant words were not a heading. In Berenguel, a “time of application” criterion required the visa applicant to have “vocational English” or “competent English”. Regulation 1.15B provided that a person had “vocational English” if the applicant satisfied the Minister that he or she had achieved a certain International English Language Testing System test score “conducted not more than 2 years before the day on which the application was lodged”. The applicant lodged his application form on 21 April 2008, crossing the box “You have booked an English language test – provide details” and identified the “Date of booking” as 10 May 2008. The applicant undertook the test and obtained a satisfactory result. He provided the result to the department on 7 June 2008. On 12 December 2008, a delegate refused the application on the basis that the applicant had not provided a test result conducted not more than 2 years before the application. The High Court explained at [15] the significance of the heading:… By virtue of s 13(1)(a) of the Legislative Instruments Act2003 (Cth), where enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears, the Acts Interpretation Act1901 (Cth) applies to the instrument “as if it were an Act and as if each provision of the legislative instrument were a section of an Act”. The Migration Regulations fall within the definition of “a legislative instrument” in ss 5 and 6 of the Legislative Instruments Act. This will attract to them the application of s 13 of that Act. The headings of the Parts, Divisions and Subdivisions into which an Act is divided are deemed to be part of the Act [Acts Interpretation Act, s 13(1)]. Every schedule to an Act is deemed to be part of it [Acts Interpretation Act, s 13(2)]. So Sched 2 to the Migration Regulations is “part of” those regulations. Thus, the criteria designations appearing as headings, not otherwise defined, in Sched 2 may be taken as “part of” the Migration Regulations. There is no provision otherwise giving substantive operation to the headings in which the designations appear. Nor are they otherwise defined.