Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 656
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 656
File number: PEG 115 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 16 August 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decisions to cancel Business Skills – Business Talent (Migrant) (Class EA) (Subclass 132) visas – whether Tribunal misinterpreted or misapplied s 134 of the Migration Act 1958 (Cth) – whether Tribunal misunderstood terms ‘business’, ‘eligible business’ and ‘genuine effort’ – whether Tribunal failed to understand that it had a broad residual discretion not to cancel the applicants’ visas – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 134, 476, 477 Cases cited: BOO17 v Minister for Home Affairs (No 2) [2019] FCA 329
Chun Hou Lu v Minister for Immigration and Citizenship (2009) 112 ALD 125; [2009] FMCA 891
Essof v Minister for Immigration and Citizenship [2009] FMCA 13
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304; [2004] FCA 31
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Shead v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 479; [2001] FCA 933
Weng v Minister for Immigration and Citizenship (No 2) (2011) 121 ALD 77; [2011] FCA 444
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of hearing: 25 January 2022 Place: Perth Counsel for the Applicants: Mr L Boccabella Solicitor for the Applicants: MCA Lawyers & Migration Agents Counsel for the First Respondent: Mr J D Byrnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 115 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHIMIN ZHANG
First Applicant
ZHIYING XU
Second Applicant
XINSONG ZHANG
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) on 3 June 2021. The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 29 April 2021. The Tribunal affirmed an earlier decision made by a delegate of the Minister to cancel the applicants’ Business Skills – Business Talent (Migrant) (Class EA) (Subclass 132) visas (visa) pursuant s 134(1) of the Migration Act.
Section 134 confers on the Minister a discretion to cancel a business skills visa held by an applicant if the Minister is satisfied that the applicant has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business, or does not intend to continue to hold a substantial interest in and utilise his or her skills to actively participate at a senior level in in the day-to-day management of an eligible Australian business. However, a person’s business skills visa must not be cancelled if the Minister is satisfied that the person had made a genuine effort to obtain a substantial ownership in and use his or her skills in the day‑to‑day management of the business and intends to continue to make such genuine efforts.
The application before the Court contains nine grounds of review, of which five were pressed at hearing. The five grounds that were pressed allege that the Tribunal:
(a)misinterpreted or misapplied s 134 of the Migration Act;
(b)misinterpreted or misapplied the term ‘business’ as used in s 134;
(c)made a decision that was unreasonable;
(d)miscarried the exercise of its discretions in s 134; and
(e)did not conduct a proper review in accordance with Divisions 3 and 4 of Part 7 of the Migration Act.
For reasons explained below, I have found that the applicants have not established jurisdictional error in the Tribunal decision. It follows that the application to the Court is dismissed.
BACKGROUND
The applicants are non-citizens who were granted the visas on 4 August 2016. The first applicant was the primary visa applicant and the second and third applicants, who are the spouse and adult son of the first applicant, were included in the application as members of the same family unit.
On 30 July 2018 the Minister’s Department sent correspondence to the first applicant requiring him to complete a Survey of Business Skills Visa Holders (Form 1010). The correspondence advised the first applicant that the information he provided in the survey would be used to assess whether he had obtained a substantial ownership interest in an eligible business in Australia, was actively participating at a senior level in the day-to-day management of that business, intended to continue operating such a business and had made genuine and ongoing efforts to engage in eligible business activity.
On 4 September 2018 the applicants, through their migration agent, sent an email to the Department attaching a completed Form 1010 and other supporting documents.
On 14 March 2019 the Minister’s Department sent further correspondence to the applicants requesting that they provide additional information relevant to whether the first applicant had:
(a)obtained a substantial ownership interest in an eligible business in Australia;
(b)utilised his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia; and
(c)demonstrated that he intended to continue to hold a substantial interest in an eligible business and utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
The applicants provided information to the Department in response to this correspondence on 15 July 2019.
On 18 July 2019 the Minister’s Department sent to each of the applicants a Notice of Intention to Consider Cancellation (NOICC) of their visas. The NOICC directed to the first applicant stated that there appeared to be grounds for cancellation of the first applicant’s visa under s 134(1) of the Migration Act and invited him to comment within 28 days after the notice was given. The NOICCs directed to the second and third applicants stated that there appeared to be grounds for cancellation under s 134(4) of the Migration Act and invited them to comment within 28 days.
On 15 August 2019 the applicants provided a submission and other documents in response to the NOICCs.
On 21 October 2019 a delegate of the Minister made decisions to:
(a)cancel the first applicant’s visa pursuant to s 134(1) of the Migration Act; and
(b)cancel the second and third applicants’ visas pursuant to s 134(4) of the Migration Act.
On 24 October 2019 the applicants lodged with the Tribunal an application for review of the delegate’s decisions.
The applications were heard together at hearings convened by the Tribunal on 16 November 2020 and 11 February 2021.
The Tribunal affirmed the decisions under review on 29 April 2021.
TRIBUNAL DECISION
The Tribunal identified the following determinative issues in the review:
(a)
whether the first applicant’s identified business interests satisfied a condition under
s 134(1) to trigger the discretion to cancel the visas; and
(b)
if one of those conditions was met, whether the conditions required for the bar under
s 134(2) were met; and
(c)
even if the bar under s 134(2) did not apply, whether the residual discretion under
s 134(1) not to cancel the visas should be exercised; and
(d)if the Tribunal found that the first applicant’s visa should be cancelled, whether the cancellation of the second and third applicants’ visas would result in extreme hardship.
Whether the first applicant’s business interests satisfied a condition under s 134(1) to trigger the discretion to cancel the visas
Bookara Beach Resort
It was not in dispute before the Tribunal that the applicant acquired in 2014 and continued to hold a 49.24% interest in Bookara Beach Resort Development No 3 Pty Ltd (Bookara Beach Resort).
The Tribunal held that the Bookara Beach Resort could not, at the time of its decision, be considered a ‘business’, eligible or otherwise, as it lacked the characteristics of a commercial enterprise or going concern. It was best characterised as a long-time stalled, prospective property development. The Tribunal noted that for the seven years the first applicant has held an interest in the land, only one prospective investor had been identified and there was no binding agreement with that potential investor. The Bookara Beach Resort was still $35-$40 million away from being anything other than a possibility.
The Tribunal could not form a reasonable belief that the Bookara Beach Resort was resulting in, or would result in, any one of the consequences set out in the definition of an ‘eligible business’ under s 134(10) of the Migration Act. The Tribunal also found that the evidence presented by the applicants did not establish that the first applicant was utilising any particular skills in actively participating at a senior level in the day-to-day management of the business, and there was simply no business in a relevant sense to be managed on a day-to-day basis or otherwise. The Tribunal concluded in relation to the Bookara Beach Resort that a condition for visa cancellation under s 134(1) of the Migration Act existed.
The business of compiling a real property portfolio
The applicants identified six properties in their portfolio with two owned by the first applicant, three owned by the second applicant, and one owned by the third applicant. The Tribunal found that the applicants did not present sufficient evidence that the purchases of the properties would result in the creation or maintenance of employment in Australia. The Tribunal also found that there was no evidence that any of the other outcomes in the definition of eligible business would occur from the portfolio. The Tribunal found that the purchase of six properties by the three applicants did not have the necessary characteristic of ‘a commercial enterprise or going concern’ to be considered a business. The Tribunal found that the applicants’ business of compiling a real property portfolio was not an eligible business, and that there was no evidence as to the first applicant’s involvement in the day-to-day management of the business. The Tribunal concluded that a condition for visa cancellation under s 134(1) of the Migration Act therefore existed.
The wine business
The applicants submitted to the Tribunal that through a company called Round and Round Pty Ltd, a wine exporting business had been established, a wine export licence had been approved and a first shipment was in a port in Melbourne awaiting export. The Tribunal was not satisfied that the evidence before it established that the claimed wine business was an eligible business as there was no evidence to support a reasonable belief that the claimed business was resulting in, or would result in, one or more of the consequences required by the definition of eligible business under s 134(10) of the Migration Act. The Tribunal was also not satisfied that the first applicant was actively participating in the day-to-day management of that claimed business, finding that all that the first applicant’s evidence established was that there was a single, unsuccessful attempted shipment of wine to China. The Tribunal was therefore not satisfied that this constituted a business, let alone an eligible business, and was satisfied that a condition for visa cancellation under s 134(1) of the Migration Act existed.
The aborted supermarket venture
The first applicant gave evidence to the Tribunal that in January 2020 he signed an offer to purchase a supermarket and paid a 10% deposit. He decided not to proceed with the purchase due to the COVID-19 pandemic and after negotiations with the vendor the sale was cancelled. The Tribunal found that the aborted purchase of a supermarket did not, of itself, qualify as an eligible business and was satisfied that a condition for visa cancellation under s 134(1) arose. The applicants relied on this transaction for the purposes of a bar under s 134(2) of the Migration Act. The Tribunal found that the evidence presented by the applicants did not establish that the conditions of each of the subsections of s 134(2) were met and rejected the contention that the aborted purchase of the supermarket invoked the bar under s 134(2) of the Migration Act.
The toilet paper business
The applicants’ submissions to the Tribunal referred to an ‘experimental transaction’ of the import of a container load of toilet paper at a time when there was an apparent shortage of toilet paper. The witness statements before the Tribunal did not refer to any business or proposed business involving the importation of toilet paper and there did not appear to be documents relating to this claimed business before the Tribunal. The Tribunal found that a condition for visa cancellation under s 134(1) of the Migration Act existed and no grounds for a bar to cancellation arose under s 134(2) of the Migration Act.
Whether the bar under s 134(2) of the Migration Act arises
The Tribunal found that no bar to cancellation under s 134(2) of the Migration arose. In relation to the Bookara Beach Resort, the wine business and the business of compiling a real property portfolio, the Tribunal found that the evidence presented by the applicants, and the ‘bare claim’ that the first applicant had made a ‘genuine effort’, did not satisfy the requirements of each of the subsections in s 134(2)(a)-(c) of the Migration Act.
Whether residual discretion not to cancel the visas be exercised
The Tribunal considered that, at most, the first applicant established that he had invested some $5 million in property in Australia. The Tribunal considered that the first applicant did not need a visa to maintain and protect that interest and, insofar as the applicants wished to visit Australia, more appropriate visas could be sought as and when needed. Given the scheme of the Migration Act, the purposes for which visas are issued and the particular requirements attaching to different types of visas, the Tribunal found that the first applicant did not require a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) visa and that it would be inappropriate for him to hold one. The Tribunal was satisfied that the residual discretion not to cancel the applicants’ visas should not be exercised.
Whether cancellation of the applicants’ visas would cause extreme hardship
The Tribunal was satisfied that there was no evidence that the second or third applicants would suffer extreme hardship if their visas were to be cancelled which would give rise to a bar under s 134(5) of the Migration Act to cancellation of the visas.
Tribunal’s conclusion
The Tribunal found that the correct or preferable decision was that the applicants’ visas be cancelled and affirmed the delegate’s decisions.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The application contains the following nine grounds of review:
1.The AAT misinterpreted and/or misapplied s134 of the Migration Act 1958 Cth (“the Act”).
2.In relation to each or all of the business operated by the applicants, the AAT misapplied and misinterpreted the definition of business in s134 of the Act.
3. The decision of the AAT was unreasonable;
4. The AAT’s discretions available to it in s134 of the Act miscarried.
5.The AAT respondent did not conduct a proper review in accordance with Division 3 and 4 of Part 7 of the Migration Act.
6.In reaching its decision the second respondent took into account irrelevant matters;
7.In reaching its decision the second respondent failed to take into account relevant matters
8. The second respondent’s decision was an improper exercise of power;
9. The decision was otherwise unlawful.
No particulars for the grounds were included in the application, despite the fact that the application was apparently prepared by a lawyer.
Grounds 6 to 9 were not pressed at the hearing and are not considered further.
RELEVANT LEGISLATION
Those parts of s 134 of the Migration Act that are relevant to this application are set out below:
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa) if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c)does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a)has made genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c)intends to continue to make such genuine efforts.
(3)Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c)research that the person has undertaken into the conduct of an eligible business in Australia;
(d)the period or periods during which the person has been present in Australia;
(e)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h)whether the person has failed to comply with a notice under section 137;
(i)if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
…
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa.
(5)The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
(10) …
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
…
ownership interest, in relation to a business, means 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.
CONSIDERATION
In circumstances where the applicants’ grounds are unfortunately not particularised, and there is some overlap in the grounds as they are addressed in the applicants’ submissions, it is convenient to address thematically the complaints that can be distilled from the applicants’ submissions.
Whether the Tribunal’s discretion in s 134 miscarried
The first issue raised in the applicants’ submissions, which corresponds to ground 4 of their application, is an allegation that the exercise of the Tribunal’s discretion miscarried because the Tribunal failed to grapple with the fact that it had a very broad residual discretion.
Both parties referred in their submissions to Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304; [2004] FCA 31. In that case, Kiefel J (as her Honour then was) confirmed that there remains a discretion not to cancel a visa even if none of the bars to the cancellation of the visa in s 134(2) arise. Her Honour said at [21]:
… The Minister might be satisfied of the matters referred to in subs (1) and not be satisfied as to the efforts made as referred to in subs (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them. An explanation satisfactory to the Minister, of inaction up to the point of assessment, might be given. The nature of the power to cancel is a continuing one. There is no apparent purpose to be achieved by requiring cancellation whenever the Minister is undertaking an assessment of what has been undertaken by a visa holder. The Minister retains the right to cancellation under s 134(1) at all times. This does not suggest that the Minister is to be obliged to cancel a business visa if the Minister is not satisfied at a particular point during the currency of the visa of the matters in s 134(2).
In my view, in the present matter the Tribunal’s discretion has not miscarried.
It is abundantly clear from the Tribunal’s reasons that the Tribunal was aware that:
(a)upon finding that a ground for cancellation in s 134(1) existed, and cancellation was not prohibited under s 134(2), the Tribunal retained a residual discretion not to cancel the first applicant’s visa; and
(b)the residual discretion was a broad discretion.
The Minister has identified a number of paragraphs in the Tribunal decision that demonstrate the Tribunal’s awareness of these matters. It is not necessary to set out all of them in this judgment. For present purposes, the Court highlights the following paragraphs of the Tribunal reasons as examples of paragraphs that support the finding at [37] above.
(a)The Tribunal clearly demonstrated its understanding that there was a residual discretion when it identified the issues for its consideration at [25]. The Tribunal there said (emphasis added):
The dispute in this matter (as identified by the Respondent at set out at [13] above) comes down to a review of:
(a)whether the First Applicant’s identified business interests satisfy a condition under s 134(1) to trigger the discretion to cancel the visas; and
(b)if one of those conditions was met, whether the conditions required for the bar under s 134(2) were met;
(c)even if the bar under s 134(2) does not apply, whether the residual discretion under s 134(1) not to cancel the visas should be exercised; and
(d)if the Tribunal finds that the First Applicant’s visa should be cancelled, whether the cancellation of the wife and son’s visas would result in extreme hardship.
(b)The Tribunal’s inclusion of a section under the heading ‘Should the residual discretion not to cancel the visas be exercised?’ also clearly shows that it was aware that it had a residual discretion not to cancel the applicants’ visas.
(c)The Tribunal acknowledged that the residual discretion was a broad one at [23] and [24] of its reasons where it noted and accepted as correct the Minister’s contention that the ‘residual discretion is broad, but it must be exercised in the context of the legislation in which it is found’.
After making findings that a ground for cancellation under s 134(1) existed, and that the bar in s 134(2) did not arise, the Tribunal proceeded to consider over two and half pages the exercise of the residual discretion under its heading ‘Should the residual discretion not to cancel the visas be exercised?’. The Tribunal identified the submissions of the parties and noted that the only matters advanced by the applicants as to why the residual discretion not to cancel should be exercised in their favour were that the first applicant and his family had established a solid business base in Australia through the direct investment of almost $5 million and that the family business activity would continue. The Tribunal summarised the legal principles and submissions made by the Minister and agreed with the Minister’s analysis of the law and submissions in relation to the exercise of the discretion not to cancel the applicants’ visas.
The applicants made a number of specific complaints about the manner in which the Tribunal exercised the residual discretion. For the reasons explained below, none of these complaints establish jurisdictional error in the Tribunal decision.
The applicants submitted that there are no mandatory relevant considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15(b)]. I agree, as does the Minister, that there are no mandatory relevant considerations that the Tribunal is required to take into account when exercising the residual discretion. The applicants apparently accepted before the Tribunal that the residual discretion was broad, but had to be exercised in the context of the legislation which it is found (see [23] and [24] of the Tribunal’s reasons). At [102(a)] of its reasons, the Tribunal referred to the Minister’s submission, which it accepted at [103], that the case of Philp and Minister for Immigration and Citizenship (2007) 99 ALD 368; [2007] AATA 2092 (Philp) contains a useful but non-exhaustive list of potential relevant considerations. Contrary to the applicants’ submissions to this Court, the Tribunal’s reference to ‘potentially relevant considerations’ is not properly or fairly understood as being conflated with the concept of mandatory relevant considerations. In the context in which it is used (including the reference to Philp), it is simply a reference to a summary of case law of the types of factors that other decision-makers have chosen to take into account in the exercise of the residual discretion in other matters. The reference to ‘potentially relevant considerations’ does not demonstrate jurisdictional error.
More specifically, the applicants submitted that there was no requirement that they move to Australia during the first three years of the visa, and there is no test based on any need to be present in Australia. They submitted that time based in Australia per se cannot be the basis for the visa cancellation. In oral submissions, Mr Boccabella referred to the absence of any visa condition or other requirement to spend a specified amount of time in Australia, and the lack of any reference in the Second Reading Speech of the Migration Amendment Bill (No 2) 1992 (Cth), which introduced s 134 of the Migration Act, to the expectation that business visa holders would reside in Australia.
In my view, in the exercise of the broad residual discretion, it was open to the Tribunal to take into account the amount of time that the applicants have spent in Australia (or the lack of time, as the case may be). It was not an irrelevant consideration that the Tribunal was prohibited from taking into account. The Tribunal did not treat the time the applicants have spent in Australia as a ‘test’ and the lack of time spent in Australia was not the ‘basis for visa cancellation’. The visas were cancelled because a reason for cancellation under s 134(1) arose, cancellation was not barred by any of the s 134(2) factors, the Tribunal was not minded to exercise its residual discretion not to cancel the visas, and the Tribunal was not satisfied that the cancellation of the visas would result in extreme hardship for the second and third applicants. In taking into account, in the exercise of the residual discretion, the limited time that the applicants have spent in Australia, the Tribunal referred to and accepted the Minister’s submission that case law suggests that the business visa scheme contemplates that such visa holders would remain resident in Australia. There is no jurisdictional error as a result of the Tribunal having regard to the limited time spent by the applicants in Australia in the exercise of its residual discretion.
The applicants also submitted that their intentions can be evidenced by the investment of ‘seed’ or ‘venture’ capital of $1.6 million in the Bookara Beach Resort and a further multi-million dollar investment in real property earning rental income. They further submitted that the Tribunal’s suggestion that it should not exercise its residual discretion ‘simply as a matter of convenience’ to the applicants is misplaced, because it is more than simply convenience – it is a question of securing free flow of movement for those who have made substantial investments.
The Tribunal was clearly aware of the applicants’ submission that the residual discretion be exercised in their favour because of their investment, having set it out at [100] of its reasons. At [103], the Tribunal accepted that the first applicant established that he had invested some $5 million dollars in property in Australia. Notwithstanding this finding, the Tribunal was not satisfied that it was appropriate to exercise the discretion not to cancel the applicants’ visas. This course was open to the Tribunal. The Tribunal’s acceptance of the Minister’s submission that the residual discretion should not be exercised for the applicants’ convenience was based on case law and open to it.
The applicants submitted that the following comments of the Tribunal at [103] amounted to ‘policy making on the run’:
… He does not need a visa to maintain and protect that interest. Insofar as the Applicants wish to visit Australia then more appropriate visas can be sought as and when needed. Given the scheme of the Act, the purposes for which visas are issued and the particular requirements attaching to different types of visas, the First Applicant does not require a Business Skills – Business Talent (Migrant) (Class EA) (Subclass 132) visa, and it would be inappropriate for him to hold one.
The applicants further submitted that there was no evidence to support the proposition that the first applicant did not need a visa to maintain and protect his financial interest, and that there was no evidence about what more appropriate visas the applicants should apply for.
I do not accept these submissions. The Tribunal was not making policy on the run, but rather making observations about the purpose of the visas held by the applicants, based on case law and the relevant second reading speech. It did not adopt any policy that the visa should be cancelled if the applicants are not usually resident in Australia. The Tribunal’s observations that the first applicant does not need to be onshore to protect his financial investment are supported by the first applicant maintaining that investment while primarily offshore for the years prior to the Tribunal decision. There is also no error in the Tribunal observing that the applicants could seek more appropriate visas as and when needed. I accept the Minister’s submission that the applicants have not shown that no other visas are available to them.
The applicants submitted that the wine business and the grocery transaction should have formed part of the residual discretion, not as mandatory relevant considerations, but as a proper response to the submissions as made. However, the applicants did not refer to this in their submissions to the Tribunal and it is unclear how the Tribunal should have taken these matters into account in the exercise of its residual discretion in response to the submissions made.
The applicants submitted that most of the Tribunal’s two page discussion in relation to the residual discretion is a recitation of the Minister’s submissions, rather than an analysis of the Tribunal’s broad discretionary power. Again I do not accept that this submission establishes jurisdictional error. The Tribunal quoted from the relevant parts of the applicants’ very brief submissions in full, and summarised the Minister’s submissions which contained more detail. There is no error in the Tribunal setting out the Minister’s submissions and then agreeing with those submissions. The Tribunal had regard to all relevant submissions advanced by the applicant, and the manner in which the Tribunal addressed the exercise of its residual discretion is reflective of the manner in which the parties addressed it in their submissions to the Tribunal.
The Minister has suggested that the applicants are ultimately expressing disagreement with the Tribunal’s exercise of the discretion in a way that amounts to a request for the Court to engage in impermissible merits review. There is some merit in this submission. Ultimately, however, my reasons for finding that there is no jurisdictional error are that the Tribunal reasons do not show that it has misunderstood the broad nature of its discretion, it was open to the Tribunal to take into account the matters to which it had regard, and it cannot be said that the exercise of the discretion was unreasonable, illogical or irrational. I accept the Minister’s submission that the exercise of the Tribunal’s unfettered discretion was within the area of its decisional freedom.
The exercise of the discretion has not miscarried and ground 4 is not established.
Whether the Tribunal misunderstood or misapplied the terms ‘business’ and ‘genuine effort’
The second complaint made by the applicants is that the Tribunal misinterpreted or misapplied s 134 of the Migration Act in relation to each or all of the businesses operated by the applicants. More specifically, the applicants assert that the Tribunal did not properly understand or apply the terms ‘business’ and ‘genuine effort’ in reaching its decision. Such a complaint could fall under the broad umbrella of grounds 1 and 2.
Genuine effort
The term ‘genuine effort’ appears in s 134(2) of the Migration Act. That subsection provides a bar to cancellation of a business visa if the Minister is satisfied that the visa holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c)intends to continue to make such efforts.
For the bar to cancellation in s 134(2) to apply, the visa holder must satisfy all three of these requirements, as the Tribunal correctly recognised at [21] of its reasons: see also Essof v Minister for Immigration and Citizenship [2009] FMCA 13 at [23].
The term ‘genuine effort’ is not defined in the Migration Act. The Minister, in his submissions to the Court, referred to two Tribunal cases that considered what is meant by the term ‘genuine effort’:
(a)in Re Yam and Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] AATA 283 (Yam) at [53] the Tribunal considered that genuine effort must be more than a superficial or token effort and some exertion or endeavour must be involved; and
(b)in Re Gunawan and Minister for Immigration and Multicultural Affairs (2006) 92 ALD 233; [2006] AATA 852 the Tribunal said at [46]:
“Genuine effort” is not defined so must be given its ordinary meaning within the context of the Act. The Oxford Dictionary of English, 2nd ed, Oxford University Press, Oxford, 2003, defines “genuine” to mean “truly what something is said to be; authentic” and “effort” to mean “a vigorous or determined attempt”.
In Weng v Minister for Immigration and Citizenship (No 2) (2011) 121 ALD 77; [2011] FCA 444 (Weng) at [50], McKerracher J referred to Yam and accepted that the word ‘genuine’ refers to effort that is more than ‘superficial or token’.
The applicants’ complaint in the present case is that, in relation to the Bookara Beach Resort, the wine business and the real properties business, the Tribunal made no findings in relation to s 134(2), and that the Tribunal’s findings at [91]-[98] of its reasons are not sufficient to enable it to meet s 134(2) to overcome the genuine effort ‘threshold’. In oral submissions the focus of the applicants’ submissions in relation to this complaint was that the Tribunal did not appreciate that one can make a genuine effort to do something but still fail.
I do not accept the applicants’ submissions. The Tribunal was clearly aware that there could be a genuine effort that fell short of success. Not only is this obvious from the context of the legislation, which for reasons explained above, the Tribunal properly understood, but it is also clear from the manner in which the Tribunal applied s 134(2). For example, at [86] of its reasons, the Tribunal accepted that it might be arguable that s 134(2)(a) might be met in relation to the aborted (that is, failed) purchase of the supermarket, but there was no evidence or submission that s 134(2)(b) and (c) were met.
At [91]-[98] of its reasons, the Tribunal considered the potential operation of s 134(2) under the heading ‘Does a bar under s 134(2) of the Act arise?’. In relation to the Bookara Beach Resort, the wine business and the business of compiling a real property portfolio the Tribunal said at [93]-[98] of its reasons (footnotes omitted):
93.Insofar as the Applicants seek to claim that a bar arises under s 134(2) in respect of the Bookara Beach resort development, the wine business and the business of compiling a real property portfolio, the evidence presented by the Applicants in respect of each of those claimed businesses does not satisfy the requirements of each of sub-ss 134(2)(a)–(c).
94. The Applicants’ submissions in this regard were:
29.A total of $4.395 million has been directly invested in Australia in business assets and activities.
30. All the business activities are continuing.
31.[The First Applicant] is not a silent investor, he is involved in each of his businesses.
95.The Applicants’ closing submissions on this issue repeated the submission made in the Applicants’ SFIC set out in [94] above with the value of claimed direct investment in assets being increased to “[m]ore than $5 million … (real property $3,470,400 and $1.6 million in Bookara).”
96.As with the majority of the Applicants’ submissions, there was no identification of evidence, relevant legal principles or authorities which supported or explained that bare assertion. Further, the basis upon which the assertion of there being a “genuine effort” was made seems to arise from the claims set out in the preceding paragraphs in each case. Those preceding paragraphs, at least in relation to a number of the claimed businesses, are clearly wrong. The claims that “All business activities are continuing” and that “[the First Applicant] is involved in each of his businesses” in relation to the aborted supermarket venture and claimed toilet paper business are incorrect, even on the First Applicant’s own evidence.
97.The bare claim that the First Applicant (apparently) has made “a genuine effort”, does not particularise or identify the relevant evidence to establish how each of sub-ss (a) to (c) of s 134(2) is satisfied. The Tribunal does not accept that they have been satisfied. The evidence does not establish, and the Applicants make no effort to explain, how each of sub-ss 134(2)(a) to (c) is satisfied in respect of each of the claimed businesses or more generally.
98.Accordingly, no bar under s 134(2) of the Act to the cancellation of the visas arises.
The Tribunal in these paragraphs clearly considered the submissions advanced by the applicants and found that the applicants had not established that each of the three requirements in s 134(2)(a)-(c) was satisfied. This amounts to a clear finding for the purposes of s 134(2). It was not inappropriate for the Tribunal to consider this issue by reference to the submissions advanced by the applicants. I agree with the Minister’s submission to the Court that the Tribunal did not need to uncritically accept the assertions made on behalf of the applicants and did not need rebutting evidence to hold that those assertions were not made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535 at 451; BOO17 v Minister for Home Affairs (No 2) [2019] FCA 329 at [15]; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 at 348.
The crux of the error asserted by the applicants at the hearing can be seen in the following parts of the applicants’ oral submissions:
The minister must not cancel a visa if satisfied that its holder has made a genuine effort to obtain a substantial ownership interest in an eligible business. Well, let’s just look at that first. So even if Bookkara, as it stands at the moment, is not an eligible business because it’s very much in the embryonic stage, that does not mean that a genuine effort has not been attempted, or that there has not been a real attempt to obtain a substantial ownership interest in an eligible business. What the Tribunal erred on, in my submission, is that it thought it had to define the business as an eligible business first, and then decide whether you’ve made a genuine effort to obtain a substantial ownership in an eligible business. It’s an error.
What the tribunal should have done is say, look, here’s a business. It may not be an eligible business, but have they made a genuine effort to obtain a substantial ownership in an eligible business if this project goes ahead. Certainly if it goes ahead, it would be an eligible business, but the real test is, have they made a real attempt. In my submission, in the absence of a finding that the project is a sham, that the $1.6 million investment was not real, that there had been no….plans and other preparations done, and that the caveat is a legal ruse to establish….by the applicant. But if all of those things can fit, if a $1.5 million investment is made, if the Bookara Beach Resort is a genuine project, its architectural plans have been done, and other things have been done to get the project at least moving, to a point, and there is a caveat to protect the person’s interest, then, in my submission, the test is not — well, it’s not an eligible business at the time I come to make the assessment, therefore you haven’t made a genuine effort. That is not the test.
And similarly, in relation to using skills on a day-to-day basis in the management of the business, I mean would we say, for example, during the COVID period in Victoria, where restaurants had to, in effect, close down from March until, basically — well, for a very long time. I’m not sure for how long, but certainly a year and a half, where there was not one glass of wine being poured out for any customer, but if someone had invested in a restaurant, set it up before COVID, had they not made a genuine effort? Well, the answer is, obviously, yes.
So the Tribunal made the error if thinking there’s no activity at the moment, therefore it’s not a genuine effort. Well, that just can’t be the case…
These submissions misunderstand the Tribunal’s reasons. The Tribunal’s reasons centre on the understanding that for the bar to cancellation in s 134(2) to arise, each of the requirements in sub-paragraphs (a)-(c) had to be met. The applicants did not identify to the Tribunal the evidence on which they relied to establish that each of the three requirements in s 134(2) was met. Rather, the applicants simply referred to a quantum of money invested, asserted, incorrectly in the Tribunal’s view, that all the business activities were continuing, and asserted that the first applicant was involved in each of the businesses. Again, the Tribunal has addressed the submissions as advanced by the applicants. It was unnecessary for the Tribunal to find that any of the businesses or transactions were a sham in deciding it was not satisfied that the requirements in each of s 134(2)(a), (b) and (c) were met, nor did it need rebutting evidence to reject the bare assertions advanced on behalf of the applicants.
The applicants’ oral submissions seek to raise an issue in relation to whether, for the purposes of s 134(2)(a), the genuine effort to obtain a substantial interest in an eligible business must be directed to a business that already meets the definition of ‘eligible business’, or whether the genuine effort can be directed to effort to make a business an ‘eligible business’ in circumstances where the person has already acquired a substantial interest. The applicants have not referred me to any authority in relation to this issue, and it was not properly raised until oral submissions, so the Minister was not on notice of the issue. This issue does not affect the outcome in the present case, and it is therefore unnecessary for me to determine the issue. In these circumstances, it is undesirable for me to express any view on what is ultimately a statutory interpretation question which the Minister has not had a proper opportunity to address.
The reason the applicants’ oral submission about the genuine effort to which s 134(2)(a) is directed does not affect the outcome of the present matter is because the Tribunal’s findings in relation to s 134(2)(b) and (c) provide an independent basis for its decision. Reading the Tribunal reasons fairly, the Tribunal found that the applicants did not identify evidence to show that they met all of the cumulative requirements in s 134(2)(a), (b) and (c). I am unable to discern any jurisdictional error in relation to the Tribunal’s findings in relation to s 134(2)(b) and (c). No jurisdictional error is established by the applicants’ submission in reply that there may be some kind of ‘risk of cross-contamination’, or by the submission by way of analogy to the effect of COVID on some restaurants (extracted above). Accordingly, if there was an error in the approach to s 134(2)(a) (which I do not decide), that error would not be material because it could not realistically have deprived the applicants of the possibility of a successful outcome, given the Tribunal’s findings in relation to s 134(2)(b) and (c): Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30].
In relation to the aborted supermarket transaction, the applicants submitted that the Tribunal did not appear to be cognisant that the applicants, through a corporate entity, entered into the contract and that there was evidence of the genuineness of the transaction and the involvement of the applicants. The applicants submitted that the Tribunal’s findings at [85] and [86] are incorrect and do not dispel the requirement that the Tribunal needs to make factual findings to countermand the requirements of s 134(2).
The Tribunal in its reasons recognised that the applicants appeared to rely on the aborted purchase of the supermarket only for the purposes of the bar under s 134(2) of the Migration Act and said at [85]-[86]:
85.No argument was developed by the Applicants in support of this assertion, nor was any authority cited to support the assertion that a single aborted transaction should be considered to comprise “a genuine effort” (presumably for the purposes of s 134(2) of the Act, although that is not stated). The Applicants failed to identify which of the sub-ss of s 134(2) the claimed “genuine effort” satisfies.
86.The evidence presented by the Applicants does not establish that the conditions of each of the sub-ss of s 134(2) are met. While there may be some argument (although not developed by the Applicants) that the condition of s 134(2)(a) might be met by the aborted purchase, there was no argument articulated by the Applicant, let alone evidence to show satisfaction of sub-ss (b) and (c) of s 134(2). The Tribunal accordingly rejects the Applicants’ apparent contention that the aborted purchase of the supermarket invokes the bar under s 134(2) of the Act.
It is clear, in particular from [86], that the Tribunal considered s 134(2) and found that the applicants’ evidence did not establish that each of the conditions in s 134(2)(a), (b) and (c) were met, and the applicants had not even advanced submissions in relation to subsections (b) and (c). Further, contrary to the applicants’ submissions, the Tribunal was plainly aware that a corporate entity was used for the purpose of entering a contract for the purchase of the supermarket. The Tribunal extracted at [80] of its reasons the applicants’ submission that Round and Round Pty Ltd entered the contract for the purchase of the supermarket.
The applicants have not established that the Tribunal misunderstood the term ‘genuine effort’ or otherwise failed to properly consider and apply s 134(2) of the Migration Act.
Business
The term ‘eligible business’ is defined in s 134(10) of the Migration Act, but the term ‘business’ is not defined.
The Tribunal acknowledged that ‘business’ is not a defined term in the Migration Act at [22] of its reasons and adopted the meaning of ‘business’ used by Federal Magistrate Barnes for the purposes of s 134 in Chun Hou Lu v Minister for Immigration and Citizenship (2009) 112 ALD 125; [2009] FMCA 891 at [40], namely ‘a commercial enterprise or going concern’. This case was referred to in the applicants’ opening remarks to the Tribunal as authority for the meaning of ‘business’. The Tribunal further considered the meaning of the term ‘business’ at [36] and [37] of its reasons, where it said (footnotes omitted, emphasis in original):
36.As noted at [22] above, “business” as used in s 134 of the Act has been held to mean “a commercial enterprise or going concern”. Barnes FM in Lu, citing, amongst other cases, Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [(2003) 129 FCR 448; [2003] FCA 481] (Nassif), observed that there was no definition of “business” under the Act. Justice Branson in Nassif observed:
28… As is mentioned above, no statutory definition of “business” is available to assist the determination of this issue. The dictionary definitions of ‘business’ are so numerous and so diverse that they provide little assistance for present purposes. I note, however, a few of the apparently more relevant definitions to be found in the Oxford English Dictionary, 2nd ed, and the Macquarie Dictionary, 2nd ed, respectively.
29The Oxford English Dictionary, 2nd ed, includes the following definitions of “business” amongst many others:
12.a.A person’s official or professional duties as a whole; stated occupation, profession or trade.
…
13.a.In general sense: action which occupies time, demands attention and labour; esp. serious occupation, work, as opposed to pleasure or recreation.
…
14.a.(With pl.) A pursuit or occupation demanding time and attention; a serious employment as distinguished from a pastime.
b.spec. A particular occupation; a trade or profession.
…
23.A commercial enterprise regarded as a “going concern”; a commercial establishment with all its “trade”, liabilities etc.
30The Macquarie Dictionary, 2nd ed, includes the following definitions of “business”:
1. one's occupation, profession or trade.
2.Econ. the purchase and sale of goods in an attempt to make a profit.
3.Comm. a person, partnership, or corporation engaged in this; an established or going enterprise or concern: to be in business
…
6.that with which one is principally and seriously concerned.’
31In Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216 at 226 Mason CJ, Gaudron and McHugh JJ observed:
... [o]f all words, the word “business” is notorious for taking its colour and its content from its surroundings ...
(Citation omitted.)
37.The elements of the definitions and the curial considerations of the word “business” that Barnes FM extracted in Lu, were “commercial enterprise or going concern”. As noted by the High Court in Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation [(1990) 171 CLR 216; [1990] HCA 52] cited by Branson J in Nassif in the passage reproduced at [36] above, the word “business” takes its colour and its content from its surroundings. In the present case, relevantly the word “business” appears as part of the term “eligible business” so, as the High Court noted, its meaning is given colour by the definition of “eligible business” in s 134(10) of the Act.
In his submissions to this Court, the Minister also referred to Weng where McKerracher J said at [61]:
Correctly, the tribunal stated (at [21]) that the term “business” is not defined in the Act but denoted “activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”.
The Tribunal’s approach is also consistent with the comments in Weng.
The applicants submitted that the Tribunal misunderstood the term ‘business’, which they defined, based on the Macquarie dictionary, in their written submissions as ‘a person, partnership, or corporation engaged in this; an established or going enterprise or concern’. In oral submissions, Mr Boccabella submitted that the only apposite definition would be ‘an established or going enterprise or concern’. It is not clear to me how this is materially different from the definition used by the Tribunal.
Mr Boccabella made a submission at the hearing before the Court to the effect that the Bookara Beach Resort must be a business because it is not a hobby, it is not private or being used for the personal entertainment or living of the applicants and therefore must be commercial in nature. Therefore it must be a business. A similar submission was made in relation to the shipment of wine that was intended to be exported to China. This type of definition by exclusion does not establish jurisdictional error. The Tribunal carefully considered the evidence before it in relation to the status and activity in relation to the Bookara Beach Resort, in reaching its finding at [56] that:
Irrespective of the First Applicant’s intentions when he purchased the interest in the project in 2014, the Bookara Beach resort development could not now be considered a business, eligible or otherwise. It is best characterised as a long-time stalled, prospective property development. For the seven years that the First Applicant has held the interest in the land, only one prospective investor has been identified and there is no binding agreement with that potential investor. In effect the Bookara Beach resort is still $35 to $40 million away from being anything other than a possibility. At this point, and for some considerable period up to this point, it lacks and has lacked the characteristics of a commercial enterprise or going concern…
After considering the claimed wine business, the Tribunal considered that all the first applicant’s evidence established was that there was a single, unsuccessful attempted shipment of wine to China, which was insufficient to constitute a business.
These findings were clearly open to the Tribunal on the evidence before it.
In relation to the real property portfolio, the applicants’ submission developed orally was that providing money for the purchase of five properties that generate rent has to be a commercial enterprise. This is simply an expression of disagreement with the Tribunal’s finding that the purchase of six properties by the applicants does not have the necessary characteristic of ‘a commercial enterprise or going concern’ and does not establish jurisdictional error.
The Tribunal’s understanding of the term ‘business’ was consistent with case law and I am unable to discern any jurisdictional error in its application of that term.
Taking into account the balance of the applicants’ submissions, the real complaint appears to be that the Tribunal did not find that the Bookara Beach Resort, the real property portfolio and the proposed wine shipment met the definition of an ‘eligible business’.
The applicants’ written submissions in relation to Bookara Beach Resort are that:
(a)In the absence of any finding that there was no investment of $1.6 million or that the project was a sham, the Bookara Beach Resort is a business, even if the project does not proceed to fruition.
(b)There was no adverse finding that the first applicant had not secured the serious interest of a man who is the principal of a Chinese company, a man of substance and genuine possible investor. Therefore, the Bookara Beach Resort meets paragraph (a) of the definition of eligible business, ‘the development of business links with the international market’.
(c)The Tribunal simply skimmed over the top of the evidence without considering it at [57], where it said:
Also, on the evidence presented, the Tribunal could not form a reasonable belief that the Bookara Beach resort development is resulting in, or will result in, any one of the consequences set out in the definition of an eligible business under s 134(10) of the Act. On the evidence before the Tribunal it is not possible to form a reasonable belief that it will even be developed. It is therefore not an eligible business.
The applicants submitted that the Tribunal’s analysis of the real property business suffers from a similar defect, albeit the real property business would meet the definition in s 134(10)(b) (‘the creation or maintenance of employment in Australia’) or in subsection (f) (‘an increase in commercial activity and competitiveness within sectors of the Australian economy’).
In written submissions, the applicants also said ‘[a]s stated in Kiefel J in Shead v Minister for Immigration and Multicultural Affairs when effects or ‘results’ are being looked at, they can be indirect’. In oral submissions, Mr Boccabella developed an argument alleging error based on Shead v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 479; [2001] FCA 933 (Shead). He submitted that the Tribunal ought to have found that the first applicant’s activities in Australia indirectly led to the creation or maintenance of employment in Australia for the following reasons:
(a)In relation to the Bookara Beach Resort, the first applicant provided $1.6 million in seed or venture capital, and this had been spent on architectural design, town planning and administrative costs and, those being things that can only happen through human beings being employed, had therefore resulted in the creation or maintenance of employment in Australia.
(b)In relation to the ownership of real property, Mr Boccabella submitted that the Tribunal proceeded on a ‘misconception of macroeconomics’ in finding at [68] that ‘[t]here is simply no sufficient evidence presented by the [a]pplicants that the purchases of the properties would have the result of creating or maintaining employment in Australia, nor is there evidence that any of the other results identified in the definition of “eligible business” … have occurred or will occur’. Mr Boccabella submitted that some of the properties were either recently constructed or off the plan and if there is $3.6 million injected into the built environment, it is resulting in the creation or maintenance of employment in Australia.
(c)In relation to the claimed wine business, Mr Boccabella submitted that the purchase of wine in Australia for export to China creates and maintains employment in Australia.
The applicants’ submissions do not establish that the Tribunal misunderstood the term ‘eligible business’ in the present matter.
First, I accept the Minister’s submission that the Tribunal did not need to find that the alleged businesses were a sham in order to find that they were not businesses for the purpose of s 134(10), and the findings made by the Tribunal were open to it.
Second, the Tribunal carefully considered the evidence in relation to the proposed investor from China, and noted that the document signed by the potential investor did not amount to a binding offer, agreement or understanding between the parties. Having considered this evidence, the Tribunal found that it was clear that none of the results identified in sub-ss (a) to (f) of the definition of ‘eligible business’ in s 134(10) was occurring, and it was equally difficult to form a reasonable belief that one or more of the results in sub-ss (a)-(f) will occur. This finding was reasonably open to the Tribunal and does not demonstrate jurisdictional error. The applicants drew attention at the hearing before the Court to the Tribunal’s use of the word ‘occurring’ at [42] of its reasons, and submitted that this is wrong because the wording used in s 134(10) is ‘is resulting or will result’. In my view, the Tribunal’s paraphrasing of the statutory language to effectively use the phrase ‘a result will occur’ rather than ‘will result’ does not demonstrate any misunderstanding of the statutory test. It is simply to use passive language rather than active language.
Third, I do not accept the applicants’ complaint that the Tribunal skimmed over the evidence at [57]. The findings at [57] need to be read in the context of the reasons as a whole. The Tribunal at [56]-[59] set out its conclusions as to why a ground for cancellation in s 134(1) arose in relation to the Bookara Beach Resort. These conclusions were reached after consideration of the evidence and the parties’ submissions at [27]-[55] of its reasons. The Tribunal carefully considered the evidence and submissions and did not ‘skim over’ the evidence. Further, I accept the Minister’s submission that the Tribunal does not have an obligation to refer to every piece of evidence in its reasons, or conduct a line by line refutation of the evidence.
Fourth, the Tribunal at [64]-[67] considered the applicants’ submissions based on Shead to the effect that the creation and maintenance of employment in Australia should not be limited to direct causal effect. The Tribunal’s consideration of Shead was in the context of the real property portfolio, presumably because that was where it was raised in the applicant’s closing submissions. However, in their submissions to the Tribunal, the applicants’ simply referred to Shead for the proposition that ‘indirect’ effects can be relevant and did not develop any meaningful submissions about how any of the claimed businesses may indirectly result in the creation and maintenance of employment in Australia.
The Tribunal considered the context in which the relevant issue arose in Shead, and then extracted the following passage from [13] of Shead:
Additionally, there does not seem to me to be any warrant for limiting the words “the creation or maintenance of employment for Australian citizens or Australian permanent residents” in subpar (i) to only a direct causal effect. To do so in this case would seem to me to limit the enquiry to an effect within the business in which the visa-holder is in fact employed. The other qualifications for a business sponsor in par (a) of subs (2) assume the potential for wide effects, which are quite likely to be indirect and it seems to me that the effect on the employment of others should be viewed in the same way. They include a contribution to the expansion of Australian trade in goods and services; the improvement of Australian business links with international markets; or competitiveness within sectors of the Australian economy. None of these are limited to the influence or effect of the employment within the business in question, although one would expect to see some causal connexion between the business and the employment and the subjects nominated by the subsection.
The Tribunal then said at [67] (footnotes omitted):
In that case evidence had been led before the tribunal as to the impact that the employment of the visa applicant would, and in fact did, have. The evidence showed that the number of people employed by the nightclub, the sponsor’s business, had increased, however, the tribunal found that that increase “… had resulted “in large part” from the expansion of the business or businesses” and that the visa applicant’s employment “had not or would not “per se” contribute to the creation or maintenance of employment”. That need for a direct causal link was what her Honour found to be too restrictive.
The Tribunal then proceeded to find that the applicants had simply not presented sufficient evidence to show that the purchase of the properties would have the result of creating or maintaining employment in Australia.
This reasoning was open to the Tribunal. There is nothing to suggest that the Tribunal has misunderstood Shead in any way, and it gave considered reasons for distinguishing Shead.
The applicants did not identify any materials that were before the Tribunal in which they advanced submissions to the effect of those summarised in (a) and (c) of [82] above (in relation to the Bookara Beach Resort and the proposed shipment of wine), and I am unable to locate any such submissions in the materials contained in the court book. In circumstances where the applicants did not raise any such submissions before the Tribunal, to now assert that the Tribunal should have found that s 134(2)(b) was met on a basis not put to the Tribunal is to invite the Court to engage in merits review. This is beyond the jurisdiction of the Court.
I have serious doubts as to whether the matters raised in the applicants’ submissions summarised at [82] above are the type of ‘indirect’ effect referred to in Shead, and whether those matters are within the contemplation of s 134(2)(b) of the Migration Act. However, given my findings that the Tribunal’s conclusion in relation to the real property portfolio was open to it and that the applicants are seeking impermissible merits review to the extent that they seek raise new submissions in relation to the indirect employment effects of the Bookara Beach Resort and the proposed wine shipment, it is neither necessary nor desirable for me to determine that question, particularly in circumstances where the Minister had no notice of the applicants’ submission prior to the hearing.
The applicants have not established that the Tribunal misunderstood or misapplied the terms ‘business’ or ‘eligible business’.
Unreasonableness and failure to conduct a proper review
The other grounds pressed by the applicants, grounds 3 and 5, assert that the Tribunal decision was unreasonable and that the Tribunal failed to conduct a proper review. The applicants appear to have raised these grounds as a different way of characterising the errors they alleged in relation to grounds 1, 2 and 4. They did not advance any additional submissions in relation to these grounds.
I have found above that the complaints raised by the applicants that fall within grounds 1, 2 and 4 do not establish jurisdictional error. It follows that grounds 3 and 5 also do not establish jurisdictional error.
CONCLUSION
In circumstances where the applicants have not established jurisdictional error in the Tribunal decision, the application for judicial review is dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 August 2022
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