ZHENG v Minister for Immigration

[2015] FCCA 965

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHENG & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 965

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.65 and 134(10)

Migration Regulations 1994 (Cth), rr.1.03, 1.11, Schedule 2 - cl.892.211 and cl.892.221

Tung-Liang Liang v Minister for Immigration & Citizenship [2009] FCA 189

First Applicant: JIE ZHENG

Second Applicant: AI GE

Third Applicant: YUJIE GE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 321 of 2013

Judgment of: Judge Simpson

Hearing date: 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Adelaide

Delivered on: 21 April 2015

REPRESENTATION

Counsel for the Applicants: Mr S Ower

Solicitors for the Applicants: Winters Solicitors

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application for Judicial Review filed on 30 October 2013 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the first respondent’s costs fixed the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 321 of 2013

JIE ZHENG

First Applicant

AI GE

Second Applicant

YUJIE GE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) in which the Tribunal affirmed a decision of a Delegate of the Minister to refuse to grant the primary Applicant a Business Skills (Residence) (Class DF) visa (“visa”) under s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. All three Applicants are citizens of China.  The first Applicant is the primary Applicant and will be referred to in these reasons as “the Applicant”.  On 26 November 2009, the Applicant applied for a Business Skills (Residence) (Class DF) visa (“the visa”).  On 15 October 2010, 11 months after the application was made, a Delegate of the Minister refused the application.

3. It will be helpful to provide at the outset the text of all relevant legislation.

The relevant legislation

1. Clause 892.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) states under the heading ‘Criteria to be satisfied at the time of application’ and states:

   “(1)The Applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

   (2)For each business to which subclause (1) applies:

   (a)an Australian Business Number has been obtained; and

   (b)all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.”

2. Clause 892.221 of the Regulations is to be found under the heading ‘Criteria to be satisfied at time of decision’ and states:

   “The Applicant:

   (a)continues to satisfy the criteria in clauses 892.211 and 892.214; and

   (b)if the Applicant met the requirements of paragraph 892.212(b), continues to meet those requirements.”

3. Ownership interest has the meaning given to it in subs.134(10) of the Act.

   “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.”

4. Regulation 1.03 states that the term “main business” has the meaning set out in reg.1.11. Regulation 1.11 states:

   “(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an Applicant for a visa if:

   (a)the Applicant has, or has had, an ownership interest in the business; and

   (b)the Applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   (c)the value of the Applicant’s ownership interest, or the total value of the ownership interests of the Applicant and the Applicant’s spouse or de facto partner, in the business is or was:

   (i)     if the business is operated by a publicly listed company—at least 10% of the total value of the business; or

   (ii)    if:

   (A)the business is not operated by a publicly listed company; and

   (B)the annual turnover of the business is at least AUD400 000;

   at least 30% of the total value of the business; or

   (iii)   if:

   (A)the business is not operated by a publicly listed company; and

   (B)the annual turnover of the business is less than AUD400 000;

   at least 51% of the total value of the business; and

   (d)the business is a qualifying business.

   (2)If an Applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the Applicant, the Applicant must not nominate more than 2 of those qualifying businesses as main businesses.”

5. The term “qualifying business” is defined in reg.1.03 of the Regulations:

   “qualifying business means an enterprise that:

   (a)is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

   (b)is not operated primarily or substantially for the purpose of speculative or passive investment.”

Hearing before the Delegate

1. As mentioned previously, the Delegate refused the application for the visa.

2. The Delegate concluded that:

   a)The Applicant had not satisfied cl.892.211 of Schedule 2 of the Regulations;

   b)Clause 892.211 was one of the primary criteria for the visa, to be satisfied at the time of application;

   c)Clause 892.211(1) required that “the applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made”;

   d)Regulation 1.11 of the Regulations requires that a business is regarded as a “main business” if and only if the “applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day in making decisions affecting the overall direction and performance of the business”; and

   e)The Applicant failed to satisfy reg.1.11 and thus cl.892.211(1), for reason that:

   “I find that the applicant was not involved in managing the business from November 2007 until January 2008.  Furthermore, I find that from January 2008 until July 2008, the applicant was still in training and did not have a capacity to exercise management through the daily operations of the business.  Therefore, I conclude that the applicant has failed to demonstrate direct and continuous management of the business on a day-to-day basis for a total period of 8 months during the relevant two year period.”

Hearing before the Tribunal

1. The Applicant applied for a review of the Delegate’s decision by filing an Application for Review with the Migration Review Tribunal (“the Tribunal”) on 27 October 2010.

2. On 9 October 2013, the Delegate’s decision not to grant the visa was affirmed by the Tribunal.

3. The Tribunal’s decision was made on the basis that the Applicant did not, and could not, meet the requirements for the visa because she did not meet the “time of decision” requirement in cl.892.221 in Schedule 2 of the Regulations.

4. The Tribunal determined that it was not necessarily required to decide whether the Applicant had, at the time of the application, met the requirements of cl.892.211, in circumstances were it was satisfied that the Applicant had not, and could not, meet the requirement of cl.892.221 and that criterion was independently determinative of the case. The Tribunal expressed its conclusion as follows:

   “Based on that evidence, the Tribunal finds that even if the review applicant’s claims to have had an ownership interest in one or more actively operating businesses in Australia for at least two years before the application was made are supported by the evidence, the Tribunal is satisfied that at the time of this decision … she no longer continues to have an ownership interest in one or more actively operating main businesses in Australia, or indeed any business. … in making this finding, the Tribunal notes the terms of cl.892.211(1) encompass two temporal requirements.  First it requires that an applicant “has had … an ownership interest in one or more actively operating main businesses in Australia for at least two years before the application is made”; and secondly, that an applicant, “…continues to have, an ownership interest in one or more actively operating main businesses in Australia” at the time of application.  Clause 892.221 then qualifies the temporal elements in cl.892.211 by requiring an applicant to continue to satisfy the criteria in cl.892.211 up until the time of decision.”

5. The evidentiary basis for the finding in the Tribunal’s decision is found in the Tribunal’s decision in which it is recorded that the Applicant’s evidence to the MRT was to the effect that she ceased to have any ownership in the business relevant to her application for a visa in about October 2008, and that “… at the moment she does not have any investments in Australia”.

Hearing before this Court

1. By application for judicial review to this Court on 30 October 2013, the Applicant seeks an order quashing the Tribunal’s decision.

2. The application contained the following ground of application:

   “The Tribunal committed jurisdictional error by incorrectly interpreting cl.892.211 and cl.892.221 of Schedule 2 to the Regulations made pursuant to the Migration Act 1958 (as those regulations stood on 29 November 2009).”

3. The particulars are as follows:

   “The Tribunal determined the clauses required a visa Applicant to maintain an uninterrupted ownership interest in the Applicant’s relevant business to the date of the Tribunal’s decision with respect to the matters the subject of review.”

4. The first respondent filed a Response on 8 November 2013 which stated:

   “The first respondent relies upon the following grounds and particulars in defence of the application:

   1.The Application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the Applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].

   2.The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal dated 9 October 2013.

   3.The application for judicial review does not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.”

Applicants’ Submissions

1. It is submitted on behalf of the Applicant that the Tribunal erred in its construction of cl.892.221(1) of the Regulations.

2. The Applicant refers to the case of Tung-Liang Liang v Minister for Immigration & Citizenship[1] in which Logan J considered the proper construction of the criteria for a Subclass 845 visa.  Counsel for the Applicant submitted that the subclass 845 visa was similar to the 892.211(1) visa and that therefore this case can be of assistance.  In relation to both visas, there was a requirement for an ownership interest to be held over a period of time and the interest was “confirmed to be owned” at the time of the application.  Counsel points to following comments that Logan J made in the Liang case:

   “[35] The central point raised is, what is the true meaning and effect of the words ‘continues to’ as they appear thus in cl 845.221: ‘the Applicant continues to satisfy the criteria in clauses 845.213 to 845.218’?”

   [1] [2009] FCA 189.

3. His Honour further stated:

   “[47] … “continues” is used as a transitive verb. So used, the sense of the word is “to carry on, keep up, maintain, go on with, persist in (an action, usage, etc) (Oxford Dictionary, 2nd Ed, 1989) or “to go forwards or onwards in any course or action; keep on” (Macquarie Dictionary, Online Edition). When used for the purposes of cl 845.221 in conjunction with “a status which has a temporal condition”, it requires nothing more than that that status is possessed at the time when the assessment falls to be made, relevantly, at the time when the administrative decision in respect of the visa application is made. If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa Applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa Applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa Applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.

   [48] The point may illustrated by reference to the operation of cl 845.221 with respect to the “continues to satisfy” criteria referred to in that clause.

   [49] The criterion in cl 845.212 is status based and also temporally focussed by reference to the time of application. If that criterion is met at the time of application, it will “continue” to be met at the time of decision. …”

4. Counsel for the Applicants submitted that what his Honour meant by the passages referred to was that the relevant time of application criterion was a status with a temporal limitation; that there must be a determination at the time of the application as to whether the Applicant had the status for that period; and that if there was such a determination, then the words “continues to satisfy” in the time of decision criterion would also be satisfied.

5. Counsel for the Applicant then referred the Court to a further passage from the Liang case:

   “[53] These are Delphic qualities attending ascertaining the effect of cl 845.221 in relation to continued satisfaction of cl 845.213, even with the benefit of the guidance offered in Xiang’s Case. As a matter of first impression, cl 845.213 appears to be status based in the sense that it looks to the possession of an “ownership interest” in a “main business” or businesses. Subclause 845.213(a) carries a temporal limitation which looks to the 18 months immediately preceding the application. There is though a further and cumulative temporal limitation itself utilising the transitive verb “continues” found in cl 845.213(b).

   [54] The evident concern of the further temporal limitation in cl 845.213(b) is that the “ownership interest” in one or more “main businesses” over the period of 18 months immediately preceding the application must be maintained, “continue”, throughout whatever period elapses thereafter until the application is made. In other words, the intention, reflected in the language of cl 845.213(b), is that there should be no gap in the holding of an “ownership interest”.”

6. Counsel for the Applicants submitted further that the Tribunal should have determined whether it is satisfied that firstly, the Applicant has had an ownership interest in a main business for a period of at least two years before the date of the application, and secondly, that at the date of application, the Applicant continues to have such an ownership interest.  They submit that if the Tribunal is satisfied of this, it must then be satisfied that the Applicant “continues” to satisfy that requirement and, in the words of Logan J, “the visa Applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision”.

7. Finally it is submitted on behalf of the Applicant that, in summary, cl.892.221 did not require that there be an ownership interest in a main business at the date of the decision. It only required that there be such an interest at the date of application and for a period of two years immediately before the application.

Submissions by First Respondent

1. Counsel for the first respondent submits, quite correctly in my view, that whether or not cl.892.211 is ultimately determined to amount to an “actively based criterion” or a “temporal condition” it is ultimately irrelevant in the context of the facts of this case and this Applicant.

2. This is so because the irrefutable fact was that, as at the “date of decision”, when before the Tribunal, the Applicant clearly did not establish that she “continues to satisfy the criteria in clause 892.211”. She did not, and could not, establish this because as at the date of decision before the Tribunal, she was not involved in any business in Australia, and had not been involved in any such business since late 2008.

Conclusion

1. In my view, the Tribunal was correct in its determination that the Applicant did not satisfy cl.892.221 of Schedule 2 of the Regulations. There was no jurisdictional error and the application should be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth) with costs.

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 21 April 2015