Zhu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Zhu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2652 (21 August 2023)
ReviewNumber: 2022/3108, 2022/3112, 2022/3124
Division:GENERAL DIVISION
File Number(s): 2022/3108, 2022/3112 & 2022/3124
Re:Yanyan Zhu, Shihe Liu & Chang Liu
APPLICANTS

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:21 August 2023
Place:Sydney

The decision under review is set aside and substituted with a decision that the Applicants’ visas are not cancelled under s 134 of the Migration Act 1958 (Cth).
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Deputy President B W Rayment OAM KC
CATCHWORDS
MIGRATION – cancellation of business skills visa under s 134 of the Migration Act 1958 (Cth) – respondent failure to comply with s 135 – cancellation not invalid – residual discretionary power under s 134 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
21 August 2023

The Minister considered cancelling the Business Skills – Business Talent (Permanent) (Class EA) (Subclass 132) visas issued to Ms Zhu as primary visa applicant and members of her family. One member of the family to whom the same visa was issued, Ms Wang, was in Australia at the time the visas were granted to her and others. In her case the three-year limit specified in section 134(9) of the Migration Act 1958 (the Act) was exceeded and the Minister accepts that the cancellation of her visa was invalid. The review no longer deals with Ms Wang’s case, and the Tribunal issued a consent decision on 17 July 2023. One of Ms Zhu’s children therefore now resides in Australia permanently.
More recently, another of Ms Zhu’s children arrived in Australia and he now resides in Melbourne with his sister. He is Chang Liu, a young man of some 15 years. He told me he expects to be joined by his parents, but is unsure when they are coming.
His permanent visa will be cancelled if his mother’s visa is cancelled. That will be unfortunate for him, since, in the expectation that he would be attending an Australian high school, he did not sit for a high school entrance examination in China and he has been informed by the Sichuan Provincial Department of Education that since he did not sit for that exam, he is deemed to have voluntarily forfeited the opportunity to pursue high school education in China.
He is presently attending the Melbourne Language Centre learning English with a view to starting year 9 in Australia next year.
The respondent submits that he will not have difficulty obtaining a student visa. Mr Dong, for the applicants, referred to reg 500.212 of the Migration Regulations 1994 which is as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)     the applicant’s circumstances; and
(ii)    the applicant’s immigration history; and
(iii)   if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)   any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)     the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
An intention to stay in Australia temporarily seems to be involved in obtaining a student visa. Mr Chang Liu has held a permanent visa, and does not wish to remain here temporarily. He may wish to attend university here as well.
The remaining applicants submit that it was not open to the Minister to cancel their visas because the Minister’s purported notice under s 135 of the Act did not comply with s 135.
The Minister accepts that the notice served under s 135 did not comply with s 135. Section 135 provides as follows:
135 Representations concerning cancellation of business visa
1Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a)stating that the Minister proposes to cancel the visa; and
(b)inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
2The holder may make such representations to the Minister within the time specified in the notice.
3The Minister must give due consideration to any representations.
4If:
(a)the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b)at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
5If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
The Minister sent the notice to the local migration agent of the visa holders. However, the migration agent was not authorised by the applicants to receive such a notice. In order to comply with s 135 the Minister had to send the notice to the applicants in China, where they reside and he had to give them 70 days to respond to the notice, to comply with s 135(1) including s 135(1)(b)(ii).
The migration agent made representations on behalf of the applicants and the Minister took those representations into account. That fact led the Minister to submit that the cancellation was not invalid, on the basis of recent High Court authority in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
In those two decisions, the High Court, by majority, restated the test for determining whether a failure to comply with statutory preconditions to powers conferred on the executive led to invalidity.
Wei was a decision of three justices. In a joint judgment, Gagler and Keane JJ said at [23]-[27]:
23Jurisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act. There is no reason in principle why jurisdictional error should be confined to error or fault on the part of the decision-maker.
24Statutory provisions conditioning the validity of exercises of decision-making powers were described by Dixon J in R v Metal Trades Employers’ Assn; Ex parte Amalgamated Engineering Union, Australian Section as imposing “imperative duties or inviolable limitations or restraints”. As explained by Gleeson CJ in Plaintiff S157/2002 v Commonwealth:
“To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made.”
His Honour went on to explain that “[b]ecause what is involved is a process of statutory construction … the outcome will necessarily be influenced by the particular statutory context”.
25The analysis of Gleeson CJ in Plaintiff S157/2002 shows that, notwithstanding the note of caution sounded in Project Blue Sky Inc v Australian Broadcasting Authority, there remains utility in maintaining the traditional terminological distinction between an “imperative” (or “mandatory”) duty on the one hand, and a “directory” duty on the other hand, for the purpose of describing whether or not a material breach of an antecedent statutory duty results in an invalid exercise of a decision-making power. That distinction was explained in Clayton v Heffron when it was said:
Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void.
26Consistently with Project Blue Sky Inc, what is critical to be borne in mind is that assignation of one or other of those labels to a particular statutory duty imposed by a particular statutory provision marks “the end of the inquiry, not the beginning”. To label a particular statutory duty either “imperative” or “directory” is to express the conclusion of a process of statutory construction. Central to that process of statutory construction is an inquiry as to whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.
27Considerations bearing on an inquiry of that nature have long been recognised to include the justice and convenience of holding that a breach of the duty invalidates an exercise of the decision-making power. Thus, in Montreal Street Railway Company v Normandin, in which the issue was whether the verdict of a civil jury was to be set aside on account of non-compliance by a designated court officer with a statutory duty annually to revise a list of jurors, the Privy Council said:
“When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.”
Hossain was a decision of five justices. In a joint judgment, Kiefel CJ, Gageler and Keane JJ said at [29]-[31]:
29That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
30Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
31Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
Mr Greg Johnson of counsel, for the Minister, submitted that the representations made on behalf of the applicants, and the taking of them into account by the Minister, had the consequence that the failure to comply with s 135 was not material, with the consequence that the reviewable decision was not invalid. Invalidity would not have led to the Tribunal being without jurisdiction because the Minister’s decision was in any event a decision in fact.
I accept Mr Johnson’s submissions on the question of the validity of the Minister’s decision, and I turn to consider the reviewable decision on its merits. For that purpose, the provisions of s 134 of the Act become relevant to the merits of the reviewable decision in the circumstances.
Section 134 of the Act provides that :
134 Cancellation of business visas
1Subject 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.
2The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its 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 genuine efforts.
3Without 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).
3A Subject to section 135, the Minister may cancel an investment‑linked visa (other than a family member’s visa) if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
4Subject 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.
5The 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.
6The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
7If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including:
(a)the Minister’s reason for the cancellation; and
(b)a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.
8A cancellation under this section has effect on and from:
(a)if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(b)if:
(i)     the person’s visa was cancelled under subsection (4); and
(ii)    the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(c)the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
9The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a)if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b)if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
10In this section:
business visa means:
(a)a visa included in a class of visas, being a class that:
(i)     has the words “Business Skills” in its title; and
(ii)    is prescribed for the purposes of this paragraph; or
(b)a visa:
(i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii)    that is of a kind prescribed for the purposes of this paragraph; or
(c)a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
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.
established business in Australia visa means a business visa a criterion for whose grant:
(a)relates to the applicant having an established business in Australia; or
(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member’s visa means a business visa held by a person:
(a)who is or was a member of the family unit of another person who held a business visa; and
(b)who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment‑linked visa means a business visa a criterion for whose grant:
(a)relates to the holding of a designated investment; or
(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
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.
relevant designated investment, in relation to an investment‑linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment‑linked visa.
return visa has the same meaning as in the regulations.

The power of cancellation is discretionary, as is shown by the use of the word “may”, and I must consider all the circumstances of the case in deciding what is the correct or preferable decision.
Ms Zhu made a statement and gave oral evidence audio-visually before the Tribunal from China about the plans she had to make use of the visa and the difficulties she has faced.
The COVID-19 pandemic has interrupted plans which she had in 2020. Travel to and from China was also significantly interrupted until late last year. She proposes to move to Australia to conduct two businesses here.
She conducts two businesses presently in China. One is concerned with communications including mobile phones and other electronics. She has a majority interest in that company and plans to list that company in China. The listing will fund the completion of her film (referred to at [23] below) and any necessary investment in the proposed Australian businesses. The other company is in the film and culture industries and as well in the games industry.
Ms Zhu said that she is aware that Australia has a very solid foundation in the gaming industry and one of the reasons she obtained the visa was that she wishes to make video games here and export them to China. In 2020 she set up a company called Hummingbird Investment Group Pty Ltd to employ teams for games production, and she still has that intention and the intention to move to Australia in the next one to two years for that purpose. The delays related not only to the ability to travel here, not removed until late last year, but also the renewal of her passport.
There are two businesses which she desires to conduct in Australia.
She has made a movie, which includes four animated intellectual property (IP) characters, and she proposes to have local Australian video coders create a video game using the four IP characters, which must await the release of the movie. That release in China has been delayed as a result of government COVID prohibitions affecting movie attendance. As a result the video game business is also held up for the time being.
Secondly, since 2021 she has also wished to establish a themed tourist operation for Chinese, Singaporean and Southeast Asian tourists. It will involve fishing, surfing, scuba diving, and for tennis fans, a visit to the Australian Open. The tourism will be in Cairns, the Gold Coast, Sydney and Melbourne.
The travel restrictions imposed by the Chinese government in China significantly delayed her in coming here earlier, and in starting up her tourist operation.
She proposes to make an initial investment of $2 million in the themed tourist operation.
She came to Australia in March 2023 to do market research for her proposed tourist business.
Both proposed business ventures, that is the themed tourism and the video game development, are current proposals of Ms Zhu. She desires to retain her visa so that she can move here and commence trading here. Without a permanent visa she cannot travel here and stay here for substantial periods. She expects to move to Australia in the next one to two years.
I accept Ms Zhu’s evidence. I regard the presence of two of her children in Australia as a strong indication of her desire to come here.
I also take into account that it would be unfortunate for her son if his mother’s visa were cancelled for reasons explained in [3] above.
The purpose of the visa was to encourage skilled and successful entrepreneurs to come to Australia and to contribute to the local economy. Ms Zhu is a successful entrepreneur, who paid taxed of about 5 million dollars last year. She fits well into the category of persons who is in the national interest to attract here.
In my opinion, the events which led to Ms Zhu being unable to come here earlier were beyond her control.
In my opinion, the correct or preferable decision is, in the exercise of the residual discretion, to set aside the cancelation of the primary visa holder’s visa, with the consequence that the associated visa holders, Mr Chang Liu and Mr Shihe Liu, will also retain their visas.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate
Dated: 21 August 2023

Date(s) of hearing: 27 April 2023 & 4 August 2023

Solicitors for the Applicant: Mr S Dong, ProActive Legal

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Mr M Sheedy, Sparke Helmore Lawyers

[2023] AATA 2652

21 August 2023

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	27 April 2023 & 4 August 2023
Solicitors for the Applicant:	Mr S Dong, ProActive Legal
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Mr M Sheedy, Sparke Helmore Lawyers