Zuellig, C.G. v Minister for Immigration Local Government and Ethnic Affairs

[1990] FCA 424

JUDGMENT No. . a . . m . . o o . o . . . . . 9f.$~ .*oe.,a, 90 ,,

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CATCHWORDS

ADMINISTRATIVE LAW - Immigration - Application for review of decision to cancel temporary entry permit - interlocutory relief

- denial of natural justice - meaning of "working" and "in
employment" as found in Australian visa and temporary entry

permit.

Administrative Decisions (Judicial Review) Act 1977

Judiciarv Act 1903: S. 39B

Miaration Act 1958

Miaration Leaislation Amendment Act 1989

CHRISTOPHER GILBERT ZUELLIG v MINISTER FOR IMMIGRATION LOCAL
GOVERNMENT AND ETHNIC AFFAIRS

NG 372 of 1990

Sydney

Lockhart J.

12 July 1990

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IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG372 of 1990

)

GENEFUG DIVISION 1

BETWEEN: CHRISTOPHER GILBERT ZUELLIG

Applicant

AND:  MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDERS:	LOCKHART J.
DATE ORDERS MADE:	12 JULY 1990
WHERE ORDERS MADE:	SYDNEY

MINUTE OF ORDER

THE COURT ORDERS THAT:

1.    The parties bring in short minutes of order to give effect to the Court's reasons for judgment.

2.    The costs of today's proceedings be costs in the principal proceeding.

NOTE
--	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG372 of 1990

1

GENERAL DIVISIOU )

BETWEEN: CHRISTOPHER GILBERT ZUELLIG

Applicant

AND :  MINISTER FOR ILXMIGRATION
LOCAL GOVT AND ETHNIC
AFFAIRS

Respondent

12 JULY 1990

REASONS FOR JUDGMENT

LOCKHART J. :

This is an unfortunate case. The applicant is a national

of the Philippines. His mother is a Swiss national and his

father a Filipino. The applicant is 27 years of age.

He obtained in Berne Switzerland, on 12 December 1989, a

visitor's visa for multiple entry to Australia issued in these

terms : 

" I s s u e d on 12 December 1989 f o r m u l t i p l e

t r a v e l	b e f o r e 12	D e c	90	f o r s t a y s i x months
s u b j e c t	t o grant	o f e n t r y permi t	on	each

a r r i v a l . Work p r o h i b i t e d . "

He entered Australia on 15 February 1990 and was granted a temporary entry permit. He left Australia on 8 April and returned on 16 April and was then granted a further temporary

permit.

He proposes to leave Australia in two days tune, 14 July, to travel to Switzerland to marry and then to return to Australia again in August this year. The temporary permits which have been issued to him are endorsed "Employment prohibited without written permission of an authorised officer".

The purpose of his visit to Australia in February this year was to inspect his family's company, Halas Dental Limited ("Halas"). Halas is a wholly owned subsidiary of Stevens KBS Limited ("Stevens"), a New Zealand public company sixty per cent of the shares of which are owned by the Zuellig family.

The applicant's father and uncle control the worldwide operation of all the companies in the group which include Stevens. The worldwide turnover of the business controlled by the family is in excess of one billion dollars Australian.

The worldwide businesses include pharmaceutical wholesaling of textiles machinery and other consumer goods and insurance	in South East Asia, feed mills in South East Asia, the importing
broking. Halas is one of Australia's largest dental companies with an annual turnover of AS28 million.
The applicant was appointed a director of Halas soon after his arrival here, namely on 20 February 1990. The applicant has a number of qualifications at a tertiary level. He holds the degree of Bachelor of Science in Economics from the Wharton School of Finance at the University of Pennsylvania which he obtained in 1986. In 1988, he graduated with a Master of Business Administration from IMEDE Lausanne In Switzerland.
He has worked for various bodies in London, Washington DC and Paris, carrying out consultancy work, concentrating on streamlining the operations of companies to make them more efficient and profitable. He has joined the family business.
Prior to the acquisition of Halas by Stevens in 1987, Halas was deteriorating due to the sickness of Mr Halas who had founded the company in 1950. The management of the company of Halas was left in some disarray and the applicant's father and uncle decided to expand the Halas business, subject to the applicant's investigating its affairs to ensure its future viability. It was accepted by the family that some restructuring would be necessary and the family asked the applicant generally to look at the company's progress in Australia. He therefore came to
Australia.
On 11 December 1989, approximately 2 months before the applicant arrived here, Halas had lodged on his behalf an application for a temporary residence permit. The letter to the Department of Immigration which accompanied the application requested the issue of a temporary residence permit for two years and it assigned as the reasons for the grant of it the facts relating to Halas and the Zuellig family, which I have briefly summarised.
The form of application was obviously a standard departmental form, as would be expected in the circumstances. Provision is made in paragraphs S 4, SA, and 6 for information which relates to the necessity for the engagement of staff from overseas by Australian companies rather than obtaining staff from within the Australian workforce. These questions have all been answered, nil, though the letter accompanying the application makes it plain that the Halas view was that the circumstances of the Zuellig family's majority interests ln Halas, the necessity to restructure and re-organize it and the applicant's special training in systems management and restructuring of organizations, were sufficient to cause the temporary residence status to be conferred upon him.
On about 22 January this year, a Mr Steward who is a solicitor in Melbourne and who acted for Halas, telephoned an
officer of the immigration department and was informed that the application would be proceeding to Sydney as the sponsor company,
Halas, was in that city.
On 27 February, Mr Steward telephoned another officer of the immigration department requesting information as to the progress of Halas' application and was told that the application was "on screen" but because of severe staff shortages, it would not be processed for some weeks but that the officer himself could see no problems with it.
On 8 May, Mr Steward then wrote to the Department of Immigrat~on a letter which stated that, amongst other things, that the applicant had arrived in Australia on 15 February and "wishes to go to Europe in June to get married and return to Australia to resume his work" and said that he would be grateful if the application could be processed before the applicant left in June and asked for any other requirements to be made known to him.
On 15 May, M r Steward was contacted by a MS Watson of the Department of Immigration who informed him that the labour testing requirements had not been complied with. A discussion took place between them which it is unnecessary for present purposes to relate.

The next event of relevance occurred on 18 May when a tlr

with MS Watson when she asked for payment of the application fee	Roth who was a director of Halas had a telephone conversation	for the sponsorship application and more details on Halas and the job the applicant would perform if the application for sponsorship succeeded. Mr Roth then wrote to the department on
18 May giving certain information about Halas and the applicant.
Mr Roth requested a meeting with MS Watson but she was herself
in a meeting and could not speak. He later telephoned her and she said that the application was being processed.
Then on 6 June the applicant was telephoned by a Mr Wilkinson of the department and asked to attend his office in Sydney on the following day which the applicant did. A conversation then ensued between them, the terms of which are set out in an affidavit of the applicant of 12 July and I need not relate in detail. It is sufficient to say that the applicant gave information to Mr Wilkinson as to what he had been doing in Australia and at the end of the meeting Mr Wilkinson asked the applicant to summarize in written form why he should be allowed to stay in Australia and what he had been doing here.
The applicant wanted to be given further time to prepare this document but M r Wilkinson inslsted that it be done immediately. The applicant then wrote out a document and left it with Mr Wilkinson. The document is in evidence as exhibit 2 and it is a succint summary of various matters including the applicant's statement as to what he has been doing in Australia since his arrival here in February. A brief summary of the
contents of the document, which I think provides the best evidence of what he has been doing in Australia since his arrival
here, is that he recites something of the Zuellig family and of its corporate connections in Australia; that Halas is in need of substantial restructuring and that the applicant came to Australia to assist in this respect. He says in the document:

"Af ter h a v l n g s p e n t more t h a n a

month	a c c l i m a t i s i n g	m y s e l f	t o
Sydney ,	I	was	n a t u r a l l y a n x i o u s

t o l e a r n m o r e a b o u t Ha las . I was

f u l l y aware	t h a t	i n o r d e r	t o d o
my job	e f fec t ive ly I	would	f i r s t

h a v e t o familiarize m y s e l f w i t h

the way the o r g a n i z a t i o n

c u r r e n t l y	d o e s	b u s i n e s s	s o	I
s t a r t e d	t o	t a l k	t o p e o p l e	i n the

o r g a n i z a t i o n . I b e l i e v e d t h a t

th i s would h e l p me push m y agenda

f u r t h e r a l o n g . Time i s r u n n l n g o u t and we, a s the investors, want t o see r e t u r n s on o u r money.

To this d a y I	d o not	see m y s e l f
a s work ing a t Ha las .	I	am not an

employee o f Halas and I d o not

recieve a s a l a r y from Halas . I

a l s o	p e r f o r m	a	p u r e l y
i n v e s t i g a t i n g r o l e	a t	Ha las .	I

d o not interfere w i t h the d a y t o

d a y o p e r a t i o n s . I only observe

l i ke a c o n s u l t a n t would p r i o r t o

his recommendat ions .	I	am	n o t
a ware	what	the	t e c h n i c a l

d e f i n i t i o n o f work ing i s b u t a t

a l l t i m e s I never t h o u g h t I was

b r e a c h i n g the c o n d i t i o n s o f entry

a s a v i s i t o r . "

Halas wrote to the department on 19 May this year giving

further information about the applicant and his training and

other matters relevant to the department's request for further	information bearing upon the application for temporary resident's
status. By letter of 29 June 1990 addressed to the applicant, the department asserted that he was in breach of his visitor's permit, which I take to be his temporary entry permit, in that he had been working in Australia and the letter proceeded to say that in accordance with certain of the migration regulations his entry permit ceased to be in force from the date of his receipt of the letter of 29 June and he was required to make immediate arrangements to depart from Australia.
He was informed that £allure to tell the compliance sectlon of the department in Sydney of his departure arrangements would result in action being taken to enforce his departure. On 11 July this year a solicitor acting on behalf of Halas, the sponsor for the applicant in the December 1989 application for temporary residence status, lodged an Application for Review by the Migration and Internal Review Office with the Department at its office for the Eastern Region in New South Wales of the decision declining to grant Halas' application.
The applicant applies to this court for a review of the respondent's decision to cancel his temporary entry permit and the decision refusing Halasf application to sponsor the applicant under the Skills Transfer Scheme. The applicant seeks today interlocutory orders to prevent him being deported from Australia and to ensure that he may re-enter Australia during the currency
of his Australian visa.
The applicant bases his claims on both the Administrative Decision lJudicial Review) Act 1977 and S. 39B of the Judiciarv
. The form of the application itself is deficient in more than one respect, but counsel for the respondent, very properly in the circumstances, did not take any point on this at least for the purposes of today's hearing.
However, the application must be put in proper form and otherw~se in order and for that purpose I give the applicant leave to file and serve an amended application by 10.00 am tomorrow morning, 13 July.
The application is to be considered in the context of the Miaration Act 1958 and the Migration Regulations. The Miaration was substantially amended in 1989 by the Miaration Leaislation Amendment Act 1989', Act No 59 of 1989, which has introduced a substantially different regime of migration law
practice and procedure.
This is an interlocutory hearing so I shall first consider whether there is a serious question to be tried and whether on the balance of convenience and generally in the exercise of the discretion of the court orders ought to be made to protect whatever rights the applicant has. Any findings that I make are, of course tentative only, and reflect no final view on anything,
whether questions of fact or of law.
Halas's application to sponsor the applicant for resident status is now the subject, as I have said, of an application for review before the Migration Internal Review Board, but there is in my view at this stage of the case certainly no legal right of the applicant to be in Australia whilst or before, that review takes place. Indeed, by the very nature of an application for sponsorship for resident status and review proceedings thereafter, the person being sponsored would at least in most cases be outside Australia. In this connection compare Patakh v Minister of State for Immiaration, Local Government and Ethnic Affairs, an unreported declsion of Sheppard J of 17 November 1989 in particular at page 10.
The correctness of the department's decision refusing this sponsorship application is a matter to be determined by the departmental review process which the applicant has already envoked. I am not satisfied that the applicant has a justiciable right for relief in this court with respect to that decision.
The nub of the case is the applicant's contention that the temporary entry permit was unlawfully cancelled. This has two facets to it. The first is whether the applicant was denied natural justice, as he contends he was, by not being given a proper opportunity to be heard and to put his case to establish that he was not working or in employment in Australia. I am not
persuaded on this branch of the case that a sufficiently strong case has been established to cause interlocutory relief to be
given. The recital of the evidence which I have already given I think illustrates that the applicant was given a reasonable chance to put relevant material orally and in writing, bearing on this question. One must not take a narrow or technical a view of departmental practices in that regard.
The remaining question, which is the vital question it seems to me at this stage of the case, is whether or not there is a seriously arguable question to go to trial of whether on the evidence before the Court the applicant was in fact working or in employment within the meanmg of those expressions as set out in the Australian visa and temporary entry permit respectively.
The facts mentioned earlier about the applicant's activities in Australia do, in my view, raise a serious question to be tried as to whether he has breached the conditions of his Australian visa and temporary entry permit or either of them. It raises a question of substance which is inappropriate for resolution at this stage of the case.
I was helpfully referred by counsel for the respondent, however, to a decision of Gummow J in Broussard v The Minister for Immiaration, Local Government and Ethnic Affairs, unreported
13 December 1999 where his Honour discussed, in particular at
page 7, the meaning of the word "employment" in the context of
the Miaration Act. I propose to follow that decision being as
it is a decision, of another Judge of this Court at first instance.
I think it is a difficult question whether on the facts the applicant has been working or in employment in Australia. His case that he was not in employment here must, I think, be stronger than his case that he was not working here; but the facts do raise a real and seriously arguable question as to whether he has breached the conditions of his Australian visa and temporary entry permit, and therefore whether the temporary entry permit itself was validly cancelled. That last is the critical question. I am satisfied that the resolution of these questions must abide the trial.
Other matters, of course, are relevant to the exercise of discretion in the matter, and I have carefully considered what has been put to me by counsel 'for both parties. I have been asked by counsel for the respondent not to grant interlocutory relief in the absence of appropriate undertakings of the respondent relating to his departure from Australia; but I do not think it is appropriate to require any such undertakings in all the circumstances.
I should add this is not a case where there is any suggestion of the applicant being in some way a hazard or a risk to the Australian community by his presence here. The evidence
is to the contrary.
I propose to grant interlocutory relief to the applicant to ensure that the respondent takes no steps to deport the applicant or to refuse him re-entry to Australia whilst his Australian visa and his temporary entry permit remain alive. Whether the respondent can cancel the temporary entry permit in the future, or indeed the visa, in his discretion under the Act (S. 35 in the case of entry permits and 26 in the case of visas) is not a matter for me to consider. All this Court can do is to protect the applicant in relation to the purported cancellation of the temporary entry permit of 29 June this year. For this purpose the Court acts on the assumption for this interlocutory proceeding that the permit is still on foot and was not validly cancelled.
The interests of justice and fairness call in my view for this relief in the present ease. I described it as an unfortunate case and it is. It is not, of course, for the Court to travel beyond the evidence before it or to substitute its views or its discretion8 for those of the decisionmaking authorities, as I have said on a number of occasions in past cases and as has been said by others including Full Courts of this Court and by the High Court. That is obvious.
It is, however, to be hoped that the applicant, Halas and the department may in some way solve rationally and by common
company with a very large business here to be efficiently run by sense the problems that have arisen in this case and allow a
those who have authority to run it.
As to costs, it is true that the applicant has succeeded in today's proceedings, but the relief sought and the grounds in support of it have been the subject of oral submissions by counsel for the applicant and bear little resemblance to the application as filed which initiated this case and upon which the respondent was brought here. I think in all the circumstances the fair order for costs is that the costs of today's proceedings be costs in the principal proceeding.

I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for judgment herein of the Honourable

Mr. Justice Lockhart.

7 1 , ! ' c/

Associate u ~ d z L c cL*q

Dated: 12 July 1990 I

Counsel for the Appicant	J.R. Therry-Ward
Solicitors for the Applicant :	Norton Smith & Co.
Counsel for the Respondent	C.J. Stevens
Solicitors for the Respondent:	Australian Government Solicitor

Date of Hearing 12 July 1990

Date of Judgment 12 July 1990