FEDERAL CIRCUIT COURT OF AUSTRALIA
SUN & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1266	

Catchwords: 
MIGRATION – Judicial review of a decision of the Migration Review Tribunal to affirm a decision of a Delegate not to grant the Applicants Business Skills (Residence)(Class DF) visas – failure to meet the requirements of cl.892.211 of the Regulations – no jurisdictional error revealed – application dismissed with costs.	

Legislation:
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.11(1)(b) & 16.01
Migration Act 1958 (Cth), s.134(10)
Migration Regulations 1994 (Cth), Schedule 2, cl.892.211(1)	

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24	

First Applicant:	Qingfen Sun	

Second Applicant:	ZHENQI ZHAO	

First Respondent:	MINISTER FOR IMMIGRATION & border protection	

Second Respondent:	Migration Review Tribunal	

File Number:	ADG 49 of 2014	

Judgment of:	Judge Simpson	

Hearing date:	2 December 2014	

Date of Last Submission:	2 December 2014	

Delivered at:	Adelaide	

Delivered on:	18 May 2015	
REPRESENTATION
Counsel for the Applicant:	Ms J McGrath	

Solicitors for the Applicant:	McDonald Steed McGrath Lawyers	

Solicitors for the Respondent:	Ms C Stokes for the Australian Government Solicitor	

ORDERS
(1)	The application filed on 14 February 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
(2)	The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Adelaide	
ADG 49 of 2014
Qingfen Sun	
First Applicant

zhenqi zhao	
Second 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”) made on 10 January 2014.  The Applicants had sought Business Skills (Residence) (Class DF) visas that had been refused by the Delegate to the Minister and the Migration Review Tribunal.
Orders sought
2.	The Applicants seek the following orders:
	“1.	An order in the nature of certiorari to quash the decision of the Second Respondent made on 10 January 2014 in Migration Review Tribunal case number 1209768.
	2.	A writ in the nature of mandamus requiring the Second Respondent to review the decision of the Delegate of the First Respondent made on 2 July 2012 according to law.
	3.	An order that the First Respondent pay the Applicant’s costs of this application.
	4.	Such further or other orders as this Honourable Court sees fit.”
Grounds relied upon
3.	The Applicants relied upon the following grounds of application:
	“1.	The Second Respondent committed jurisdictional error in determining that the periods the First Named Applicant spent outside of Australia were significant in terms of her ability to satisfy the requirement under Migration Regulation 1.11 that she had “maintained direct and continuous involvement and management of the business from day to day and in making decisions affecting the overall direction and performance of the business”.
	Particulars
	1.1	The Second Respondent noted that during the two year period prior to lodgement of the application for a visa subclass 892 the Applicant had spent the following periods outside of Australia:
	•	18 March 2010 – 3 May 2010
	•	5 May 2011 – 4 June 2011
	•	1 July 2011 – 7 October 2011 (decision paragraph 13)
	1.2	At paragraph 12 of the decision record the Tribunal adopts the finding of the Delegate that these periods were “significant”.  The Tribunal’s finding in this regard ultimately led to the Tribunal’s decision to affirm the decision of the First Respondent on the basis that it was not possible for a business owner to be directly and continuously involved in the management of her business from day to day for those periods (decision paragraph 20).
	2.	The Second Respondent committed jurisdictional error in finding that the First Named Applicant had not maintained direct and continuous involvement in management of her business from day to day and in making decisions affecting the overall performance of the business during those periods that she was not in Australia.
	Particulars
	2.1	Having accepted that:
	2.1.1	The Applicant bore responsibility for the tasks identified in the Applicants evidence regarding the management of her business; and
	2.1.2	That during her period of absence from Australia her husband undertook management responsibility for the business under direct instruction and guidance from her; and
	2.1.3	Having accepted that business issues would have been discussed by the First and Second Named Applicants over the phone during the First Named Applicant’s absences from Australia; and
	2.1.4	Having considered the telephone calls and email correspondence between the First and Second Named Applicants during this period the Tribunal was “not satisfied this amounts to direct and continuous involvement in the management of the business from day to day” (decision paragraph 17).
	3.	The Second Respondent committed jurisdictional error in failing to accept that providing direction and guidance from China to her husband in Australia regarding day to day management issues constitutes involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.
	4.	The Second Respondent committed jurisdictional error in failing to consider the two aspects of management responsibility, namely overall day to day involvement in management of the business, and making decisions affecting the overall direction and performance of the business, and failed to make any finding regarding the First Named Applicant’s involvement in making decisions affecting the overall direction and performance of the business during her absences in China.”
Material relied upon
4.	As well as the usual Green Court Book, the Court has been provided with a book titled “Further Court Book” containing documents from the Applicants’ solicitor.  The Applicants also rely on an affidavit of Jane Louise McGrath sworn 11 March 2014 and filed on 12 March 2014.  This affidavit annexed the transcript of the hearing before the Tribunal which took place on 1 November 2013.
Background
5.	The Applicants are nationals of the People’s Republic of China.  They had previously been granted a Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) visas (“the provisional visas”).  They entered Australia on 9 November 2007.  On 16 December 2011, the Applicants applied to the Department of Immigration and Border Protection for a Business Skills (Residence) (Class DF) visa subclass 892 (“the visa”).
6.	On 5 April 2006, the first named Applicant (“the Applicant”) established an Australian Proprietary Company called Australian Sheen International Trade Pty Ltd (ABN 34 119 129 421) (“Australian Sheen”) to carry on a taxi business. 
7.	To be granted the visa, the Applicant was inter alia required to satisfy reg.1.11(1)(b) and cl.892.211(1) of Schedule 2 to the Migration Regulation 1994 (Cth), (“the Regulations”).  Clause 892.211(1) is a ‘time of application’ requirement.  
8.	To meet the criteria set out in cl.892.211(1), the Applicant had to demonstrate that she had had an ownership interest in one or more main business(es) in Australia for a period of at least two years prior to the application being made.  It is to be remembered that the application was filed on 16 December 2011.
9.	The Applicant had been outside of Australia for the following periods:
•	Departed Australia 18 March 2010 and returned on 3 May 2010 (46 days);
•	Departed Australia 5 May 2010 and returned on 4 June 2010 (31 days);
•	Departed Australia 1 July 2011 and returned on 7 October 2011 (98 days).
It follows that during the two year period, the Applicant was relevantly outside of Australia for 25 weeks, or nearly 6 months.
10.	On 2 September 2009, Australian Sheen purchased a taxi licence.  The company acquired further taxi licences in March 2010 and April 2011.  Australian Sheen also purchased motor vehicles to be used as taxis.
11.	The Applicant claimed to have personally attended to the management of all aspects of the company’s business including, but not limited to:
•	Market research, financial analysis and planning;
•	Day-to-day finance control to ensure smooth cash flow;
•	Daily and monthly vehicle maintenance;
•	Recruitment of drivers;
•	Maintaining drivers’ personal and working records;
•	Making payments to drivers and evaluating their performance;
•	Monitoring market competition;
•	Contacting and attending to deal with repairers and the Taxi Council;
•	Enforcing occupational health and safety; and
•	Maintaining business records.
12.	She stated that she personally attended to the management of the company’s business and that she did so even during the periods that she was overseas.
13.	The Applicant sought to prove that she was personally involved in the management of the company by providing the Delegate, and later the Tribunal, with documents that she said provided the necessary evidence.  Those documents included, but were not limited to:
•	A statutory declaration of the Applicant made on 31 October 2013;
•	Originals and translations of work diaries covering the periods of the Applicant’s absences from Australia (during which periods the Applicant claimed that she continued to be involved in the management of the business);
•	Originals and translations of emails; and
•	Telephone statements.
Delegate’s decision
14.	The visa application was refused by a Delegate of the First Respondent on 2 July 2012 on the basis of a finding that the Applicant did not meet reg.1.11(1)(b) of the Regulations, and therefore did not satisfy the essential “main business” requirement of Schedule 2, cl.892.211(1) of the Regulations.
15.	On 5 July 2012, the Applicant applied for review by the Tribunal.
The Tribunal’s decision
16.	On 10 January 2014, the Tribunal affirmed the decision of the Delegate not to grant the visa.  
17.	In its reasons, the Tribunal noted that it was satisfied that the Applicant held an ownership interest in the business at the time of the Application.  The only issue for the Tribunal to consider, was therefore, whether the Applicant maintained direct and continuous involvement in the management of the business from day-to-day and in making decisions, affected the overall direction and performance of the business.
18.	The Tribunal accepted that the Applicant had a direct and continuous involvement as manager of the business and that she did the management tasks as claimed on a day-to-day basis when she was in Australia.  However, the Applicant was outside Australia and in China during the relevant two year period for approximately 25 weeks or nearly 6 months.
19.	The Tribunal found that the day-to-day management tasks identified by the Applicant were almost entirely tasks that could only be performed by a person onsite in Australia (para 15).  It also found that the Applicant’s husband was undertaking these tasks in her absence (para 16).  
20.	The Tribunal accepted that the Applicant maintained a level of involvement in the business while she was in China and that the Applicant discussed with her husband aspects of the business through telephone calls and email correspondence.  However, the Tribunal was not satisfied that this amounted to direct and continuous involvement in the management of the business from day-to-day (para 17).  In particular, it found that the business was managed directly and continuously by the Applicant’s husband for the three month period in 2011 when the Applicant was in China.  
21.	The Tribunal further found that the three month gap in managing the business was of such significance that it could not be satisfied that the Applicant maintained a direct and continuous involvement in the management of the business on a day-to-day basis for the two year period prior to lodging the visa application.  The Tribunal found that she did not meet cl.892.211(1) of the Regulations (para 18).
22.	As the Tribunal was not satisfied that the Applicant had maintained direct and continuous involvement in the business for a significant period (being the three month period in 2011) of the relevant two year period, it did not consider the Applicant’s involvement in the business during the remainder of the period (para 19).  
23.	As a result of these findings, the Tribunal decided to affirm the decision not to grant the Applicant a visa.  
24.	On 14 February 2014, the Applicant filed the application for judicial review in this Court.
The relevant legislation
25.	One of the criteria for the grant of a visa subclass 892 is that the Applicant satisfy the criteria set out at cl.892.211(1) of the Regulations.  This clause provided as follows:
	“(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.”
26.	The term “ownership interest” is defined in reg.1.03 of the Regulations which provides that the term “ownership interest” has the meaning given to it in subs.134(10) of the Migration Act 1958 (Cth) (“the Act”).  Section 134(10) states:
	“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.”
27.	Regulation 1.03 provides that the term ‘main business’ will have the same meaning as set out in reg.1.11.  In so far as it is relevant, r.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
	…”
Policy
28.	The relevant policy (which was set out in the Delegate’s decision and referred to by the Tribunal in its decision) is as follows:
	“Departmental policy regarding direct involvement in management is as follows:
	‘An Applicant is required to have been directly involved in managing a business.  Whilst it is not necessary for an Applicant to hold or be responsibility for the principal or dominant role in the management of a business, it is necessary that they have been directly involved in managing at least one facet of a main business.’
	…
	Management involves planning, organising, directing and controlling the resources of the business;
	…
	Departmental policy regarding continuous involvement from day to day is as follows:
	‘An Applicant is not required to be involved in the management of a business on a full time basis but they must be continuously involved in managing the business from day to day.  For a business to be considered a “main business” it is intended that the visa Applicant would be involved in actively managing the business or a part of the business:
	•	Without any significant or frequent breaks in their management involvement;
	•	Without any significant or frequent gaps in the activities of the business; and
	•	On any ordinary business day.
	A significant break or gap is one continuous period of 6 weeks or more or multiple shorter periods amounting to 6 weeks or more during which time the Applicant was not involved in managing the business or the business did not perform any activities.”
The grounds
29.	Although there were four grounds in the application, the Applicant indicated at the hearing that ground four would not be pressed.  I propose to deal with the remaining grounds one, two and three in numerical order.
Ground one
30.	This ground asserts that the Tribunal fell into jurisdictional error in finding that the periods that the Applicant spent outside of Australia, were significant in terms of her ability to satisfy the requirement that she maintained direct and continuous involvement in the business from day-to-day, and in making decisions affecting the overall direction and performance of the business.  
31.	The Applicant submits that the Tribunal fell into error in its construction of the criterion for the grant of the visa, and that the error was jurisdictional.  The Applicant simply submits that: 
	“The Tribunal was required to determine whether the Applicant had an ownership interest in her Australian business, in that she had maintained direct and continuous involvement in the management of the business from day-to-day and in making decisions affecting the overall direction and performance of the business for a period of at least two years prior to the visa application having been made”.
32.	The Respondent submits that ground one must fail.  They submit that, in truth, the Applicant is seeking merits review.  They submit that the Applicant asks the Court to form a view about the correctness of a factual matter, namely, the effect of the Applicant spending a quarter of the time during the relevant two year period overseas.  The Respondent points out that given the nature of the business, it required hands-on management and this could not be achieved whilst the Applicant was overseas.  
33.	The Respondent further submits that it was open to the Tribunal to find that those periods were significant and that the Tribunal’s finding was not unreasonable, irrational or illogical, as those terms have been considered by the High Court in, Minister for Immigration and Citizenship v SZMDS.  The Respondent further noted the oft quoted comment by Mason J in, Minister for Aboriginal Affairs v Peko-Wallsend Ltd that: “(m)ere preference for a different result, when the question is one on which reasonable minds may come to different conclusions …” is not a sufficient reason for overturning a judicial decision upon a review. 
34.	In my opinion, on a plain reading of reg.1.11(1)(b) it cannot be said that the Applicant, whilst she was overseas, maintained a direct and continuous involvement in the management of the business from day-to-day, including making decisions, affected the overall direction and performance of the business.  Whilst the Applicant may have attempted to continue such an involvement it is practically impossible for her to “directly and continuously” be involved in the management of the business from day-to-day.  To suggest otherwise does not accord with common sense.  Day-to-day management requires continuity and regular activity by the Applicant.  It was not present in this case.
35.	The Tribunal’s findings that:
•	the Applicant did not maintain direct and continuous involvement in management of the business from day-to-day for the two year period prior to the visa application being lodged;
•	whilst accepting that the Applicant maintained a level of involvement in the business as demonstrated by the email correspondence, it found that such involvement was not direct and was not continuous from day-to-day;
•	whilst accepting that the Applicant’s husband discussed aspects of the business with the Applicant while she was in China by way of telephone calls and email correspondence, this did not amount to “direct and continuous involvement in the management of the business from day-to-day; and
•	the Applicant did not satisfy cl.892.211. 
on the evidence before it, these were findings that it was entitled to make.
36.	Ground one is clearly without merit.
Ground two
37.	In this ground, the Applicant alleges that the Tribunal fell into jurisdictional error by finding that the Applicant had not maintained direct and continuous involvement in the business from day-to-day, and in making decisions affecting the overall direction and performance of the business.  
38.	The Applicant submits that the Tribunal committed jurisdictional error in failing to correctly consider the evidence of the Applicant’s involvement in the management of the business from day-to-day and in finding that a three vehicle business is not capable of being directly and continuously managed day-to-day by someone offshore for three months, rather than considering whether the Applicant had maintained direct and continuous involvement in the business from day-to-day.
39.	The Respondent submits that this ground must fail also as it, in effect, is again asking for a review of the merits.  They say that no other attack is made on this finding and that therefore the only conclusion available is that this was a matter that the Tribunal resolved. 
40.	The Applicant does not complain that the relevant evidence was not considered.  It simply argues that the Tribunal incorrectly applied or interpreted the evidence.  The findings that the Tribunal made were open to it on the evidence.  The conclusions that the Tribunal came to were not illogical, irrational or unreasonable. 
41.	In my view, ground two does not reveal any jurisdictional error.
42.	I agree with the Respondent that this ground is without merit.
Ground three
43.	In this ground, the Applicant asserts that the Tribunal fell into jurisdictional error in failing to accept that the direction and guidance that the Applicant provided to her husband from China in relation to day-to-day management issues, constituted involvement in the management of the business from day-to-day, and in making decisions affecting the overall direction and performance of the business. 
44.	The Applicant submits that the Tribunal did not specifically refer to the Departmental Policy set out in PAM.  The Applicant notes however, that the Tribunal does note at paragraph 12 of its decision, that: “However, as raised in the Delegate’s decision, there were significant periods when the Applicant was outside Australia.”  The Applicant submits that the reference to ‘significant periods’ or ‘frequent breaks’ in the management involvement, or ‘gap’ are references to terminology that appears in the policy only.  They submit that these terms are not used in the Regulations at all and that it is accepted that a failure by the Tribunal to follow the policy, does not constitute a jurisdictional error.  
45.	However, it is submitted by the Applicant that a failure to apply the guidelines has significance in establishing jurisdictional error on the part of the decision-maker in the construction of the relevant law.  The Applicant submits that the Tribunal in this matter had imported aspects of the policy in finding that the Applicant’s departure from Australia between 1 July 2011 and 7 October 2011 was a ‘significant period’.  However, the Applicant submits that if the Tribunal had properly applied the relevant PAM, the Tribunal would have accepted that:
•	the policy in relation to ‘direct involvement in management’, that it is necessary for the Applicant to be involved in managing at least one facet of a main business.  The Tribunal accepted that even whilst in China, the Applicant was involved in the first of the ten areas of management of the business, namely ‘market research, financial analysis and planning’ and that therefore the Tribunal should have found that the Applicant satisfied policy regarding ‘direct involvement in management’; and
•	the policy in relation to continuous involvement from day-to-day included where the active management of the business occurred without any significant or frequent breaks in management involvement, and that a significant break or gap is a continuous period of six weeks during which time the Applicant was not involved in managing the business, or the business did not perform any activities.
46.	The Respondent points out that the Tribunal accepted that the Applicant maintained a level of involvement in the business whilst she was in China, and that she discussed with her husband aspects of the business through telephone calls and email correspondence.  However, the Respondent submits that the Tribunal was not satisfied that this amounted to a direct and continuous involvement in the management of the business from day-to-day.  They say that, given the nature of the business and that it required hands-on management, the Tribunal’s conclusion was reasonable, logical and open on the material before it.  The Respondent submits that the Court should reject this ground.
47.	I agree with the Respondent that the conclusion arrived at by the Tribunal was reasonable, logical and open to it on the evidence before it.
48.	In the particulars provided in relation to this ground, the Applicant states that during her absence from Australia, her husband undertook management responsibility for the business under direct instruction and guidance from the Applicant.  This statement is, in my view, at odds with the Applicant saying that she had direct involvement in the management of the business.  The particular suggests that the husband was managing the business, not the Applicant.  In addition, it would seem to me that during these periods the Applicant, at best, had indirect management of the business.  In this event, the Applicant does not satisfy reg.1.11(1)(b).
49.	In my opinion, ground three fails.
Conclusions and orders
50.	As no jurisdictional error has been found, the application should be dismissed.
51.	I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:  

Date:  18 May 2015