FEDERAL COURT OF AUSTRALIA Kim v Minister for Immigration & Multicultural Affairs [2001] FCA 1063 MYUNG SOOK KIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 593 OF 2001 LINDGREN J 1 AUGUST 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 593 OF 2001 BETWEEN: MYUNG SOOK KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 1 AUGUST 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 593 OF 2001 BETWEEN: MYUNG SOOK KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 1 AUGUST 2001 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 The applicant ("Ms Kim"), a national of Korea, born on 8 August 1957, seeks review of a decision of the Migration Review Tribunal ("the Tribunal"), apparently given on 18 April 2001, by which the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, "the Delegate" and "the Minister") made on 18 June 1996 that Ms Kim was not entitled to the grant of a Business (Temporary) (Class TB) visa. Although Ms Kim is the only applicant before the Court, before the Tribunal she had co-applicants, namely, her husband and their son, who were "secondary applicants". legislation 2 I will outline the relevant legislative provisions, but only to the extent to which they are relevant to this matter. 3 Subsection 29(1) of the Migration Act 1958 (Cth) ("the Act") empowers the Minister to grant a non-citizen permission, to be known as a visa, to remain in Australia. Section 30 provides that a visa to remain in Australia may be a permanent visa or a temporary visa. The visa for which Ms Kim applied was a temporary visa. 4 Section 31 provides in subs (1) that "[t]here are to be prescribed classes of visas", in subs (3) that the "regulations may prescribe criteria for a visa or visas of a specified class" (my emphasis), and in subs (5) that a visa is a visa of a particular class if the Act or the regulations so specify. Subsection 40(1) provides: "The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances" (my emphasis). Subsection 41(1) provides: "The regulations may provide that visas, or visas of a specified class, are subject to specified conditions" (my emphasis). 5 Section 65 provides that "[a]fter considering a valid application for a visa, the Minister", "if satisfied" of certain things specified in the section, "is to grant the visa", or, "if not so satisfied, is to refuse to grant the visa". One of the things specified is that the "criteria" for the visa prescribed by the regulations have been satisfied. 6 Section 475 provides that certain decisions are, and other decisions are not, "judicially-reviewable decisions". By virtue of par 475(1)(a), a decision of the Tribunal is a judicially-reviewable decision. Section 476 provides that application may be made for review by this Court of a judicially-reviewable decision on any one or more of the grounds specified in subs 476(1). 7 The particular ground on which the applicant relies is that specified in par (e) of subs 476(1) which reads as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;…" 8 Section 485 provides that this Court does not have any jurisdiction in respect of judicially-reviewable decisions other than the jurisdiction provided by Part 8 of the Act (comprising ss 474 to 486) or by s 44 of the Judiciary Act 1903 (Cth), while s 486 provides that this Court "has jurisdiction with respect to judicially-reviewable decisions" and that "that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution". 9 Division 2.1 of the Migration Regulations 1994 (Cth) ("the Regulations") provides for classes, criteria and conditions of visas as well as other matters. Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are, inter alia, the classes set out in the respective items in Schedule 1 to the Regulations. Regulation 2.02 provides in subreg (1) that Schedule 2 to the Regulations "is divided into Parts, each identified by the word 'Subclass' followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass". Regulation 2.03 provides that for the purposes of subs 31(3) of the Act, the prescribed "criteria" for the grant to a person of a visa of a particular class are the "primary criteria" or, if relevant, the "secondary criteria" set out in the relevant Part of Schedule 2. Ms Kim, as the primary applicant within the family unit, was required to satisfy the primary criteria. Regulation 2.04 provides that for the purposes of s 40 of the Act, the only "circumstances" in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2. Regulation 2.05 provides, inter alia, that for the purposes of subs 41(1) of the Act, the "conditions" to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. 10 Ms Kim lodged her application for the visa on 29 May 1996, that is, prior to 1 August 1996, on which date the Migration Regulations (Amendment) Regulation (SR No 76 of 1996) commenced. That amending Regulation omitted item 1202 from Schedule 1 to the Regulations and omitted from Schedule 2 to the Regulations "Part 412 (Independent Executive)". However, the amending Regulation provided in clause 41, under the heading "Transitional (Applications for Class TB visas)", as follows: "41.1 This regulation applies to an application for a Business (Temporary) (Class TB) visa that had not been finally determined within the meaning of subsection 5(9) of the Act before 1 August 1996. 41.2 An application to which this regulation applies must be decided in accordance with the criteria that applied to the application on 31 July 1996." The effect of this transitional provision was that Ms Kim's application for a Business (Temporary) (Class TB) visa had to be decided in accordance with the criteria that applied to such an application on 31 July 1996. 11 As at 31 July 1996 there was listed in Schedule 1 to the Regulations, item 1202, "Business (Temporary) (Class TB)(1)", which listed various subclasses including "Subclass 412 (Independent executive)". Schedule 2 prescribed, inter alia, the "Criteria to be satisfied at time of application" (412.21) and "Criteria to be satisfied at time of decision" (412.22) in respect of such a visa. It is the criteria to be satisfied at the time of the decision with which the present case is concerned. 12 The Tribunal found that Ms Kim satisfied the criteria specified in Schedule 2 except the following one: "412.224 The Minister is satisfied that the establishment of the new business referred to in clause 412.221 will provide Australia with substantial international trade or other economic benefits." Clause 412.221, referred to in clause 412.224, was as follows: "The applicant establishes that he or she is acting as an individual intending to establish a new business in Australia". the proceeding before the tribunal 13 The Tribunal noted that Ms Kim and her son entered Australia on Short Stay (Visitor) visas on 29 November 1995 which expired on 29 February 1996; that on 27 February 1996, "the visa applicants" [sic] were granted an extension of their visitor visas, valid until 29 May 1996; and that on 29 May 1996 the subject application for the Subclass 412 visa was lodged and the "visa applicants" [sic] were granted bridging A visas on the basis of that application. On 23 June 1996 Ms Kim's spouse arrived in Australia on a Short Stay (Visitor) visa valid until 23 September 1996. On 28 July 1997 all three of the visa applicants before the Tribunal were granted Bridging C visas which ceased on 12 June 2000. All three visa applicants continued to hold their Bridging A visas granted on the basis of the application for the Subclass 412 visa which was the subject of the application for review before the Tribunal. 14 The Tribunal noted that the visa application was made on the basis that Ms Kim would act as an individual intending to establish a new business in Australia (criterion 412.221). The Tribunal summarised the information that was before it. The business which Ms Kim wished to establish was that of a real estate agent selling land in Australia to "Korean investors". The Tribunal was satisfied that Ms Kim met all criteria except the one which I set out earlier, although it had some doubts about the evidence supplied by her in relation to some of the other criteria. 15 The Tribunal's reasons in relation to criterion 412.224 were expressed in paras 27 and 28 of its reasons for decision as follows: "27. The primary visa applicant must also meet clause 412.224 which is to the effect that she must satisfy the Tribunal that the establishment of the business will provide Australia with substantial international trade or other economic benefits. This is a criterion that must be met at time of decision. The primary visa applicant has submitted that the business will attract Korean investors seeking Australian real estate and will create new employment. She has not given few details of how the funds will be invested in the business beyond a general reference to rent, wages and advertising. The Tribunal has had regard to the policy guidelines as to the policy intention of the term "substantial international trade or other economic benefits". Under policy, the adjective "substantial" applies to the economic benefit as well as the trade. Although an applicant is not required to quantify in any detail the benefits expected to flow from the business, the visa applicant should be able to demonstrate that the business activity will be regular and of sufficient volume to provide trade or other economic benefit of a "worthwhile and important measure". The primary visa applicant has lodged evidence that she has successfully introduced 10 buyers in the last three years to Mr Park. All the buyers appear to have purchased residential property for an average price of about $480,000. She has not given any projections for the business other than to suggest that the favourable publicity arising from the Olympic Games will make Australia an attractive place for Korean investors. She has proposed that the business will employ two support staff as well as two real estate agents and that the positions would be created at the time the business was established and has claimed that employment will be generated by the development of properties sold. She has also claimed that her experience in Korean real estate and her ownership of her own database of clients will enable her to introduce new business skills in Australia. 28. On the evidence before it the Tribunal is not satisfied that the primary visa applicant has demonstrated that the economic benefits derived from the sale of real estate to foreign investors (bearing in mind the restrictions on ownership of real estate regulated by the Foreign Investment Review Board), will be regular and of sufficient volume as to be regarded as substantial. Although [the] primary visa applicant has submitted projections of four employees [of] the business the Tribunal does not accept that she has demonstrated that the proposed business activity or the number of employees will provide substantial benefit to Australia. Neither does the Tribunal consider the business skills that the primary visa applicant will introduce can be described as new. Accordingly, the Tribunal is not satisfied that the real estate business that the primary visa applicant proposes to establish will provide Australia with substantial international trade or other economic benefit ." my reasoning on THE present application for review of THE tribunal's decision 16 In essence Ms Kim submits that the Tribunal failed to give proper weight to certain matters, for example, the irregular nature of the selling of real estate. Again, Ms Kim submits that the Tribunal should have regarded the sale of $4.8 million worth of real estate over three years to Korean residents as satisfying the expression "substantial international trade or other economic benefits". It is not shown, however, that in its appreciation of the evidence and in its failure to find that the expression quoted was satisfied by Ms Kim's selling activity, the Tribunal committed any error of law. 17 In a submission filed in Court, counsel for Ms Kim seized upon the reference to the Foreign Investment Review Board ("the Board") in para 28 of the Tribunal's reasons set out above. He submitted that the Tribunal failed to take into account the following considerations: "(i) There is no restriction on foreigners purchasing commercial property for up to 5 million dollars. Permission is only required if the purchase is over 5 million dollars. (ii) With regard to residential property non residents must obtain permission from the FIRB. However, FIRB will give permission to anyone with at least 1 year's temporary stay visa to purchase property provided the persons live in the property and sell same upon departure from Australia. (iii) With regard to vacant residential land, no permission is required from the FIRB, provided the purchaser builds on the land within 12 months. (iv) No FIRB permission is required when foreigners are offered pre-approved real estate overseas." 18 It seems to me that what the Tribunal was saying in para 28 was that Ms Kim's business activity to date recounted in para 27 did not demonstrate that the "economic benefits" derived from her sale of Australian real estate to Korean residents were or would be "substantial", and that it was to be noted that there was inevitably some restriction on the extent to which the criterion could be satisfied by activity of the kind on which she relied by reason of the restrictions on ownership of Australian real estate by foreigners permitted by the Board. 19 That there was such a restriction is consistent with para (ii), set out above. It was "residential property" that Ms Kim had been selling, and, according to para (ii), a Korean resident would not be entitled to purchase a residential property in Australia without first obtaining permission from the Board. 20 No doubt the Tribunal might have gone on to discuss the extent to which persons with "at least one year's temporary stay visa" are interested in purchasing Australian residential property through Ms Kim, and the Board's policy in relation to other Korean nationals. But the Tribunal's failure to pursue such questions does not constitute an error of law. The Tribunal's reference to the Board was only parenthetical. It is clear that in thinking that Ms Kim's activity would not be "regular and of sufficient volume as to be regarded as substantial", the Tribunal was applying the expression "substantial ... economic benefits" to the evidence of Ms Kim's past business activity in Australia summarised in para 27 of its reasons for decision. 21 Further evidence that this is what it was doing may be found in "Procedures Advice Manual 3" which was before the Tribunal. In effect, that document states, relevantly, that in applying the clause 412.221 criterion of "substantial international trade or other economic benefit", the Tribunal should consider whether the business activity in question would be "regular and of sufficient volume" to provide Australia with international trade or other economic benefits. It will be appreciated that the Tribunal used the expression "regular and of sufficient volume" in para 27 of its reasons. conclusion 22 No error of law is established and the application must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 8 August 2001 Counsel for the Applicant: Mr T A Kolomyjec Solicitor for the Applicant: Davidson James & Associates Counsel for the Respondent: Mr D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 1 August 2001 Date of Judgment: 1 August 2001