FEDERAL COURT OF AUSTRALIA Warwick International College Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 683 MIGRATION – appeal from Migration Review Tribunal – refusal of approval of applicant as standard business sponsor – whether tribunal asked the wrong question in requiring applicant to comply with undertakings as to financial responsibilities from its own income or assets – decision of tribunal a privative clause decision within protection of s 474(1) – no "jurisdictional error" Judiciary Act 1903 (Cth) s 39B Migration Act 1958(Cth) s 474(1) Migration Regulations 1994 (Cth) reg 1.20D(2)(f)(ii) Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 applied R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 cited WARWICK INTERNATIONAL COLLEGE PTY LTD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q 48 OF 2003 HEEREY J 8 JULY 2003 MELBOURNE (HEARD IN BRISBANE) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q48 OF 2003 BETWEEN: WARWICK INTERNATIONAL COLLEGE PTY LTD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 8 JULY 2003 WHERE MADE: MELBOURNE (HEARD IN BRISBANE) THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q48 OF 2003 BETWEEN: WARWICK INTERNATIONAL COLLEGE PTY LTD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 8 JULY 2003 PLACE: MELBOURNE (HEARD IN BRISBANE) REASONS FOR JUDGMENT 1 The applicant Warwick International College Pty Ltd seeks relief under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Migration Review Tribunal which affirmed a decision of the respondent Minister finding that the applicant did not meet the criterion for approval as a "standard business sponsor" prescribed by reg 1.20D(2)(f)(ii) of the Migration Regulations 1994 (Cth). 2 Division 1.4A of the Regulations provides a scheme for the approval of persons as business sponsors. A subsection 457 visa may be granted on the nomination of an employer who is a standard business sponsor. 3 Regulation 1.20D(2) prescribes various criteria for approval as a standard business sponsor including, under reg 1.20D(2)(f), that the Minister is satisfied that while there is in effect a Subclass 457 visa for the employee the applicant for approval as a business sponsor is able, in relation to such visa holder, "to comply with the undertakings given by the applicant in accordance with form 1067". Those undertakings include various financial responsibilities in relation to the visa holder, eg deduction of tax instalments, the making of superannuation contributions, the payment of debts for the use of Commonwealth benefits to which the person has no entitlement, medical and hospital costs and repatriation costs. Material before the Tribunal 4 A migration agent lodged the present application on behalf of the applicant on 26 June 2001. Sponsorship was to be in favour of a Mr Jin Tao. By a letter dated 23 July 2001 the Department pointed out that "no concrete financial information" had been provided. It was said that the applicant would need to provide evidence of the company's current financial state, usually provided in the form of a profit and loss statement, and evidence of the payment of Mr Tao during his employment of the business for the past two years. 5 By a letter dated 22 August 2001 the agent provided details from the applicant's accountant concerning expenditure undertaken by the applicant for the financial years 1998 to 2001. No detail was provided concerning income received, profits made or any other financial information. 6 On 12 November 2001 the agent provided to the Department a letter dated 5 November 2001 from Oriental English College (OEC) of Shenzhen, People's Republic of China. Amongst other things the letter stated that the writer (Professor Li Xue-Ping) and investors associated with OEC had conducted business with a Mr B Y Cheung for a number of years. Professor Li had spoken with Mr Cheung and expressed interest on behalf of himself and his fellow investors in OEC in establishing an International High School in Australia. Mr Cheung had agreed to undertake the necessary steps to establish such a school provided the initial start-up capital could be provided from China. In China there was some sensitivity about educating Chinese children overseas and for this reason the establishment of an overseas educational institution must be undertaken by overseas residents. Land in Warwick had been found for the construction of the school. Two companies were established in Australia: Chinese Australia Developments Pty Ltd was to hold the assets in the project and the applicant was to conduct the school. Professor Li understood that since mid 1998 almost $500,000 had been advanced by the investors in these companies for the purpose of establishing the school premises, obtaining the necessary approvals and paying the staff. It was decided that the applicant would start using the Queensland curriculum at college premises in China and fourteen Queensland teachers had been hired to travel to China to commence teaching on 29 January 2002. The students studying at the college in China would be paying A$20,000 per annum each which would provide the ongoing cash flow to enable the project to reach fruition. The funds required to finalise the project would then be remitted to Australia through the usual banking channels. 7 The project subsequently developed to also include a location in Armidale New South Wales. In a fax dated 3 April 2002 addressed to the agent Professor Li on behalf of OEC said that money would be telegraphically transferred to the trust account of the agent "for and on behalf of (the applicant) as and when it is required to complete the purchase of the assets in Armidale NSW and Warwick Queensland. We expect the money will be forwarded to you within the next two to three months." In the meantime, so that there would be available funds to satisfy the Department that the applicant had ready money available in Australia, OEC would "immediately telegraph the transfer" to the agent's trust account an advance of loan funds to the value of $100,000. It was said this money would be available to the agent "to pay for any of the ongoing expenses incurred with relation to the Warwick International project both in Warwick and Armidale NSW and in particular to pay, if required, wages to the representatives in Australia of the project including Jin Tao". It was noted that foreign exchange control authorities in China would need to approve the transaction. The fax concluded by saying that the money should be in the agent's trust account by no later than 30 April 2002. 8 A copy of this fax was provided to the Tribunal by the agent under cover of a letter dated 8 April 2002 which stated that the money referred to in the OEC letter had not yet been received but that the agent would advise the Tribunal immediately it was received. However there was no evidence of the A$100,000 or any part thereof being received by the agent by the date of the hearing before the Tribunal (17 May 2002) or the Tribunal's decision (19 March 2003). 9 In a statement provided with the application for review the agent stated that the applicant was a company which was supported by the OEC, a large private educational institution in Shenzhen. Members of the entity which owned the OEC provided the finance for the college project and for the applicant. Tribunal's decision 10 After reciting the evidence the Tribunal noted that it had to be satisfied that the applicant had "sufficient funds in order to meet the financial obligations it wishes to undertake". This was accepted by counsel for the applicant as a "relatively accurate" paraphrase of the criterion imposed by the Regulations. The Tribunal considered that on the basis of the evidence provided the applicant was not yet operating in Australia and was entirely dependent on OEC for financial support. The Tribunal then said: "34. Investors in China currently provide funds to Warwick International College because of the relationship between Warwick International College and related schools in China said by the agent in a submission to be: the sister schools of the Warwick International College in the Peoples Republic of China presently, Oriental English College, (Shenzhen PRC), Stone High School (Shenzhen, PRC), Jie Doong High School (Shan Tau, PRC), Guangxi English School (Guangxi, PRC) together with three other schools. 35. The evidence at hearing was that the investors are associated with the sister schools. These schools have students who wish to come to Australia to study. Central to the connections has been Professor Lee. He is the chairman of directors of the review applicant and is to be associated with another company that was not in existence at the time of hearing. He is also involved in the Oriental English College. 36. There is no contractual relationship between the review applicant and the source of funds. The submission made was that such a contract would be unusual in China and that knowing people is more important and that verbal agreements are more important. The agent explained that funds come from a Hong Kong based accountant for necessary expenses. 37. Mr Cheung, was a director of China Australia Developments Pty Ltd but he is not now in good health and is withdrawing from the project. The concept of the international school was originally his. 38. There is no evidence of the review applicant's capacity to meet its financial obligations. There is evidence of the ownership of assets in the name of other entities but the legislation requires the review applicant to be able to meet the requirement of regulation 1.20D(2)(f)(ii)." Applicant's case 11 The applicant contended that: (a) The Tribunal wrongly interpreted reg 1.20D(2)(f) as requiring the applicant to be able to comply with the undertakings given only from its own income or assets. The Tribunal then made its decision otherwise than in accordance with the law, asked itself the wrong question and identified a wrong issue. (b) The Tribunal failed to take into account a relevant consideration, namely whether the applicant was able to comply with its undertakings by utilising an external source of funds, having regard to evidence that the OEC had undertaken to lend the applicant A$100,000. (c) There was no evidence to support the Tribunal's finding that there was no evidence of the applicant's capacity to meet its financial obligations and/or that funding was not available on the evidence. The privative clause 12 Section 474(1) of the Migration Act 1958(Cth) provides: "(1) A privative clause decision (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any Court; and (c) is not such to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account." 13 It is not in dispute that the decision of the Tribunal was a "privative clause decision" insofar as it purported to be a decision of an administrative character made under the Regulations. No question of lack of good faith arises: see R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615. 14 The question then arises whether there had been "jurisdictional error" so as to make the decision not a decision "under the Regulations" and therefore outside the protection of s 474(1): Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. 15 Argument was conducted on the basis that the issues were (i) Did the Tribunal commit an error? (ii) If so, was that error "jurisdictional"? Conclusion 16 I am unable to discern any error, whether of fact or law, in the Tribunal's approach. The question whether, as at the date of its decision, the Tribunal was satisfied that the applicant would be able to comply in the future with the relevant undertakings was a question of fact. The undisputed evidence was that the applicant had no assets and no contractual rights against any other entity to provide assets, either for meeting the obligations the subject of the undertaking, or at all. Importantly, the sum of $100,000 promised "immediately" for that very purpose on 3 April 2002 had not been provided almost a year later. The conclusion of the Tribunal was plainly open to it on the evidence. No error is disclosed. Therefore the second issue does not arise. Section 474 prevents review. Orders 17 The application will be dismissed with costs, including reserved costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 8 July 2003 Counsel for the Applicant: D Rangieh Solicitors for the Applicant: Butts & Barkley Counsel for the Respondent: M Brady Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 25 June 2003 Date of Judgment: 8 July 2003