FEDERAL COURT OF AUSTRALIA Haroon v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 837 MOHAMMED HAROON v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 559 of 2003 MOORE J SYDNEY 8 AUGUST 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 559 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MOHAMMED HAROON APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 8 AUGUST 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 559 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MOHAMMED HAROON APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 8 AUGUST 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Driver FM of 23 April 2003, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the appellant a Business Skills (Residence) (Class BH) subclass 845 visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant a national of Fiji. When making its decision, the Tribunal had before it the Department's file and the Department's decision record. The appellant and his wife gave oral evidence to the Tribunal on 18 July 2002, and additional evidence concerning the appellant's business was provided to the Tribunal. 3 Regulations made under the Act establish the criteria for the grant of a Business Skills (Residence) (Class BH) subclass 845 visa. According to 845.222 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"): (1) The applicant's score on the business skills pointes test is not less than the number of points that is specified for the purposes of this subclause by Gazette Notice. (2) For the purposes of subclause (1): a. An applicant's score on the business skills points test is the sum of the applicant's scores under: i. Division 1.4 of Schedule 7; and ii. Parts 2, 3 and 4 of that Schedule; … The Gazette Notice referred to in subclause (1) specifies a total of 105 points. 4 Item 7170 in Division 1.4 of Schedule 7 of the Regulations (which directly related to subclass 845) provides that: Throughout a period of 12 months immediately preceding the making of the application, the main business or main businesses of the applicant or that of the applicant and applicant's spouse: (a) employed not less than 3 full-time employees (or a number of part-time employees working an equivalent number of hours) each of whom: i. is not the applicant or member of the family unit of the applicant; and ii. is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; and (b) either: i. had a turnover of not less than AUD200,000; or ii. exported goods or services of a value of not less than AUD100,000. 5 At the hearing before the Tribunal, the applicant's representative made a number of submissions regarding his businesses, which were summarised by the Tribunal at [24] and [25]: On 21 August 2002 the migration agent supplied the following submissions: [The visa applicant] first had an interest in Haroon M Fashion [sic] from 1994. He ceased being part of the business in March 2000. The business was operated under a business name registered pursuant to the relevant NSW Act. His second business in Australia – Haroons Saree & Gold Palace operated from September 1999 - January 2000. The third business from February 2000 to now is Haroons Saree Palace. Again this was a registered business name. Accordingly as all businesses were operated by him either alone or with partners in the same area of Fashion. As such they were not separate legal entities as a company is and should be taken as one business actively operated over time. In relation to the requirement that throughout the 12 months preceding the making of the application, the applicant employed not less than 3 full term [sic] employees the migration agent stated that the business had four full time workers during this period and set out their names, addresses and dates of birth. The migration agent stated that all these employees were wither Australian citizens or permanent residents, however only two of these employees were paid on the books whilst the other two employees were paid in cash. 6 The Tribunal did not accept this submission. In its reasons it said: …to score 60 points for the purposes of clause 845.222(2)(a), the review applicant must demonstrate that 12 months prior to lodgement of his application (on 19 February 1999) there were at least 3 full-time employees in the businesses who were not members of the visa applicant's family unit. Unless the visa applicant receives a score of at least 60 points under Division 1.4 it will not be possible to achieve the pass mark of 105 points. At this stage, it is necessary to ascertain which of the visa applicant's businesses is eligible to be considered under this criterion. The visa applicant's migration agent has submitted that all three businesses, Haroon's M Fashions, Haroons Saree and Gold Palace and Haroon's Saree Palace were in fact one continuing entity and should be assessed as such for the purposes of the application. The Tribunal does not agree with this submission. A Statutory Declaration dated 22 March 2000 advised that the visa applicant and his partners Mohammed Azfal and Mehtab Begum had decided to control their business Haroon M Fashions separately and that there was a distribution of the assets and liabilities of the business and this is recorded in the financial statements for Haroon's M Fashions. It is also clear from the evidence given by the visa applicant and Mrs Haroon (whom the Tribunal found to be genuine and credible witnesses) that they broke away from the business which was formerly operated in partnership with Mrs Haroon's sister, Haroon's M Fashions. That business continued to be operated by Mrs Haroon's sister and the visa applicant and Mrs Haroon were no longer involved in it. The partnership was dissolved. The visa applicant and Mrs Haroon were clear in their evidence that they intended to break away from Mrs Begum's business and begin their own, albeit in the same market. They opened a new business, under a new name (Haroon's Saree and Gold Palace). This business continued until January 2000. There then appears to have been a break in the business until 16 February 2000 when the business reopened under the new name of Haroon's Saree Palace. … Even if the Tribunal accepts that Haroon's Saree Palace was an extension of the business of Haroon's Saree and Gold Palace, that business did not commence until 13 September 1999 and so was not in operation throughout the 12 months prior to the application being made. Additionally, on the basis of the visa applicant's evidence and the financial statements provided for the business, that business did not employ 3 full time or casual equivalent Australian citizen or permanent resident employees prior to the application being made. There is insufficient evidence for the Tribunal to be satisfied that Haroon's M Fashions employed not less than 3 full time employees (or a number of part time employees working an equivalent number of hours)… 7 The Tribunal went on to state that even if it did accept that Haroon M Fashions met par (a) of Item 7170, the applicant's businesses needed to satisfy subclause 845.222(b). This item requires either a turnover of at least $200,000 or the export of goods not less than $100,000 throughout the 12 months period preceding the application. The Tribunal noted that the only business that had operated for an extended period preceding the application was Haroon M Fashions. The appellant had ceased involvement in that business some months before his application was lodged, and, in the Tribunal's opinion, it was not possible to demonstrate turnover at the prescribed level throughout the 12 month period preceding the application. 8 Before Driver FM, the appellant submitted firstly, that the Tribunal erred in making the decision it did concerning the turnover of the appellant's businesses and secondly, that the Tribunal erred in making the finding it did concerning the number of employees in the businesses over the relevant period. 9 The appellant contended that the decision of the Tribunal was unreasonable (in the Wednesbury sense). His Honour did not accept that the Tribunal's decision was so unreasonable that no reasonable person would have made it, noting that it was clearly based on item 7170 of the Migration Regulations. 10 As to the other matter, the Federal Magistrate firstly reviewed the evidence before the Tribunal in relation to the question of employees. His Honour said, at [5]-[6]: On the evidence relied upon by the applicant at the hearing before the MRT, it was apparent that he could not satisfy the first criterion relating to employees. The applicant, in a statement provided after the MRT hearing, sought to overcome this difficulty by setting out details of persons said to be employees (court book, pages 282-283). However, it is clear that the MRT could not be satisfied that any employees of businesses operated by the applicant in the 12 months prior to his visa application were full time or were paid, as opposed to being friends or family. 11 Concerning the question of the turnover of the business his Honour said, at [11]-[12]: The applicant was involved in several businesses over a relatively short period. All appear to have been dealing with retail fashion for the ethnic Indian market but the businesses otherwise may or may not have had much in common. The turnover for Haroon M Fashions when aggregated with the turnover for Haroon's Saree and Gold Palace, on [the applicant's solicitor]'s calculation, could be taken to exceed more than $200,000 over the 12 months prior to the making of the visa application, but that would require a number of assumptions, including that there was a relatively even income throughout the relevant period of the two businesses. The MRT did not get to that level of detail in its examination of the matter because it took the view that only Haroon M Fashions had been established long enough to be eligible for assessment under this requirement. I am not satisfied that this approach by the MRT was so obviously wrong as to be unreasonable. In any event, as I have already found, the applicant was unable to satisfy an essential element of item 7170 in that his business or businesses could not be shown to have employed not less than three full-time employees over the relevant period. 12 The Federal Magistrate dismissed the application for review with costs. 13 The appellant was not represented in the appeal in this Court until a day or two before the hearing. No written submissions were filed by the appellant nor was any attempt made to amend the notice of appeal or the original application for judicial review. For reasons which will be apparent shortly, it is unnecessary to consider whether the matters raised in the submissions of the solicitor appearing for the appellant could be raised having regard to the way the matter has been litigated to this point. Indeed it is not necessary to determine whether they constitute grounds of review available in circumstances such as the present. The appellant's solicitor made submissions concerning two grounds, though the second had several aspects. The first was that the Tribunal approached the appellant's application on the footing that the business, Haroon M Fashions, had been dissolved in September 1999 and this approach was not reasonably open. Reference was made to a statement dated 22 March 2000 signed by the appellant's sister in law and her husband, which was said to reveal that the business of Haroon M Fashions was not dissolved in September 1999. In my opinion the statement could be construed as indicating that the business was dissolved at that time. Accordingly the first point made on behalf of the appellant should be rejected. 14 A related criticism of the Tribunal's findings made in this appeal concerns who were the proprietors of the various businesses. As is apparent from the Tribunal's reasons, its conclusion that the appellant and his wife commenced a business called Haroon's Saree and Gold Palace after the appellant's involvement in Haroon M Fashions ceased was based on the evidence given by the appellant and his wife. The transcript of that evidence is not in evidence before me. It is true that in evidence before the Tribunal, there was a certificate of registration of a business name from which it might be inferred that the proprietors of Haroon's Saree and Gold Palace were the appellant, his sister in law's husband and a third party. However, it is not possible to conclude, on the limited material before me, that the Tribunal could not have reasonably reached the conclusion it did. 15 The last submission made on behalf of the appellant was that in written submissions made to the Tribunal after the hearing, it was claimed that there had been four employees employed in a business or businesses operated by Mr Haroon. If there was any uncertainty attending this asserted fact, then, it was submitted, the Tribunal should have obtained evidence from the employees. This point is of no substance. The decision of the Tribunal concerning the number of employees was based on the absence of probative material provided by the appellant. I am not aware of any authority which would suggest that the Tribunal was, in the circumstances, obliged to adopt the course advocated by the appellant's solicitor in this appeal. 16 No error on the part of either the Federal Magistrate or the Tribunal has been established on the grounds raised. The appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Moore. Associate: Dated: 8 August 2003 Solicitor for the appellant: Silva Solicitors Counsel for the respondent: Mr S Lloyd Solicitor for the respondent: Clayton Utz Date of Hearing: 6 August 2003 Date of Judgment: 8 August 2003