FEDERAL COURT OF AUSTRALIA Baldassarra v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 239 MIGRATION – judicial review – permanent Business Skills (Residence) (Class BH) visa – refusal of visa by delegate for failure to meet criterion relating to number of full-time employees – application to Migration Review Tribunal – two and a half year delay between application and hearing – sale of business in meantime – no business owned at time of Migration Review Tribunal decision – ownership of business necessary criterion at time of decision – no other meritorious grounds – judicial review application dismissed Migration Act 1958 (Cth) VITTORIO BALDASSARRA AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS WAD104 OF 2004 FRENCH J 11 MARCH 2005 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W104 OF 2004 BETWEEN: VITTORIO BALDASSARRA FIRST APPLICANT GRACE BALDASSARRA SECOND APPLICANT NINO VITTORIO BALDASSARRA THIRD APPLICANT LUCA CARLO BALDASSARRA FOURTH APPLICANT ALESSIA ROMAN BALDASSARRA FIFTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 11 MARCH 2005 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W104 OF 2004 BETWEEN: VITTORIO BALDASSARRA FIRST APPLICANT GRACE BALDASSARRA SECOND APPLICANT NINO VITTORIO BALDASSARRA THIRD APPLICANT LUCA CARLO BALDASSARRA FOURTH APPLICANT ALESSIA ROMAN BALDASSARRA FIFTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 11 MARCH 2005 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 Vittorio Baldassarra, a citizen of the United Kingdom, came to Australia with his family on a temporary business visa in 1998. In 2001 he lodged an application for a Business Skills (Residence) (Class BH) visa. He and his wife were then the owners of the Malibu Fish and Chip Takeaway in Safety Bay. The application for a visa was refused on the basis that the evidence did not establish that the business employed three full-time employees or their equivalent as required by criteria for the grant of such a visa. Mr Baldassarra then applied for review of the delegate's decision to the Migration Review Tribunal (the Tribunal). He lodged his application in October 2001 but did not get a hearing until December 2003. In the meantime, in May 2002, he sold the business and moved with his family to Kalgoorlie where he worked as a contractor and part-time truck driver. 2 In April 2004, the Tribunal affirmed the decision of the delegate. It did so on the ground that Mr Baldassarra was no longer the owner of a business. An ownership interest in a business is a criterion for the grant of the Business Skills (Residence) visa. By selling the business Mr Baldassarra had lost any chance of establishing his entitlement to the visa. 3 Mr Baldassarra nevertheless sought judicial review of the Tribunal's decision. His application for judicial review could not succeed. It was not in dispute that he did not have ownership of a business at the time of the Tribunal's decision. Nor was it in dispute that such ownership was a necessary criterion for a grant of the visa. Other grounds of review advanced did not have any merit. I dismissed the application on the day of the hearing and now publish these reasons. Factual Background 4 Vittorio Baldassarra and his wife Grace were born in Scotland. They have three children, Nino, Luca and Alessia who were also born in Scotland. All are citizens of the United Kingdom. Mr Baldassarra first visited Australia on 17 May 1994 under a temporary visa which expired on 5 June 1994, the day on which he departed Australia. He returned to Australia on 27 February 1998 with his family on a Temporary Business Visa with an expiry date of 4 August 2001. On 10 August 2001, Mr Baldassarra lodged an application for a Business Skills (Residence) Class BH visa naming the members of his family as secondary applicants. The application was made on the basis that he was the owner of a business being the Malibu Fish and Chips Takeaway in Safety Bay, Western Australia which he had purchased in March 1998 in partnership with his wife. Pending the resolution of his application, Mr Baldassarra and his family members were granted bridging visas which are still in effect. 5 On 3 October 2001, a delegate of the Minister refused the application on the basis that the applicants did not meet the criteria for the grant of a visa in any of the relevant subclasses. The delegate applied a business skills points test criterion set out in the Migration Regulations and found that Mr Baldassarra did not satisfy it. The criterion required that in the twelve months immediately preceding the application, the business owned by the Baldassarras should have employed not less than three full time employees or a number of part-time employees working an equivalent number of hours. Such employees could not include the applicant or a member of his family unit. They had to be Australian citizens, Australian permanent residents or eligible New Zealand citizens. The business also had to have a turnover of not less than $A200,000. These criteria serve the primary objective of Business Skills migration, which is the creation of employment opportunities for Australians through the entry of skilled business people. 6 By reference to the profit and loss statement for the period July 2000 through to June 2001 the delegate did not accept that the business, with an annual salary cost of $29,331.44 had the equivalent of three full-time employees. The delegate did not accept Mr Baldassarra's claims in this respect as the wages were 'too low to credibly support such claims'. The delegate said: 'I find that Mr Baldassarra is unable to meet the above requirements as for the purposes of meeting the points test as he has not been able to demonstrate that he employees not less than three full time employees (or a number of part time employees working an equivalent number of hours).' (sic) The delegate found therefore that Mr Baldassarra failed to meet the requirements of Item 845.222 in Schedule 2 of the Migration Regulations. He therefore failed to meet the requirements for the issue of a subclass 845 visa. The delegate also considered Mr Baldassarra's application against the criteria for other kinds of visa in subclasses 840, 842, 843 and 846. She found that he failed to meet the requirements of those subclasses also. Subclass 846 relates to Regional Established Businesses. However the Safety Bay business was within the Perth metropolitan area which was not a Designated Area for the purpose of that subclass. 7 Mr Baldassarra and his family applied on 30 October 2001 to the Migration Review Tribunal (the Tribunal) to review the delegate's decision. Their application was not heard by the Tribunal until 11 December 2003. No explanation appears from the record for this extraordinary delay. Mr Baldassarra gave evidence to the Tribunal by telephone. As appears from the Tribunal's reasons for decision he told the Tribunal that he and his family had moved to Kalgoorlie/Boulder approximately five months previously. He said that the Malibu Fish and Chip Shop business had been sold approximately 18 months previously in May 2002. As he explained to the Court at the hearing of his judicial review application, somebody had made him an offer and he had accepted. He was concerned that if the application to the Tribunal were unsuccessful he would have had only a few weeks to dispose of the business before having to leave Australia. While his practical concerns were understandable it was the disposal of the business that, in the end, proved fatal to his application before the Tribunal. 8 Following the hearing, the Tribunal wrote to Mr Baldassarra on 18 December 2003. In the letter the Tribunal set out the effect of the sale of the business on his application for a Business Skills (Residence) (Class BH) visa. The Tribunal pointed out that Items 845.213 and 845.221 of the criteria set out in Schedule 2 of the Migration Regulations required that the applicant for such a visa have an ownership in an established business at the time of the decision. The Tribunal referred to Mr Baldassarra's evidence that he had sold the main business and that he had not established or purchased a new business at that time. It pointed out that he said he was not currently involved in a business and was employed on a casual basis. The Tribunal said: 'This is relevant to the review because it indicates that you no longer hold an ownership interest in a main business in Australia, and that you are no longer involved in the management of the business. Therefore it appears that you do not meet clause 845.221 and you do not meet all of the requirements for the grant of a subclass 845 (Established Business in Australia).' 9 The Tribunal said it had further investigated whether he might meet the requirements for any of the other subclasses of visa containing class BH. It pointed out that in order to be eligible for a subclass 840 (Business Owner) visa or a subclass 841 (Senior Executive) visa the relevant regulations required that he had notified the Senior Business Advisor of the Western Australia Small Business Development Corporation of his business history and his intention to develop a business in Western Australia. There was no evidence that this was done. 10 To be eligible for a subclass 842 (State/Territory Sponsored Business Owner) visa or a subclass 843 (State/Territory Sponsored Senior Executive) visa at the time that the application was made it was necessary to be sponsored by the Western Australia Small Business Development Corporation. There was no evidence of any such sponsorship. 11 To be eligible for a subclass 844 (Investment Link) visa it was necessary to have signed a declaration acknowledging the government's requirements in relation to residence in Australia as the holder of a visa in that subclass. Moreover it was necessary in relation to subclasses 840, 841, 842 and 843 visas to provide a signed declaration in the relevant form acknowledging the government's requirements in relation to residence in Australia as the holder of the relevant visa. There was no evidence that this acknowledgement was provided for any visa apart from a subclass 845 or subclass 846 visa. 12 The Tribunal also referred to the requirements for a subclass 846 (State/Territory Sponsored Regional Established Business in Australia) visa. Again there was a requirement for notification to the Western Australia Small Business Development Corporation of his business history in a designated area or designated areas in Western Australia. These designated areas had to lie outside the Perth Metropolitan area. The postcode for Safety Bay did not fall within the designated area. 13 The Tribunal invited Mr Baldassarra's written comments within 28 days of the date of notification of the invitation. 14 In his reply Mr Baldassarra said that the Immigration Department was aware of the area in which the shop was located when they first bought it and was 'satisfied with the area at that time'. As to the sale of the business he said that, in accordance with 'your stipulations', he and his wife had the shop when their initial application for residency was lodged and had it for two and a half years thereafter. The original application was declined. Mr Baldassarra claimed that they were informed by the Department that they no longer needed to keep the business as they were then on a bridging visa. Because the application was declined they felt it would be better to sell the business so they would not have the worry of having to sell it in a short period of time if their appeal was also declined. They also thought it might be an appropriate time to move somewhere different and see more of Australia. He pointed out that the only concern from the delegate had been that they might not have employed enough staff. However, he claimed he met all the criteria necessary and attached a Business Owner (Residence) Category sheet. He said that he hoped all concerns had been met as this had been a stressful and lengthy process for him and his family. 15 Mr Baldassarra said: 'We arrived in Australia in 1998 and applied for permanent residency in 2000. After being declined we appealed and heard nothing for two years even though the migration act 1958 (the act), contains provisions intended to ensure that both fair and speedy review process. It was only when I phoned the immigration department to determine how our appeal was progressing that I was informed that our file had been misplaced. In total it has taken four years to get where we are now and I truly feel that we have met all the criteria requested by the immigration department. We had a financially successful business and provided a very good and popular service for the community. We have three children who have lived in Australia from a very young age and both act and feel Australian. My family and I would dearly like to settle in this beautiful country and call it home.' (sic) 16 On 13 April 2004, the Tribunal gave its decision. It affirmed the decision of the delegate finding that Mr Baldassarra was not entitled to the grant of a Business Skills (Residence) (Class BH) visa. 17 On 17 May 2004, the Baldassarras lodged an application in this Court seeking judicial review of the Tribunal's decision. An amended application was filed on 7 October 2004. The Tribunal's Reasons for Decision 18 The Tribunal referred to the primary application and the financial documents about the Malibu Fish and Chips Takeaway business which were provided in support of that application. It referred to an earlier letter which it had sent on 13 October 2003 relating to hours worked by the business staff. The applicants' accountant had responded on 17 November 2003 and the advice from the accountant was set out in the Tribunal's reasons. The accountant had also provided additional employment records for certain of the staff. 19 The Tribunal then referred to the hearing which was convened on 11 December 2003 in which it emerged that the business had been sold in May 2002. It discussed Mr Baldassarra's subsequent work history in subcontracting and part-time truck driving. 20 The Tribunal said that it had asked Mr Baldassarra whether he had ever sought advice on the impact it might have on his visa application if he were to sell his business and not commence a new one. He said he had not. The Tribunal noted that Mr Baldassarra had sought a visa on the basis of his business and that it seemed odd not to question what might happen if he no longer held the business. Mr Baldassarra said that no-one had told him what effect the sale of the business might have on his visa application. They wanted to start up a new business in Kalgoorlie/Boulder but did not want to take the risk that they might not be allowed to stay in the country. 21 The Tribunal summarised questions put to Mr Baldassarra about payments made to staff in the twelve months prior to the lodgment of the application and his responses. 22 In its findings and reasons the Tribunal referred to the alternative subclasses of visa contained in class BH for which Mr Baldassarra might have been eligible. These have already been mentioned. It referred also to the criteria for those alternative subclasses of visa which could not be met. The Tribunal then said: '47. In order to be eligible for a visa, it is necessary to meet all of the requirements for the visa. As set out above, all of the relevant criteria are not met in relation to any of the visa subclasses contained in Class BH. As the primary visa applicant does not meet the primary criteria for the visa, the secondary visa applicants do not meet the secondary criteria. 48. Although the primary visa applicant referred to advice received from the Department and the Australian High Commission the application must be assessed on the basis of the legislation as it stood at the time that the application was made. Although the primary visa applicant has referred to delays in the review process, which are unfortunate, once the business was sold the primary visa applicant would not meet the relevant criteria regardless of the duration of the review.' The Amended Application 23 Mr Baldassarra's original application for judicial review was lodged on 17 May 2004. He filed an amended application on 7 October 2004 pursuant to orders made by Lee J on 11 June 2004 and 19 October 2004. The amended application invoked s 39B of the Judiciary Act 1903 (Cth) and claimed certiorari to quash the decision of the Tribunal and mandamus for referral of the matter back to a separately constituted Tribunal. The amended application had been prepared with the assistance of a lawyer but there was no lawyer on the record and Mr Baldassarra appeared on his own behalf at the hearing. The grounds of the application were as follows: '(a) a breach of the rules of natural justice occurred in connection with the making of the decision in that the Applicants had a legitimate expectation of a decision in their favour after a 2.5 year delay in the making of the decision by the Migration Review Tribunal; (b) the procedures which were required by law to be observed in connection with the making of the decision were not observed; (c) the decision involved an error or (sic) law whether or not the error appears on the records of the decision in that; (i) the decision maker took into account an irrelevant consideration in concerning itself with the minimum weekly award wage in determining whether the Applicants employed three full-time employees or the equivalent thereof in the 12 months preceding their application; (ii) the decision maker erred at law in determining that a full-time employee for the purpose of the regulations could only include an adult employee. (iii) the decision maker erred at law in taking into account an irrelevant consideration namely the hours worked by a full-time employee pursuant to the Restaurant, Tearoom and Catering Workers' Award No R 48 of 1978 in circumstances where that award had no application to the Applicants' employees. (iv) the decision maker erred at law in failing to determine that the appropriate definition of full-time for the purposes of the Applicants' business was the working of a 30 hour week. (v) the decision maker erred at law in failing to determine that the Applicants employed employees over the year preceding the application for a total number of hours exceeding 4680 in circumstances where there was evidence of this. (d) there was no evidence of other material to justify the making of the decision and/or; (e) the decision was otherwise contrary to law in that it was determined that the Applicants were required to continue to be operating their business at the time of the MRT's decision in circumstances where this was not legally correct.' Particulars of the grounds were promised on receipt of transcript of the Tribunal proceedings. However no further particulars were forthcoming. At the same time that he filed the amended application on 7 October 2004, Mr Baldassarra also submitted a written statement, again obviously prepared with the assistance of a legal practitioner, setting out his submissions. Statutory Framework 24 Section 65 of the Migration Act 1958 (Cth) (the Act) deals with the power of the Minister to grant or refuse applications for visas. It provides, inter alia that if the Minister is not satisfied that criteria for the grant of the visa prescribed by the Act or the Regulations have been satisfied then he or she is to refuse to grant the visa. 25 Section 31 of the Act provides that there are to be prescribed classes of visas (s 31(1)) and that the Regulations may prescribe criteria for a visa or visas of a specified class (s 31(2)). Part 2 of the Migration Regulations deals with visas. Regulation 2.01 provides, inter alia, that for the purposes of s 31 of the Act the prescribed classes of visas are such classes (other than those created by the Act) as are set out in the respective Items in Schedule 2. Regulation 2.02 provides that Schedule 2 is divided into Parts, each identified by reference to a subclass of visa. By reg 2.03 the prescribed criteria for the grant to a person of a particular class are the primary criteria set out in the relevant Part of Schedule 2 or, if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. 26 Part 1 of Schedule 1 to the Regulations sets out the various permanent visas prescribed by the Regulations. Item 1104A of that Part prescribes the Business Skills – Established Business (Residence) (Class BH) visa. The subclasses in Schedule 2 which are relevant to that visa are identified in Item 1104A(4) as subclasses 845 (Established Business in Australia) and 846 (State/Territory Sponsored Regional Established Business in Australia). 27 The provisions of Schedule 2 relating to subclass 845 set out in Item 845.21 criteria which are to be satisfied at the time of application for the visa. These include the criteria set out in Item 845.213: 'The applicant: (a) has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and (b) continues to have an interest of that kind.' Criteria to be satisfied at the time of decision are set out in Item 845.22. Item 845.221 requires that: 'The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.' The Merits of the Application for Review 28 The first ground of the application asserts that a breach of the rules of natural justice occurred in that the applicants had a legitimate expectation of a decision in their favour after a two and a half year delay in the making of the decision by the Tribunal. In the written statement in support of their application, the applicants said that they had a legitimate expectation that the review of their application would be dealt with fairly and speedily. They say they relied upon the lack of action by the Tribunal in making Australia their home. Their children have now spent the bulk of their lives in Australia and have embraced the Australian culture. They say that as a result of the delay by the Tribunal in reviewing the departmental decision the decision ought, in the interests of natural justice, to be in favour of the applicants. 29 There is no legal basis for this contention. The legal obligation on the Tribunal to apply the criteria prescribed by the Act in determining whether or not to grant a visa cannot be affected or modified by delay in processing and deciding the application for review, however unfortunate and inexcusable the delay may be. 30 The ground alleging failure to comply with procedures required to be observed in connection with the making of the decision was not particularised in the amended application. Nor was it addressed in the written submissions. 31 The third ground, as explained in the written submissions related to the decision of the delegate. The decision of the delegate is not before this Court for judicial review. In any event, any errors of law that might have been made by the delegate are irrelevant to the outcome of the review application before the Tribunal. The Tribunal has an obligation to hear and determine the question of eligibility for the relevant visa afresh. It is not entitled to take into account the delegate's views on matters of either law or fact. 32 In this case the Tribunal's decision turned critically upon the question whether the criterion for ownership of an established business was satisfied. 33 The no evidence ground referred to in the amended application was unparticularised and unsupported by any submission. 34 The fifth ground was that the Tribunal's decision was contrary to law to the extent that it reflected a requirement that it was necessary that the applicants be operating their business at the time of the Tribunal's decision. 35 It is clear from the terms of the criteria for subclass 845 visas and, in particular, the criterion referred to in Item 845.213 read with Item 845.221 in the Second Schedule, that the Tribunal was correct in law. It is a criterion, to be satisfied at the time of the Tribunal's decision, that the applicant has had an ownership interest in one or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application and '... continues to have an interest of that kind'. It is not in dispute that at the time of the hearing before the Tribunal and at the time the Tribunal made its decision Mr Baldassarra had no ownership interest in a business in Australia. On that basis he could not satisfy the criterion in Item 845.221 and pursuant to s 65 of the Act the Tribunal had no alternative but to affirm the delegate's decision and to refuse the grant of a visa. 36 This conclusion was explained orally to Mr Baldassarra in the course of the hearing of the judicial review application. I ordered then that the application be dismissed with costs and now publish these reasons for so doing. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.. Associate: Dated: 11 March 2005 Mr V Baldassarra appeared on his own behalf and on behalf of his family. Counsel for the Respondent: Mr J Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 March 2005 Date of Judgment: 11 March 2005 Date of Publication of Reasons: 11 March 2005