FEDERAL COURT OF AUSTRALIA Lee v Minister for Immigration and Citizenship [2009] FCA 977 MIGRATION – applications made for Business Skills (Residence) (Class DF) visas – applications refused on the grounds that the appellants had a history of involvement in business activities that are of a nature that is not generally acceptable in Australia – whether cl 892.214 in Schedule 2 of the Migration Regulations 1994 (Cth) which proscribes such involvement is invalid because it is overly wide, vague and uncertain – held that cl 892.214 is capable of meaningful determination and a valid exercise of the delegated power in s 31(2) of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal misconstrued a test of "not generally accepted in Australia" with a test of "unlawful in Australia" – held that the Tribunal characterised the activities as, first, being "likely to be offensive to a large section of the Australian population", and secondly, as being "unlawful" - Tribunal did not misapply cl 892.214 – appeal dismissed Migration Act 1958 (Cth) – ss 31(2), 476 Migration Regulations 1994 (Cth) – cl 892.214 in Schedule 2 City of Brunswick v Stuart (1941) 65 CLR 88 – cited Evans v New South Wales (2008) 168 FCR 576 – relied on Ireland v Wilson (1936) All ER 358 - discussed King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184 – referred to Merrell v Roberts (1909) 26 WN (NSW) 73 - discussed R v Goreng-Goreng (2008) 220 FLR 21 – referred to GI WUN LEE, ME HWA SIN, NA MI LEE and HUN JUN LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL NSD 1947 of 2008 SPENDER J 28 AUGUST 2009 BRISBANE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1947 of 2008 GENERAL DIVISION ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: GI WUN LEE First Appellant ME HWA SIN Second Appellant NA MI LEE Third Appellant HUN JUN LEE Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER J DATE OF ORDER: 28 AUGUST 2009 WHERE MADE: BRISBANE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the costs of the first respondent, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1947 of 2008 general division ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: GI WUN LEE First Appellant ME HWA SIN Second Appellant NA MI LEE Third Appellant HUN JUN LEE Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER J DATE: 28 AUGUST 2009 PLACE: BRISBANE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal from orders made by Federal Magistrate Smith in the Federal Magistrates Court of Australia on 25 November 2008 dismissing an application by the four appellants who sought to review the decision of the Migration Review Tribunal (the Tribunal) of 18 June 2008, affirming a decision of the delegate of the Minister for Immigration and Citizenship (the delegate) made on 4 July 2007 refusing class DF "Business Skills (Residence)" subclass 892 "State/Territory sponsored business owner" visas. 2 The appellant husband and his wife came to Australia on temporary business visas in 2003, and established a car wash business in the North Rocks Westfield shopping complex. That business closed in late 2005, and the appellants say they then purchased "a bigger car wash business … employing 2 full-time Australian citizens" which was conducted at a Caltex service station at Lane Cove in Sydney. 3 On 23 January 2007, an agent lodged a residency visa application for the husband as primary applicant, and his wife and two children as secondary applicants. 4 Officers of the Department of Immigration and Citizenship (the Department) visited the business on 29 March 2007. They observed "4 young men working on two cars when we arrived". The first appellant told the officers that he had no "paperwork" at the business, and said that the employees were paid in cash. He later told the Department that the casual workers were "working holiday visa holders". However, their wages did not appear in the business's company accounts for 2006, and had not been declared to the Australian Taxation Office for any of the four quarters in 2006. 5 In a letter to the first appellant dated 19 February 2008, an officer of the Tribunal said, in respect of the employment of a number of casuals during the calendar year ending 31 December 2006, "it appears that the salaries of the casual employees had not been declared and that PAYG withholding tax obligations on their behalf had not been met". The letter was in relation to the criteria necessary for the grant of the relevant visas. 6 The letter referred to cl 892.214 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), which provided: Neither the applicant nor his or her spouse (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia. 7 In connection with the application for review to the Tribunal, the first appellant, in a letter to the Tribunal dated 17 March 2008, said: Due to the nature of the business, I had to employ a few people on a casual basis. And due to the lack of interest from the Australian general public in working in this type of labour work, I had no choice but to rely on overseas people such as working holiday makers for the required job. They work for a short period due to their travel plan and work limitation condition. This has been the main reason why they were omitted from employment declaration and PAYG withholding tax. I have now rectified this situation and will continue to do the right things. I regret about the default of conducting the business in the way that had gone through. 8 The Tribunal, in its reasons for decision , said: The Tribunal observes that the first named visa applicant has admitted by way of submission and oral evidence that he had paid cash to his carwash casual employees. The delegate found that the salaries had not been declared to the ATO and that PAYG withholding tax obligations on their behalf had not been met and that the first named visa applicant "had evaded tax obligations through participation in the 'cash' or 'black' economy and this behaviour "would be likely to be offensive or to give rise to controversy in the Australian economy". 9 The Tribunal later said: The Tribunal finds that the first named visa applicant's claims are based on what he thinks is a real world scenario and the reality of his industry. The Tribunal does not disagree with him regarding the nature of the employment scenario he outlined to it. But the crucial point is that he has admitted to breaking the law over a period of time by bypassing payroll tax, superannuation and workers' compensation payments through cash payments to his casual employees. The employees for their part have evaded paying income tax. He, therefore, has 'a history of involvement in business activities' meaning an elaborated, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful. Furthermore, although the first named visa applicant has claimed to have rectified these payments, he did not desist from this conduct until discovered by the Department on a site visit in regards to his Business visa application. The Tribunal finds that this behaviour may be prevalent in Australia due to the exigencies of certain employment situations (as the first named visa applicant claims) but it is, nevertheless not 'generally acceptable' in Australia because it is, in fact, a breach of the law of the land and avoidable. The Tribunal finds, therefore, that the first named visa applicant does not meet the criterion in clause 892.214. 10 On 4 September 2008, an Amended Application for an order to show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of the Tribunal decision was filed in the Federal Magistrates Court. 11 The grounds of that Amended Application were: 1. The decision of the second respondent was based on a statutory provision that is invalid. Particulars Clause 892.214 in Schedule 2 of the Migration Regulations 1994 was not a valid exercise of the legislative power delegated pursuant to s 31(2) of the Act since it is overly wide, vague and uncertain. 2. Further and in the alternative, the second respondent misconstrued clause 892.214 in Schedule 2 of the Migration Regulations 1994. Particulars (a) The second respondent erroneously considered that any conduct that is "a breach of the law of the land and avoidable" amounts to conduct that is "not generally acceptable in Australia" within the meaning of clause 892.214. (b) Because of its misconstruction of clause 892.214 the second respondent failed to consider whether, in the circumstances, the applicant's conduct might not have been "not generally acceptable in Australia". 12 The orders sought on that application were: 1. A declaration be made that clause 892.214 in Schedule 2 to the Migration Regulations 1994 is invalid and of no effect. 2. An order that a writ of certiorari be issued quashing the decision. 3. An order that a writ of mandamus be issued compelling the second respondent to re-determine the application according to law. 4. A declaration be made that the decision of the second respondent was made in excess of jurisdiction and is null and void. 5. An order that the first respondent pay the applicant's costs. 13 Before Smith FM, the principal contentions of the appellants, in conformity with the grounds of the Amended Application, were that the Tribunal erred by treating criterion 892.214 as legally valid, and that it confused the test of "not generally acceptable in Australia" with a test of "unlawful in Australia". 14 Federal Magistrate Smith said: 17. I note that the applicants did not submit that the Tribunal misconceived the criterion's reference to 'history' or 'involvement' or 'business activities' when addressing the applicant's conduct. They accepted that it was within the ambit of the criterion for the Tribunal to address the failure of the applicants' company to comply with PAYG and other legal requirements in relation to its employees over a period of 12 months prior to the visa application and continuing until these deficiencies were discovered by the delegate. In my opinion, this was properly conceded. 15 The contention by the appellant in written submissions made to the Federal Magistrates Court concerning the validity of that clause was: It is here contended that cl.892.214 is invalid for similar reasons as discussed in Vanstone v Clarke [(2005) 147 FCR 299]. The phrase "not generally acceptable in Australia" – even read with the words limiting it to "involvement in business activities" – is vague and so incapable of ready determination that it could mean almost anything. While one could readily point to conduct which would come within the provision – for example the border trading activities discussed in Minister for Immigration v Lay Lat (2006) 151 FCR 214 – the sheer breadth of possible circumstances in which the provision might be applied could leave a visa applicant subject to arbitrary exercise of a discretion of a decision maker as to whether or not the clause has been met. 16 Smith FM distinguished Vanstone v Clark, on the basis that the legislation in that case "does not provide any analogy with the delegated legislation which is challenged in the present case". 17 Concerning the contention that cl 869.214 was invalid because it was uncertain, Smith FM said: 24. The applicants' submissions referred to a statement by Starke J in Brunswick Corp v Stewart (1941) 65 CLR 88 at 97, cited by Weinberg J in Vanstone v Clark at [143]. This suggests that delegated legislation could be held invalid because it is "uncertain, that is, does not contain adequate information as to the duties of those who are to obey it … or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it". 25. The applicants argued that there was uncertainty or unreasonableness in the test of 'not generally acceptable in Australia', because it lacked a meaningful identification of the standards of 'acceptability' for business activities which were to be applied by a decision-maker. As a consequence, it was conceivable that decision-makers might apply their own idiosyncratic standards, and might penalise behaviour which was trivial or not deserving of the withholding of a visa. 26. However, I do not accept these arguments. … 18 Later at [31], Smith FM said: Contrary to the applicants' submissions which took me to Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752 [(Adultshop.com)], I do not accept that requiring an administrator to consider what is 'generally acceptable' business conduct in Australia is less meaningful than asking a censor to take into account "the standards of morality, decency and propriety generally accepted by reasonable adults". Unlike such standards, the standards governing unacceptable business activities would usually be identifiable by reference to Australia's laws and prevailing business ethics and practices. There would usually be little controversy about these. In doubtful situations, decision-makers would have access to expert or experienced sources of advice and information about relevant business standards. 19 It is to be noted that the Adultshop.com case did not involve a claim that the classification regime was valid because it required the review board to take into account, inter alia, "the standards of morality, decency and propriety generally accepted by reasonable adults" and that such a requirement was uncertain of meaning, or impossible of application. 20 Smith FM concluded: 32. I therefore do not accept that the criterion adopts a meaningless test, nor one incapable of application by the Minister and his delegates in a reasonable, consistent, and rational manner. 21 The second contention by the appellants before the Federal Magistrates Court was that there was an improper application of clause 892.214, namely: [The Tribunal] considered that the applicant's conduct may well have been generally acceptable in Australia in lay terms; however it did not form any conclusion on this since the mere fact that it was unlawful meant that the applicant could not satisfy clause 892.214. 22 Smith FM said that the description by the appellants of the Tribunal's reasoning was not a correct description of that process. 23 His Honour said: 35. … It is clear that the Tribunal took into account all the circumstances of the applicants' failure to comply with the relevant legislation, including the period of time over which the business had operated with 'black' labour, and the failure to rectify this situation until it was discovered on the site visit by Department officers. The Tribunal also took into account its assessment of how the conduct would be regarded generally in the Australian community. It concluded: He, therefore, has 'a history of involvement in business activities' meaning an elaborate, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful. 36. In its terms, this conclusion did more than reach a conclusion that the activities were unlawful. It shows that the Tribunal did consider whether the activities were "generally acceptable in Australia" from a broader perspective than legality alone. 24 Smith FM later said: 38. … I am not persuaded that [the Tribunal's] references to the unlawfulness of the conduct reveal that it confined its consideration of that element alone. …. 25 His Honour concluded: 39. I am therefore not persuaded that the Tribunal's reasoning shows that it proceeded upon a misconstruction of cl.892.214 or that it failed to consider any relevant matters. 26 Because the Federal Magistrate rejected the contention that cl 892.214 was invalid, and also rejected the contention that the Tribunal reasoning showed that it had proceeded upon a misconstruction of cl 892.214, his Honour dismissed the application with costs. 27 The Notice of Appeal to the Federal Court from the judgment of Smith FM was filed on 16 December 2008, and contained two grounds: 1. The learned Federal Magistrate erred in finding that Clause 892.214 in Schedule 2 of the Migration Regulations 1994 was not an invalid exercise of the legislative power delegated pursuant to s 31(2) of the Migration Act 1958. 2. The learned Federal Magistrate erred in finding that the second respondent did not misconstrue clause 892.214 in Schedule 2 of the Migration Regulations 1994. 28 The orders sought by that Notice of Appeal were: 1. The appeal be allowed 2. The decision of the second respondent dated 18 June 2008 be set aside. 3. The matter be remitted to the second respondent to be determined according to law. 4. The first respondent pay the appellants' costs. 29 Those grounds seek to re-argue the grounds which were unsuccessful before the Federal Magistrate. The arguments addressed to this Court, however, are not precisely the same as the arguments which were put to the Federal Magistrates Court. 30 Mr N Poynder, counsel for the appellants, addressed the second ground of appeal at the outset of his submissions, contending that the Tribunal did not address the test in criterion 849.214. He submitted the Tribunal failed to ask whether the appellants had a history of involvement in business activities that are of a nature that is not generally acceptable in Australia, but rather simply considered whether the business activities of the male appellant were unlawful, and having so concluded, found that was sufficient to find that he did not meet that criterion. 31 Counsel for the appellants said: … that the tribunal limited itself to the first of the questions it posited to itself, that is: it only looked at whether or not Mr Lee's activities were lawful and if they were unlawful, then the tribunal found that he didn't meet that criterion, and it didn't go beyond that, the question of unlawfulness. 32 The Tribunal had before it parts of the policy document provided by the Department to decision-makers, and, in particular, the section that discussed "the applicants' business history". That part of the policy document provided: 50.1 As a Schedule 2 criterion All Business Skills visas have as a Schedule 2 criterion a requirement that the applicant and their spouse 'not have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia'. The policy intention of this criterion is to guard against the entry of people who may otherwise satisfy Business Skills visa criteria, but whose business is in an industry, or whose business practices are of a nature that would generally be unacceptable to the Australian community, were the business to operate in Australia. If the business activities and practices of the applicant and their spouse are lawful throughout Australia then this requirement is taken to have been met. If officers have doubts as to whether a business would be acceptable in Australia, they should contact the relevant policy area in national office. 50.2 Assessing the criterion This criterion should generally not be considered satisfied if the applicant (and/or their spouse) has been involved in business activities that are: · outside the generally accepted social or cultural norms of most people in Australia · likely to be offensive to large segments of the Australian community or · otherwise likely to give rise to controversy were the applicant to enter Australia as the holder of a Business Skills Class of visa. Some examples of business activities that might not be considered acceptable include: · contravention of government laws (eg quarantine, tax evasion) · serious disregard of industry, licensing and regulations · fraudulent trade practices · Foreign Investment Review Board violations or · not providing 'fair pay' for employment. 33 If the Tribunal in fact equated unlawfulness of the husband appellant's business activities with non-satisfaction of cl 892.214, as the appellants contend it did, it would have misapplied cl 892.214. It may well be that some conduct which is unlawful is not of a nature that is not generally acceptable in Australia. 34 Being engaged in SP bookmaking, either as a bookmaker or as a better, even though unlawful, might not be an activity that is "not generally acceptable in Australia". Similarly, jaywalking is an activity that is unlawful, but might not be regarded as "not generally acceptable in Australia". Advertising by way of business signage which does not comply with the by-laws might be unlawful, but that activity might not be activity that is "not generally acceptable in Australia". 35 The short answer to the second ground of appeal, however, is that the Tribunal did not, as the appellants contended before the Federal Magistrate and repeated before this Court, hold that cl 892.214 was not complied with for the reason simply that the business activities involving tax evasion were unlawful. 36 It is true that the Tribunal in its reasons set out in [9] above say the crucial point is that he has admitted "to breaking the law", and he therefore has "a history of involvement in business activities" which are likely to be offensive to a large section of the Australian population and which are unlawful. 37 The reasons continue: The Tribunal finds that this behaviour may be prevalent in Australia … but it is, nevertheless not 'generally acceptable' in Australia because it is, in fact, a breach of the law of the land and avoidable. The Tribunal finds, therefore, that the first named visa applicant does not meet the criterion in clause 892.214. (Emphasis added) 38 When the reasons of the Tribunal are read as a whole, the reference to "this behaviour" and "this conduct" is a reference to "an elaborated, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful". 39 The reasons of the Tribunal contain the conclusion that the male appellant "had a history of involvement in business activities, meaning an elaborate, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful". That conclusion indicates that the Tribunal characterised the activities as, first, being "likely to be offensive to a large section of the Australian population", and secondly, as being "unlawful". 40 Federal Magistrate Smith, in [36] of his Honour's reasons set out in [23] above said: In its terms, this conclusion did more than reach a conclusion that the activities were unlawful. It shows that the Tribunal did consider whether the activities were "generally acceptable in Australia" from a broader perspective than legality alone. 41 I agree. 42 In my judgment, the Federal Magistrate was correct to conclude that the Tribunal did not misapply cl 892.214. The second ground in the Notice of Appeal therefore fails. 43 The submissions for the appellants in relation to the first ground of appeal, asserting the invalidity of cl 892.214, focus on the phrase "not generally acceptable in Australia". 44 The submission on the invalidity point by the appellants is that the words, and, in particular the words, "not generally acceptable in Australia" are incapable of any meaningful determination, with the result that cl 892.214 is not a valid exercise of the legislative power delegated under s 31(3) of the Act. 45 There are two aspects of the contention that the clause is invalid because its content is unascertainable. The first concerns the words "in Australia". The appellants point out that the criterion is not expressed as "not generally acceptable by Australians" or "not generally acceptable to a majority of Australians". The contention is that the identity of who is to judge the unacceptability is unascertainable. Counsel rhetorically asked, "does that include only Australian citizens; might it include temporary residents; might it include visitors to Australia; could it be limited to the elected representatives of Australia that is parliament?" 46 The contention for the appellants on this part of its submission as to unascertainability is that the words "in Australia" are incapable of determination. 47 Mr Lloyd of counsel, appearing for the Minister, provided the Court with the Macquarie Dictionary definition of "generally". The Macquarie Dictionary says: generally, adv. 1. with respect to the larger part, or for the most part: a claim generally recognised. 2. usually; commonly; ordinarily: he generally comes at noon. … 48 Clause 892.214 is in similar terms to a number of other clauses in the Regulations, including clauses: 132.216; 160.218; 161.216; 162.216; 163.216; 164.215; 165.215; 845.218; 846.217; 890.216 and 891.211. 49 In my judgment, the word "generally" bears the first meaning set out in the Macquarie Dictionary: "with respect to the larger part, or for the most part". 50 The word "accepted" is described in the Macquarie Dictionary as "customary, established, approved". 51 In the context of the criteria set out in cl 892.21, the expression "not generally acceptable in Australia" requires consideration of whether an applicant, or his or her spouse, has a history of involvement in business activities that are of a nature that the larger part, or most, of people in Australia would not or do not approve of. 52 I therefore reject the contention that the words of the clause are "incapable of meaningful determination". 53 Dixon J, as he then was, in King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184 (King Gee) said, at 195: I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. 54 In my judgment, the Federal Magistrate was correct to reject the contention that cl 892.214 was invalid because it did not contain adequate information as to the duties of those who are to obey it: cf City of Brunswick v Stuart (1941) 65 CLR 88 and Evans v New South Wales (2008) 168 FCR 576, at 579 and 597. 55 Dixon J did acknowledge in King Gee that a regulation could be invalid if it provided a standard according to a fact that was not ascertainable. The High Court held in King Gee that the regulation, properly construed, was incapable of determining a price for outwear clothing which was what the empowering Act required the regulation to do. As a consequence, it was held that the regulation was invalid. 56 In Evans, the regulation subject to challenge was cl 7 of the World Youth Day Regulation 2008 (NSW) which relevantly provided: (1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that: … (b) causes annoyance or inconvenience to participants in a World Youth Day event, … 57 The Full Court said, at [81]-[82]: 81 The principal issue in relation to cl 7(1) is its application under cl 7(1)(b) to conduct that "causes annoyance … to participants in a World Youth Day event". The term "annoy" as defined in the Shorter Oxford English Dictionary relevantly means: To affect so as to ruffle, trouble, vex. Annoyance has a corresponding meaning. The Macquarie Dictionary defines "annoy" as: To disturb in a way that is displeasing, troubling or slightly irritating. 82 Conduct which may attract a direction under cl 7(1)(b) is conduct which "causes annoyance … to participants in a World Youth Day event". That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors' points and are not troubled by them. … There is no objective criterion to assist the judgment of "an authorised person" in deciding whether to issue a direction under cl 7. There may be circumstances in which it would be difficult if not impossible for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested. 58 The Full Court continued, at [83]: In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to "annoyance" may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. 59 The Full Court in Evans concluded that "annoyance" was something that turned on individual impression and that empowering a person to tell people to stop annoying other people was not supported by the statutory power conferred by s 58 of the relevant Act. 60 On the other hand, the Full Court upheld the validity of cl 7(1)(b) of the regulations authorising a direction to cease engaging in conduct that causes inconvenience to participants in a World Youth Day event, because it was posited on an ascertainable fact. 61 At [84], the Full Court said: The term "inconvenience" has a more objective content. The relevant definition in the Shorter Oxford English Dictionary is: Harm, injury, mischief; misfortune, trouble. It is used in a transitive sense by reference to the effect of the relevant conduct on participants. The Macquarie Dictionary defines it as: Arranged or happening in such a way as to be awkward, inopportune, disadvantageous or troublesome. While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term "inconvenience" may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. 62 Consistent with the observation of the Full Court set out above, the phrase "generally acceptable in Australia", in my opinion, requires a judgment or assessment by the decision maker of whether business activities possess a particular character. That character is, in my judgment, one which is capable of determination, as a matter of assessment or judgment. 63 Counsel for the appellants referred also to the judgment of Refshauge J in R v Goreng-Goreng (2008) 220 FLR 21. That case was concerned with the validity of a regulation, reg 2.1(3) of the Public Service Regulations 1999 (Cth). Regulation 2.1(3) prohibited the disclosure of information which Australian public service employees had obtained or generated in connection with their employment, where it was: … reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs. 64 His Honour held that the description of what information should not be permitted to be disclosed, by reference to the "effective working of government", did not invalidate the regulation on the ground of uncertainty. 65 Refshauge J referred to Merrell v Roberts (1909) 26 WN (NSW) 73, which held that a regulation which prohibited driving "at such rate of speed … or in a manner as to … frighten or injure any … animal" was held not to be uncertain. Refshauge J said: The court held that it was not difficult for a court to consider whether under the circumstances of the case the vehicle was being driven at such a speed. 66 Refshauge J also referred to Ireland v Wilson (1936) All ER 358, where a by-law which provided "Every driver of a motor hackney carriage shall when working or plying for hire … conduct himself in a proper civil and decorous manner at all times" was held to be valid. 67 His Honour noted, at [53]: … there are many examples of criminal laws which depend upon judgment: dangerous driving and manslaughter by negligent conduct come easily to mind. 68 Refshauge J concluded that reg 2.1 was not invalid, as being uncertain. 69 Counsel for the appellants referred also to the judgment of the Full Court of the Federal Court in Vanstone v Clark (2005) 147 FCR 299. That case concerned quite different statutory provisions, and the attack on the validity of those provisions was quite different from the attack mounted in the present case. It provides no relevant assistance to the disposition of the present appeal. 70 The Federal Magistrate, in the context of whether the business activities of the husband appellant were "generally acceptable in Australia", held that that test had a meaning and was capable of application in a reasonable and proportionate way. His Honour held that the criterion was not invalid, and the male appellant in the circumstances of this case was in breach of that criterion. 71 In my opinion, the disqualifying criterion in cl 892.214, that neither an applicant nor his or her spouse has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia, requires a consideration of whether there is a history of involvement in business activities that are of a nature that the larger part, or most, of people in Australia would not or do not approve of. The activities of the appellant in the present case were identified by the Tribunal as bypassing payroll tax, superannuation, and workers' compensation payments through cash payments to his casual employees, with the consequence that the employees, for their part, have evaded paying income tax. The Tribunal concluded those activities are activities "which are likely to be offensive to a large section of the Australian population and which are unlawful". Those findings support the conclusion that "those business activities are not generally acceptable in Australia". The Federal Magistrate concluded that "the first named visa applicant does not meet the criterion in cl 892.214". No error taints this conclusion. 72 Counsel for the respondent submitted that if the Court were of the view that the criterion was invalid, there would be a question of severability in respect of the various criteria in cl 849.21. Since, in my view, that criterion is not invalid, the question of severability does not arise. 73 For the above reasons, the appeal should be dismissed. The appellants should pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 28 August 2009 Counsel for the Appellants: Mr N Poynder Solicitor for the Appellants: Peter Bollard & Associates Counsel for the Respondents: Mr S Lloyd SC Solicitor for the Respondents: Clayton Utz Date of Hearing: 19 February 2009 Date of Judgment: 28 August 2009