Yang v Minister for Immigration and Multicultural Affairs [2006] FCA 1159 (31 August 2006)

Last Updated: 4 September 2006

FEDERAL COURT OF AUSTRALIA

Yang v Minister for Immigration and Multicultural Affairs [2006] FCA 1159

YA HSIU YANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 691 OF 2006

JACOBSON J
31 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 691 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR J D CAMPBELL

BETWEEN:	YA HSIU YANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	JACOBSON J
DATE OF ORDER:	31 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The applicant to pay the costs of the proceeding.

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	NSD 691 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR J D CAMPBELL

BETWEEN:	YA HSIU YANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	JACOBSON J
DATE:	31 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction:

1. Ms Ya-Hsiu Yang was the holder of a Business Skills (Migrant) visa. On 5 May 2005 a delegate of the Minister exercised her powers under s 134 of the Migration Act 1958 (Cth) (the Act) to cancel Ms Yang’s visa on the grounds stated in that section.
2. Section 134 of the Act permits the Minister to cancel a business visa if satisfied that the holder has not obtained a substantial ownership interest in an eligible business or is not utilising his or her skills in actively participating at a senior level in the day to day management of a business.
3. Ms Yang sought review by the Administrative Appeals Tribunal of the delegate’s decision. The Tribunal found that Ms Yang had not obtained a substantial interest in a business in Australia and she had not utilised her skills in actively participating in management.
4. Section 134(2) of the Act provides that the Minister must not cancel a business visa if satisfied that the holder has made a genuine effort to obtain an ownership interest or to actively participate in management.
5. The Tribunal found that Ms Yang relied upon others to comply with the requirements of the Act and that she was unwilling to involve herself in the requisite activities. It found that she had not made genuine efforts to comply with the requirements of the Act. Indeed, it described her efforts as “superficial or token”.
6. Notwithstanding these factual findings, Ms Yang appeals against the decision of the Tribunal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
7. The notice of appeal sets out three questions of law which are said to arise. These were reduced to one question by counsel for Ms Yang. The question of law, as framed by counsel, is whether reliance by a business visa holder on professional advice is a matter which the Tribunal was required to take into account in determining whether the visa holder had made a “genuine effort” within the meaning of ss 134(2) and (3) of the Act.
8. It follows from the formulation of the question that the only attack which is made upon the decision of the Tribunal relates to its finding about the absence of genuine efforts.

The Legislation

9. Section 134 of the Act provides:

Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:

has not obtained a substantial ownership interest in an eligible business in Australia; or is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or does not intend to continue to: hold a substantial ownership interest in; and utilise his or her skills in actively participating at a senior level in the day-to-day management of; eligible business in Australia. (2)  The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder: has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and intends to continue to make such genuine efforts.”

10. Section 134(3) sets out a non-exhaustive list of the matters which the Minister may take into account in determining whether the visa holder has made a genuine effort in accordance with s 134(2).

The Decision of the Tribunal

11. The Tribunal framed the relevant issues in [7] of its reasons, in language which reflected the provisions of s 134(1) and s 134(2) of the Act.
12. Ms Yang entered Australia in February 2002, shortly after the grant of her business skills (migrant) visa. Her evidence in support of her review by the Tribunal may be divided into four separate groups of activities.
13. These activities went to the essential questions before the Tribunal. They were, whether Ms Yang had obtained a substantial ownership interest, whether she had actively participated in management and whether she had made genuine efforts to do either of these things.
14. The first activity upon which Ms Yang relied was a metals export program undertaken shortly after her arrival in Australia. The Tribunal found at [15] that these activities were “at best preliminary enquiries” which might have led to the creation of a business.
15. Second, Ms Yang attempted to establish a restaurant in Chatswood in partnership with another person. The Tribunal found at [16] that the restaurant did not open. Ms Yang was to be the manager of the business but she was overseas for a number of weeks after the proposed opening date. The Tribunal found that this was inconsistent with her claimed intention to act as the manager.
16. Third, Ms Yang relied upon a number of investment opportunities which she had explored with two other persons. The Tribunal found at [17] that she elected not to invest in those ventures.
17. Fourth, in June 2003, Ms Yang arranged for a company, Trinity Australasia Pty Limited, to be established. The company was incorporated by Swire AES International Pty Limited under an agreement entered into between Ms Yang and Swire. Mr Junus, the managing partner of the Australian Branch of a firm of lawyers or migration agents known as “Lishi Law Firm” arranged for Ms Yang to enter into that agreement; see at [18]. Swire was connected with Mr Junus. The parties informed me that Mr Junus was not a legal practitioner; he was, however, a registered migration agent.
18. The Tribunal made a number of critical findings at [18](b), [18](c) and [18](d) about Ms Yang’s involvement in Trinity.
19. The Tribunal found at [18](b) that the terms of the agreement between Ms Yang and Swire indicated that Swire was required to establish Trinity and to manage it. Moreover, the Tribunal observed that Ms Yang stated that her only involvement with Trinity’s operations was to attend upon Mr Junus and sign cheques for the purchase of goods. Indeed, the Tribunal found that she exercised this responsibility only upon two or three occasions during a period of nearly two years.
20. The Tribunal went on to find at [18](c) and [18](d) that Ms Yang had no involvement with any operation of Trinity and that it was not her intention to be involved in the day to day management of that company at a senior level, or at all.
21. The Tribunal also found that Trinity had never carried on a business within the meaning of the test stated by the High Court in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8-9 ; see the reasons of the Tribunal at [14] and [23].
22. There was some evidence that Trinity had stepped up its activities in the period after the Minister gave notice of her intention to cancel Ms Yang’s visa in January 2005. However, this evidence consisted of only three export transactions between friends of Ms Yang in Sydney and customers of Trinity in Taiwan. The customers were located by Ms Yang’s husband; see at [27].
23. The Tribunal went on to find that Ms Yang had not made a genuine effort to establish an interest or involve herself in the management of an eligible business and that she had left it to others to do what was required and that no qualifying business had been established.
24. The substance of the Tribunal’s reasons may be found in the following passages:-

It is noted that Ms Yang essentially abrogated all involvement in Trinity’s operational pursuits during this period, apart from maintaining expenditure control, a control which she exercised on only a few occasions. It can be said that Ms Yang had a belief that arose from assurances given by Mr Junus, in whom she had trust. That such beliefs slowly dissolved is a matter of record and while related to the performance of Swire and Mr Junus not meeting and doing what they agree to do, it is evident that Ms Yang did little, if anything, until the threat of visa cancellation was on the table. ...

In summary, it is evident that Ms Yang relies upon others to do what has to be done, with Ms Yang seemingly unwilling to involve herself in the activities of the business venture and certainly seemingly unable or unwilling to monitor and/or audit progress and activities of the corporate vehicle she has requested to be created. In such circumstances I find that Ms Yang has not made a genuine effort to obtain a substantial interest in an eligible business, because her conduct in relation to the corporate vehicle she requested be established and of which she was a director can only be described as superficial or token. In essence, Ms Yang organised for herself to be removed from the daily operations of Trinity and remained removed, without ensuring mechanisms whereby she would be able to monitor or even assess progress of Trinity’s business operations. Further evidence of her superficial or tokenish conduct can be inferred from her failure to be involved when calls for her to sign cheques occurred only on two or three occasions over a 21 month period, there being no other cheque signatory for the Trinity account. In conclusion, as a result of the analysis detailed, I find that Ms Yang did not make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. Similarly, I conclude Ms Yang has not made a genuine effort to utilise her skills in actively participating at a senior level in the day-to-day management of an eligible business. In so finding, I acknowledge Ms Yang’s own admissions in this regard as well as the documentation and analysis of that documentation that clearly defines Ms Yang’s intentions not to be involved in such activities. While I note Ms Yang’s activities in the final two months prior to cancellation of the visa, I do not consider that such transactions, albeit in which she may have played a part, are sufficient to demonstrate that at the time of cancellation that Ms Yang had made a genuine effort to participate at a senior level in the day-to-day management of Trinity Australasia.”

Question of Law; reliance on professional advice

25. In my opinion the question which Ms Yang seeks to raise is not a pure question of law. Rather, it seems to me to be a question of fact or, at best, a question of mixed fact and law.
26. In my view this follows from a concession made by Mr Poynder, counsel for Ms Yang, as to the proper construction of s 134(2) of the Act. He conceded that the genuine efforts referred to in that subsection must be the personal efforts of the visa holder.
27. It is plain that the concession was correctly made. There can be no doubt that the visa is issued personally to the holder. Thus, construing s 134(2) in the light of its context, purpose and the overall policy of this part of the Act, what the subsection looks to in a decision to cancel the visa, or to preclude cancellation, is the effort made by the visa holder personally; see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
28. The thrust of Mr Poynder’s argument was that, accepting that Ms Yang’s efforts were to be made personally, her retainer of Mr Junus formed part of those efforts. He submitted that the Tribunal had failed to take this into account. But what this demonstrates is that the question which Ms Yang seeks to raise is one of fact, rather than a pure question of law.
29. It follows that, subject to consideration of an alternative argument put by Mr Poynder, the appeal must fail; see Birdseye v Australian Securities & Investments Commission (2004) 76 ALD 321 at [17] – [18]; Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 202 ALR 450 at [46].

Alternative Argument: failure to address claim

30. Mr Poynder’s alternative argument was that the Tribunal failed to respond to a substantive, clearly articulated argument based upon established facts; see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24].
31. This argument was, as I have said, that Ms Yang made genuine efforts to comply because she relied upon her migration agent. An essential element of this argument was that it was reasonable for Ms Yang to rely upon her agent.
32. Ms Yang accepted that her agent had let her down and it was for this reason that, at least in part, she failed to comply with s 134(1) of the Act. No complaint was made about the Tribunal’s finding that Ms Yang had not obtained a substantial interest and that she had not actively participated in management.
33. However, it was submitted on Ms Yang’s behalf that she had relied upon a professional expert who held himself out as being able to ensure Ms Yang complied with the requirements of the Act. Mr Poynder submitted that the Tribunal had misconceived Ms Yang’s case in this regard and had thereby failed to address her claim.
34. In Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28, Gyles J expressed the view that a claim to invoke the supervisory jurisdiction of the Court is not a question of law under s 44 of the AAT Act. However, having regard to the way in which the case was argued before me, I propose to deal with Ms Yang’s argument.
35. Ms Yang’s contention that the Tribunal fell into jurisdictional error cannot succeed unless she can establish that the Tribunal failed to address a claim or an integer of her claim. This is the relevant head of review stated in Dranichnikov. To put the claim otherwise would be to invite the Court to embark upon impermissible fact finding; see Htun v Minister for Immigration and Multicultural Affairs (2003) 194 ALR 244 at [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2005) 219 ALR 27 at [57], [63].
36. It seems to me that Ms Yang’s claim that the Tribunal failed to have regard to her reliance upon her migration agent is really a complaint that it failed to address an aspect of her evidence. Thus, it is not reviewable for jurisdictional error because it is in truth an attempt to seek merits review.
37. In any event, it is clear that the Tribunal did address the claim that Ms Yang relied upon Mr Junus as part of her evidence that she had made genuine efforts to comply with the requirements of the Act. This appears in a number of places in the Tribunal’s reasons for its decision.
38. First, the Tribunal found at [33] that Ms Yang had abrogated her involvement in Trinity’s management to Mr Junus. It recognised that she believed assurances apparently given to her by Mr Junus that reliance upon him would enable her to comply with the Act. But it went on to find that these beliefs “slowly dissolved” and yet she did little, if anything, herself until the delegate gave notice of intention to cancel her visa.
39. It is not necessary for me to point to evidence to support this finding, but for completeness I refer to Ms Yang’s statement of 14 December 2005. There, she said in stark terms that she “became dismayed” at Mr Junus’ failure to assist her and that this occurred more than twelve months before the cancellation of her visa; see at [34] – [35] of the statement.
40. Second, the Tribunal referred in a number of places to its finding that Ms Yang relied upon others to undertake the activities necessary to obtain an interest in a business and to participate in management; see at [35], [36], [37] and [38].
41. Third, the effect of the critical finding made by the Tribunal at [38] is that it was not reasonable for Ms Yang to rely upon Mr Junus. This finding of itself is sufficient to dispose of the present application. The question of reliance upon Mr Junus is subsumed in the more general finding of unreasonableness; see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 75 ALD 630; [2003] FCAFC 184 at [47].
42. Counsel for the Minister also sought to rely upon concessions or admissions said to have been made by Ms Yang and to which reference was made in the Tribunal’s reasons. Counsel referred to [10(a)], [10(b)], [26] and [39] of the Tribunal’s reasons.
43. Despite the Tribunal’s use of the word “concession” in [26] and “admissions” in [39], it is not clear to me from reading the Tribunal’s reasons that any relevant concession or admission was made on the issue of genuine efforts.
44. It seems to me that the “concession” in [26] was as to failure to comply with s 134(1). I am not sure whether the “admissions” in [39] are of a failure to make genuine efforts.
45. It is true that at [10(a)] the Tribunal records that Ms Yang stated she was aware she had to make a genuine effort to actively participate in management. But that does not constitute an admission that she failed to do so.
46. Nor does her acknowledgment recorded at [10(b)], that she should have actively involved herself, amount to a clear admission. As I read that paragraph, it seems to be an acknowledgment, made with the benefit of hindsight, as to what she should have done. I do not read it as an admission that she failed to make genuine efforts.
47. Nevertheless, for the reasons I have given above, it is plain that the Tribunal addressed Ms Yang’s claim. The argument that it did not do so must fail.

Orders

48. The orders I will make are that the appeal be dismissed with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 31 August 2006

Counsel for the Applicant:	N Poynder
Solicitor for the Applicant:	Diamond Conway Lawyers
Counsel for the Respondent:	T Wong
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 August 2006
Date of Judgment:	31 August 2006