Moller v Minister for Immigration and Citizenship [2007] FCA 839 (29 June 2007)

Last Updated: 2 July 2007

FEDERAL COURT OF AUSTRALIA

Moller v Minister for Immigration and Citizenship [2007] FCA 839

JAN CHRISTIAN MOLLER v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 440 OF 2007

COWDROY J
29 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 440 OF 2007

BETWEEN:	JAN CHRISTIAN MOLLER Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	29 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent in the sum of $ 4000.

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 440 OF 2007

BETWEEN:	JAN CHRISTIAN MOLLER Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	29 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Smith delivered on 28 February 2007 dismissing an application for judicial review of two decisions of the Migration Review Tribunal (‘the Tribunal’) of 5 September and 21 November 2005. The Tribunal had affirmed the decisions of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse the appellant’s applications.

FACTS

2 On 26 March 2004 the appellant lodged an application on behalf of the business which he conducted, namely Electro Innovations, for approval as a business sponsor (‘the sponsorship application’) with the Department of Immigration and Multicultural Affairs (‘the Department’). ‘Electro Innovations’ is a business name registered under the Business Names Act 2002 (NSW), and as such it has no separate legal personality to its proprietor. The sole proprietor is the appellant.

3 The Minister refused the sponsorship application on 8 May 2004. On 2 June 2004 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision of the Minister on 5 September 2005. By Application filed on 8 October 2005 the appellant sought judicial review of the Tribunal’s decision in relation to the sponsorship application in the Federal Magistrates Court.

4 The appellant had also applied to the Department for a Class UC, subclass 457 Temporary Business (long stay) visa for himself and members of his family (‘the visa application’). The visa application was refused by the Minister on 8 May 2004. The appellant applied to the Tribunal for review of that decision and on 21 November 2005 the Tribunal affirmed the Minister’s decision on the ground that the appellant, as the primary visa applicant, did not have an approved business sponsor. The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision in respect of the visa application.

5 The application to the Federal Magistrates Court for review of both the Tribunal’s decisions were heard concurrently by Smith FM. At that hearing, counsel for the appellant conceded that if Smith FM dismissed the challenge to the Tribunal’s decision in respect of the sponsorship application, the challenge to the Tribunal’s decision in respect of the visa application must also be dismissed since it was predicated upon the approval of ‘Electro Innovations’ as the business sponsor.

THE TRIBUNAL’S DECISIONS

The sponsorship application

6 The Tribunal was required to determine whether the appellant met the criteria set out in Regulation 1.20D of the Migration Regulations 1994 (Cth) (‘the Regulations’) which states the requirements to enable an entity to be approved as a business sponsor.

7 The Tribunal observed that it was bound by the Act and the Regulations, and that it must have regard to and apply relevant Department policy such as that contained within the Procedures Advice Manual 3 (‘PAM 3’), unless there were cogent reasons for not doing so. PAM 3 contained provisions which could have been construed as suggesting that an applicant who was a sole trader might sponsor him or herself for the purpose of obtaining a visa. It defined self sponsorship as follows:

‘[8.3] Self Sponsorship

Sole proprietorship/trader owners and other business persons who:

• are owner, business sponsor and nominated employee and
• seek further stay via subclass 457 visa

are known as self-sponsors.

Sponsorship applications from persons who appear to satisfy relevant streams of 457 visa criteria under the business sponsorship arrangements may be considered against relevant criteria.’

8 The Tribunal noted at [17] that the associated Subclass 457 visa:

‘...clearly draws a distinction between those who are intending to work in Australia as employees and those who intend to operate a business as a principal. The latter are dealt with as Independent Executives pursuant to subclause 457.223(7)...’

9 The Tribunal found that the business ‘Electro Innovations’ was not a company but merely the name of a business. Consequently, the Tribunal held that the appellant did not satisfy the criteria provided by Regulation 1.20D since such Regulation did not allow the appellant to directly sponsor himself in a business conducted by him as an unincorporated sole trader. Accordingly the Tribunal affirmed the decision of the Minister.

The visa application

10 The Tribunal reviewed the decision of the Minister to refuse the appellant’s application for the Subclass 457 visa on the basis of sponsorship by a business operating in Australia. The appellant proposed to sponsor himself through the business he had established under the name ‘Electro Innovations’, and be his own direct employer. The Tribunal found that the entitlement to such visa was dependent upon the approval of the business as a business sponsor.

11 The Tribunal referred to its decision in respect of the appellant’ssponsorship application and concluded that the appellant did not have an approved business sponsor as required by the relevant subclauses of clause 457.223. Accordingly it affirmed the decision under review finding that the appellant was not entitled to a Temporary Business Entry (Class UC) visa.

APPLICATION TO FEDERAL MAGISTRATE

12 By Amended Application filed 27 February 2006 the appellant sought judicial review of the decision of the Tribunal in relation to the sponsorship application upon three grounds, namely, the Tribunal misconstrued the law relevant to the approval of business sponsorship; the Tribunal asked itself the wrong questions and took into account irrelevant considerations in deciding the sponsorship application; and the Tribunal erroneously failed to consider the relevant policy guidelines.

THE DECISION OF THE FEDERAL MAGISTRATE

13 Before Smith FM the appellant submitted that the Regulations were capable of a construction which allowed the appellant to sponsor himself for employment.

14 Smith FM noted at [10]:

‘Various alternative categories of occupational qualification within subclass 457 are explained in the criteria found in other subclauses of item 457.223. These covered visa applicants proposing to be employed in some other specially defined circumstances, and also in subclause (7) and (7A) an "independent executive" class of applicants proposing to develop or continue their own business activities for the benefit of Australia (cf. my discussion of this category in Wyse & Anor v Minister for Immigration & Anor [2006] FMCA 1362). For reasons which are unclear to me, the present applicant did not attempt to obtain qualification for a visa under the independent executive category, but sought only to qualify as a person sponsored by an approved employer under subclause (4).’

15 Smith FM found that PAM 3 did not have legislative effect. His Honour observed that the relevant PAM 3 extract did not refer to the Regulations and did not contribute to the interpretation of the Regulations. Nor did his Honour consider that the definitions of ‘person’ contained in Regulation 1.20B and Schedule 2 item 457.111(1) of the Regulations, namely as including an ‘unincorporated body of persons’ lent themselves to a construction that a sole trader could be regarded as ‘a body of persons’.

16 The appellant also raised the possibility of the appellant acting in two capacities as considered by Kennedy J in Gulland v Federal Commissioner of Taxation (1983) 83 ATC 4352 at 4,365. His Honour found that the appellant’s circumstances could be distinguished from those in Gulland 83 ATC 4352, in which it was held that a person contracting ‘in two capacities’ referred to representational or derivative legal capacities which a person may exercise separately from their personal capacity, such as trustee, executor, administrator or agent. Smith FM found that the effect of registering a business name was not to create a separate legal entity but merely to allow ‘a trader to hold himself out in business in his personal capacity under a name other than his personal name.’

17 Smith FM found that the Tribunal had correctly interpreted the Regulations and that the Tribunal’s decision did not reveal any jurisdictional error. Accordingly his Honour dismissed the appellant’s application.

THE APPEAL TO THIS COURT

18 The appellant’s Notice of Appeal to this Court filed on 21 March 2007 contains one ground of appeal, namely:

‘Federal Magistrate failed to properly consider regulation 1.20D, related to arguments presented by my lawyers in the first place.’

The appellant sought the following relief:

‘I would like my sponsorship of myself through Electro Innovations (sole trading business name) to be approved.’

19 At the hearing the appellant appeared in person and requested that the hearing be adjourned for several weeks on the basis that his solicitor, Mr Fisher, was overseas. Such request was opposed by the Minister who relied upon an affidavit which showed that Mr Fisher was not the solicitor on the record, was not recorded on the roll of solicitors in New South Wales, and was not a registered migration agent. The Minister also submitted that no error is apparent in the decision of Smith FM and that there would be no utility in adjourning the hearing of the appeal.

20 The appellant was provided with an opportunity to obtain legal advice, but the appellant informed the Court that if it was not minded to adjourn the hearing to a date when Mr Fisher would be available to attend Court, he wished the hearing to proceed forthwith. Since the Court did not consider that such an adjournment was justified, it proceeded with the appeal.

FINDINGS

21 The function of the Court in this appeal is to undertake judicial review of the decision of the Federal Magistrate, and not to undertake a merits review of the Tribunal’s decision. The appellant’s Notice of Appeal does not particularise the alleged errors in the decision of Smith FM. However, since the appellant is not represented, the Court will consider the issues raised by the appellant.

22 Smith FM observed that the legislation relevant to the appellant’s visa application at the time the application was made was Schedule 2 item 457.223(4) of the Regulations which relevantly provides:

‘ (4) The applicant meets the requirements of this subclause if:

(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and

(b) the employer is:

(i) either:

(A) a pre-qualified business sponsor; or

(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and

(ii) the employer mentioned in subparagraph 1223A (3) (d) (i); and

...’

23 Smith FM at [13] noted that the appellant sought to prove that PAM 3:

‘...might be capable of being read as suggesting that there could be "self sponsorship", not only where a visa applicant had a proprietary interest or share in a proposed legally separate employing entity, but also where the visa applicant was a "sole trader...required to register [his] business name with the relevant State/Territory Government authority."’

Smith FM continued at [14]:

‘I have considered the extract from PAM, but have not found it to be of assistance when construing the regulations. Its status is merely a set of administrative guidelines, and its contents cannot be elevated into legally relevant considerations or binding representations (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [27]- [29] and cases there cited)... The present PAM extract made no attempt to use the language of, or even refer to, the relevant regulations, and gave no explanation as to how its author thought that its suggestions could be reconciled with the regulations. I do not consider that it contributes to the present question of interpretation.’

24 In relation to the appellant’s argument that Gulland 83 ATC 4352 is authority for the proposition that the appellant, for present purposes, could be both an employer and employee, his Honour said at [22]:

‘In my opinion, the scheme and apparent intention of all the provisions which I have identified above, is that the employer and visa applicant must have separate legal personalities, so as to be legally capable of incurring the separate obligations, benefits and responsibilities of a sponsoring employer on one side and of an employee visa holder on the other. Since Mr Moller was incapable of entering into a legally meaningful contractual relationship with himself as to his own "employment", I consider that he was incapable of satisfying the Minister in terms of the various requirements of reg.1.20D(2), including that "the applicant for approval proposes to be the direct employer in Australia of the visa applicant as the holder of the visa."’

25 His Honour also rejected a submission that a ‘sponsor’ could be the same person as the applicant making the application for sponsorship. Having considered the decision of Phipps FM in CHA Agencies v Minister for Immigration [2004] FMCA 279 which considered the interpretation of the regulatory requirements, Smith FM said:

‘The indicators of this identified by Phipps FM at [21] of his judgment would tend, at least, to support the construction that the regulations intend that true legal relations must be capable of being undertaken between employer and employee, so as to exclude "sole-traders" proposing to employ themselves in an unincorporated business.’

26 This Court can find no error in the decision of Smith FM. His Honour considered each of the submissions of the appellant and correctly found that the relevant provisions for sponsoring employees did not extend to a person employing himself or herself for such purposes. His Honour’s findings in relation to Gulland 83 ATC 4352 are also correct.

27 It follows that the appellant’s application for business sponsorship cannot succeed. Since the application for the Class UC subclass 457 Temporary Business (long stay) visa is dependent upon a finding that the appellant had the requisite business sponsorship, this application must also fail.

28 For the reasons outlined above the Court dismisses the appeal. Despite such findings, the appellant has a statutory entitlement pursuant to s 351 of the Act to request the Minister to consider his claims. If the appellant was misled by the contents of PAM 3 which is clearly inconsistent with Regulation 1.20D, he may draw this circumstance to the attention of the Minister.

29 The Minister has sought an order for costs in the sum of $4000. As this is within an acceptable range for costs the Court will make the order sought.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:
Dated: 29 June 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	S. Lloyd
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	17 May 2007
Date of Judgment:	29 June 2007