Tung-Liang Liang v Minister for Immigration & Citizenship [2009] FCA 189 (3 March 2009)

Last Updated: 3 March 2009

FEDERAL COURT OF AUSTRALIA

Tung-Liang Liang v Minister for Immigration & Citizenship [2009] FCA 189

MIGRATION — judicial review of decision of Migration Review Tribunal refusing grant of business skills visa for breach of business operation limitation condition prescribed by regulation attaching to visa held — business skills visa — finding that applicant had not complied substantially with visa condition — visa refused because appellant conducted more than two “main businesses” — meaning of “main business” — meaning of “business” — visa also refused because appellant did not continue to meet visa criteria between application and final decision — appellant did not have an ownership interest in a main business at the time of the Tribunal’s decision — meaning of “continues” — appeal dismissed

WORDS AND PHRASES — “main business” — “business” — “continues”

Federal Court of Australia Act 1976 (Cth) s 25
Migration Act 1958 (Cth) ss 31(3), 41, 65, 134(10), 504

Migration Regulations 1994

Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1 cited
Buck v Bavone [1976] HCA 24; (1975) 135 CLR 110 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 considered
NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 considered
Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481; (2003) 129 FCR 448 considered
Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 applied
Repatriation Commission v Warren (2008) 167 FCR 511 applied
Saffron v Societe Miniere Cafrika [1958] HCA 50; (1958) 100 CLR 231 distinguished
SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 considered
Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 applied

TUNG-LIANG LIANG v MINISTER FOR IMMIGRATION & CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
QUD242 of 2008

LOGAN J
3 MARCH 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD242 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TUNG-LIANG LIANG Appellant

AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed.
   

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
QUEENSLAND DISTRICT REGISTRY	QUD242 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TUNG-LIANG LIANG Appellant

AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE:	3 MARCH 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The Appellant, Tung-Liang Liang, applied under the Migration Act 1958 (Cth) (the Act) for what is known as a Business Skills (Permanent) Visa as long ago as November 2003. Also covered by that application were his wife and their son.
2. The application was initially refused by a delegate of the Minister for Immigration and Citizenship (the Minister), the active Respondent in the present appeal. In turn, that refusal decision was affirmed by the Migration Review Tribunal (the Tribunal). The Tribunal’s decision was quashed on judicial review by the Federal Magistrates Court. The matter was then remitted to the Tribunal for hearing afresh.
3. On the second hearing of the application for the review by the Tribunal of the refusal decision, the Tribunal again decided to affirm the refusal of the visa application. In turn, the Appellant again sought the judicial review of that decision by the Federal Magistrates Court. On this occasion, that court decided to dismiss the judicial review application. Following the grant of extension of time within which to appeal, it is from that decision that the Appellant appeals to this Court.
4. There are two grounds of appeal:
   1. That the learned Federal Magistrate erred in finding that the decision of the Second Respondent, made on 11 July 2009, affirming the decision of the First Respondent delegate to refuse to grant the appellant a Business Skills (Permanent) Visa was not affected by jurisdictional error. The jurisdictional errors of the Second Respondent were that it:

(a) Failed to properly understand or apply Regulation 1.11 of the Migration Regulation in that it found the appellant had nominated a third “Main Business” in contravention of Regulation 1.11(2). It did so because the Tribunal treated the Appellant’s first two businesses discretely. It was then submitted they were in fact the same business but trading under different names; and/or
(b) Failed properly to understand or apply criterion 845.221 in Schedule 2 to the Regulations by wrongly holding that the Appellant did not satisfy criteria 845.221 because he did not continue to particularly satisfy criteria 845.213 and 845.216 of Schedule 2 to the Regulations.

5. Before turning to the merits of these grounds, reference should be made to pertinent provisions of the Act and the Migration Regulations 1994 (the Regulations).
6. By s 65 of the Act, if, after considering a valid visa application, the Minister is satisfied, materially, that the criteria for that class of visa as prescribed either by the Act or the Regulations have been satisfied, the Minister is to grant that visa. If not so satisfied, the Minister is obliged by s 65 of the Act to refuse to grant the visa. The Minister is permitted to delegate the performance of this function.
7. Section 41 of the Act permits the making of regulations which provide that visas, or visas of a specified class, are subject to specified conditions. Section 31(3) of the Act permits the making of regulations which prescribe criteria for a visa. Section 504 of the Act empowers the Governor-General to make such regulations.
8. Materially, the effect of reg 2.03 of the Regulations is that, for the purposes of s 31(3) of the Act, one looks to Sch 2 to the Regulations for the prescribed criteria of the grant to a person of a visa of a particular class. Within Sch 2 to the Regulations, those criteria presently pertinent for the grant of a Business Skills (Permanent) Visa are found within sub-class 845. Consideration of this appeal requires that a number of the clauses within sub-class 845 be set out:

845.1 Interpretation

Note 1 AUD , ownership interest and qualifying business are defined in regulation 1.03; and main business is defined in regulation 1.11.

Note 2 As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

Note 3 There are no interpretation provisions specific to this Part.

845.2 Primary criteria

Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

845.21 Criteria to be satisfied at time of application

845.211 The applicant holds a temporary substantive visa other than any of the following visas:

(a) a special purpose visa;
(b) a Border (Temporary) (Class TA) visa;
(c) a Diplomatic (Temporary) (Class TF) visa;
(d) a Domestic Worker (Temporary) (Class TG) visa;
(e) a Transit (Temporary) (Class TX) visa;
(ea) a Maritime Crew (Temporary) (Class ZM) visa;
(eb) Superyacht Crew (Temporary) (Class UW) visa;
(f) a transitional (temporary) visa that the applicant is taken to hold because he or she held, or applied for, a visa referred to in paragraph (a), (b), (c), (d) or (e) before 1 September 1994.

845.212 One or more of the following circumstances has existed for a total of at least 272 days in the period of 12 months ending immediately before the application is made:

(a) the applicant has been in Australia as the holder of a temporary substantive visa other than a visa referred to in clause 845.211;
(b) the applicant has been in Australia as the holder of a Bridging A (Class WA) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2;
(c) the applicant has been in Australia as the holder of a Bridging B (Class WB) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2.

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.

845.214 The assets in Australia of the applicant, or the applicant and his or her spouse together:

(a) have a net value of at least AUD250 000; and
(b) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.

845.215 The assets owned by the applicant, or by the applicant and his or her spouse together, in the main business or main businesses in Australia:

(a) have a net value of at least AUD100 000; and
(b) had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.

845.216 In the 12 months immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses in Australia, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.

845.217 The applicant has overall had a successful business career.

845.218 Neither the applicant nor his or her spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.

845.219 The applicant has signed a declaration in a form approved by the Minister that the applicant acknowledges the Government's requirements in relation to residence in Australia as the holder of a Subclass 845 visa.

845.22 Criteria to be satisfied at time of decision

845.221 The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.

...

9. Regulation 1.03 defines some presently relevant terms for the purposes of sub-class 845:

"ownership interest" has the meaning given to it in subsection 134 (10) of the Act.

"qualifying business" means an enterprise that:
(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b) is not operated primarily or substantially for the purpose of speculative or passive investment.

10. Also to be noted is reg 1.11, which provides:

“Main business”

(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a) the applicant has, or has had, an ownership interest in the business; and
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c) the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse, in the business is or was at least 10% of the total value of the business; and
(d) the business is a qualifying business.

(2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

Within s 134(10) of the Act “ownership interest” is defined as follows:

"ownership interest" , in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

First Ground of Appeal

11. In the visa application the Appellant nominated two “main businesses”, each stated to be conducted by the same company, Golden Net International Pty Ltd (GNI). On the one hand, GNI, when trading as GNI Finance Corporation, was said to carry on a business of finance origination. On the other hand, and separately specified on the application form, GNI was said to conduct a business involving the export of meat, offal and coffee.
12. By the time the Tribunal came to review afresh the refusal decision, the Appellant had caused a company by the name of United Link Corporation Pty Ltd (United) to be registered. The Tribunal found that this occurred on 11 April 2005. It seems that United commenced business forthwith upon its registration. Its business concerned computers. That business was promoted before the Tribunal on the rehearing as a “main business”.
13. On the rehearing before the Tribunal, the Appellant’s representative advanced a submission that the true position in law was that one business had been nominated by the Appellant at the time when the visa application was made. From this it followed, so it was submitted, that the business nomination limit in para (2) of the definition of “main business” had not been reached at the time the application was made. It followed, it was submitted, that it was possible to nominate and to rely upon United’s business as a “main business” for the purposes of meeting the specified visa criteria. It was put to the Tribunal that, for the purposes of the Regulations, a legal entity could not operate more than one business. Hence, so the submission went, as GNI Finance Corporation was nothing more than a name under which GNI carried on business, rather than the name of a separate legal entity, there was but one business which could be carried on by GNI. The Tribunal rejected this submission stating (reasons para 35):

The criteria speak of businesses and just as 2 companies, or separate legal entity, could share a business, one legal entity could have more than one business. [sic]

14. The Tribunal accepted the position factually propounded by the Appellant in his visa application, ie that GNI operated two discrete businesses, one under the name GNI Finance Corporation. There was no alternative case advanced for the Appellant before the Tribunal on the rehearing that one or the other of the businesses nominated on the visa application form could not be a “main business” because it was not a “qualifying business”.
15. In the Federal Magistrates Court, the Appellant’s contention was that it was not lawfully possible for the Tribunal to have concluded that the meaning of the word “business” in the definition of “main business” was such that, even though several types of enterprise might be discernable in its operations, there could in law only be one “business” carried on by that legal entity. In disposing of that contention, the learned Federal Magistrate noted that in Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481; (2003) 129 FCR 448 Branson J, having observed that the word “business” was not defined for the purposes of the Regulations, derived assistance as to its meaning as found in standard dictionaries. In that case her Honour concluded that it was not a characteristic of the meaning of the word “business” that a business could only be carried on by one legal entity. The learned Federal Magistrate considered that the converse of this also followed from the word’s ordinary meaning, ie that a single legal entity could also carry on more than one “business” (reasons for judgment, para 41). Having reached that conclusion, his Honour then found that it was open to the Tribunal, as a matter of fact, to conclude that GNI operated two businesses.
16. It seems from the learned Federal Magistrate’s reasons for judgment that, in the course of oral submissions, the Appellant also advanced a case, which was not revealed by the grounds of judicial review that it had specified, that the Tribunal had erred by failing to consider whether each of the “main businesses” was a “qualifying business”. The learned Federal Magistrate noted (reasons for judgment, para 51) that neither party had put before the Tribunal matters relevant to establishing a “qualifying business” which was a subject “taken as said”. His Honour then opined (reasons for judgment, para 52), by reference to Saffron v Societe Miniere Cafrika [1958] HCA 50; (1958) 100 CLR 231 (Saffron’s Case), “The matter never having been put in issue before this time cannot now be raised”.
17. On the appeal to this Court, the Appellant’s submission was that the Tribunal had erred because it did not properly turn its mind to the question of whether the two businesses specified on the visa application form were “qualifying businesses” as defined by reg 1.03 of the Regulations. It was submitted that only by so doing could the Tribunal properly have determined that those businesses were separate “main businesses” for the purposes of reg 1.1(2) of the Regulations. From this it was said to follow that the rejection of United’s business as a “main business” was erroneous because it did not violate the regulatory prohibition against the nomination of more than two “main businesses”. In turn, the learned Federal Magistrate was said to have fallen into error by failing to hold that the identified alleged error on the part of the Tribunal was jurisdictional.
18. The learned Federal Magistrate was also submitted erroneously to have concluded that, because the question of whether the originally specified main businesses were qualifying businesses had not been raised before the Tribunal, it could not be raised as a jurisdictional error ground before the Federal Magistrates Court. The Appellant submitted that “the failure of the Tribunal to even turn its mind to the question of whether the main businesses nominated on the visa application form were ‘qualifying businesses’, was a fundamental failure to understand the task before it”.
19. For his part, the Minister submitted that the Tribunal’s findings that the two originally nominated businesses were the Appellant’s main businesses should be regarded as subsuming a finding by the Tribunal that they were “qualifying businesses”. The Minister further submitted that, in the circumstances, the Tribunal was entitled to act upon the Appellant’s nomination on his visa application form of two “main businesses”.
20. I doubt, with respect, whether the Appellant’s “qualifying business” argument, having regard to the pleadings, arises given the way in which the first appeal ground is cast. The point was though one fully explored in the Appellant’s written and oral submissions and one with which the Minister fully engaged in submissions in response.
21. The following features of the Appellant’s case before the Tribunal on the rehearing bear emphasis by repetition. His case there proceeded upon the acceptance by the Tribunal of the legal premise that it was not possible for one legal entity (GNI) to carry on two discrete businesses. It was never put to the Tribunal that, were this legal premise to be found unmeritorious, one or the other of the nominated businesses could not in any event be a “main business” because it was not a “qualifying business” for the purposes of the Regulations. That was not the subject of any legal or factual controversy.
22. The Tribunal’s reasons display an appreciation (para 12 and para 34) of a need for the nominated main business or businesses each to be a “qualifying business”. There was nothing in the way in which the businesses were described on the visa application form or in other material or submissions before the Tribunal to raise an interrogative note about whether the Appellant’s own nomination of the two main businesses on the application form was flawed because one or the other or each were not and could never be “qualifying businesses”.
23. In Repatriation Commission v Warren (2008) 167 FCR 511 (Warren’s Case), Lindgren and Bennett JJ (with whom in this regard I agreed) comprehensively summarised the effect of earlier authorities bearing upon the question as to whether an External Merits Review Tribunal commits legal error by not considering an issue even if it is not raised or the subject of challenge by the parties to the review proceeding before it. Their Honours stated (para 78):
    78. The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to “review” a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties:
        • The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana at 194 per Bowen CJ).
        • A party to the proceeding is not necessarily precluded from arguing on “appeal” matters that were conceded before the tribunal.  Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana at 195 per Bowen CJ and at 199 per Fox J).
        • Where a concession is made, there must be some difficulty in finding an “error of law” when the contrary of the concession is raised for the first time in this Court (Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J).
        • A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J).
        • There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 at 367 per Beazley J).
        • Even though the parties may be ‘able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it’ (Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]);
        • A concession ‘does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions’ (Peacock at[23]; and see Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at 337 – 338).
        • The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:

(a) the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday at 527–528 per Lee J);

(b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or

(c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana) .

[Full internal case references and citations omitted]

24. Of the propositions summarised in the passage quoted from Warren’s case, the present is but an example of a case where a Tribunal has not erred in law by failing to regard as material a fact which the representative of a party before it failed in submissions to contend was material. A finding by the Tribunal that each of the businesses nominated on the visa application form by the Appellant as a “main business” was indeed a “main business” necessarily, in the circumstances, carried with it a finding, a “satisfaction”, that each business, factually, met the definition of “qualifying business”.
25. The Appellant contended that the reference by the learned Magistrate to Saffron’s Case was inapt. With respect, I agree.
26. Unlike the circumstances of Saffron’s Case, the proceeding before the Federal Magistrates Court was in no sense an appeal by way of rehearing where a particular point had not been taken in a court below. Rather, it was a judicial review proceeding in respect of the Tribunal’s decision. Further, having regarding to s 65 of the Act, it was a judicial review proceeding in respect of an ultimate conclusion by the Tribunal, sitting in place of the ministerial delegate, that it was not “satisfied” that the relevant criteria for the grant of the visa sought were met. Such “satisfaction” based decisions are not unexaminable on judicial review, as the High Court noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-276 by reference with approval to remarks on that subject made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24; (1975) 135 CLR 110 at 118-119.
27. Thus, as highlighted in the summary given in Warren’s Case, the fact that a party to a proceeding before a merits review tribunal has not raised a particular issue either of fact or law will not of itself render that administrative decision immune from challenge on judicial review on the basis, for example, that a particular fact which was required by statute to be found was not found. If a required jurisdictional fact were not found by an administrative tribunal it would be nothing to the point that the tribunal had not been asked to find it. It is just that in this case the Tribunal has, at the necessary level of factual detail in the circumstances, been satisfied that there were two “main businesses” originally nominated. It was not required, in circumstances where the parties conducted their cases on the basis that it was a given, separately to consider the subsidiary question as to whether, as a matter of fact, those “main businesses” were “qualifying”.
28. The Appellant accepted that identification of this particular error on the part of the learned Federal Magistrate did not mean that the first ground of appeal must necessarily succeed.
29. The Appellant also advanced the argument that the Tribunal’s conclusion that, at the time of the application, GNI operated, as nominated, two “main businesses”, was erroneous, because those businesses “are in fact the same business”.
30. There was no error in the way in which the learned Federal Magistrate approached the meaning of the word “business” and its reach. As did Branson J in Nassif (at 454-455), I gain assistance as to the meaning the word from standard dictionaries. The word undoubtedly has chameleon like qualities, taking its meaning from the context in which it is used. In both the Oxford and the Macquarie Dictionaries the meaning of the word “business”, when used in a commercial sense, is “enterprise”. That is the sense in which it is used in the terms “main business” and “qualifying business” in the Regulations. That this is so is reinforced by its being treated, in the definition of “qualifying business”, as a synonym for “enterprise”.
31. So construed, there is nothing about the meaning of the word “business” as used in the context of the Regulations which carries with it the necessary corollary that a legal entity can only ever, on its true meaning, have or conduct but one “business”. Such a construction of the word “business” accords with common experience. It is by no means unusual for a legal entity to cease one particular field of commercial endeavour by the disposal of what is aptly termed a “business” without ceasing altogether to trade.
32. Given this meaning of the word, whether or not GNI had one or two “main businesses” was nothing more than a question of fact and one for the Tribunal alone. The learned Federal Magistrate well appreciated this (reasons for judgement, para 44). It is certainly not one this Court on subsequent appeal.
33. However approached, ground 1 of the appeal must fail.

Second Appeal Ground

34. The second ground of appeal was premised upon its being permissible for the Tribunal to have considered United’s business as a second “main business”. The dismissal of the first ground of appeal and the business nomination limit found in the definition of “main business” in reg 1.11 have the necessary consequence that there was no error in the Tribunal’s concluding that it was not able to consider United’s business for the purposes of deciding whether it was satisfied that the Appellant met the visa criteria. This consequence was accepted by the parties and, in the court below, by the learned Federal Magistrate (reasons for judgement, para 54). The point was though fully argued. I conceive that it is appropriate to address it in the event that the conclusion which I have reached in respect of the first appeal ground is in error. The learned Federal Magistrate dealt with the point on a similar basis.
35. The central point raised is, what is the true meaning and effect of the words “continues to” as they appear thus in cl 845.221: “the applicant continues to satisfy the criteria in clauses 845.213 to 845.218”?
36. On the assumption that it was not otherwise precluded by considering United’s business to be a “main business”, and having referred to cl 845.213, cl 845,216, cl 845.221, and the definition of “main business”, the Tribunal observed:

[T]he definition of main business must be met by the business the applicant has an ownership interest or is the owner of an interest, both at the time of the application and at the time of this decision. For these reasons the Tribunal finds that United is not a main business as it does not meet the definition of main business as the visa applicant did not have an ownership interest in United for at least 18 months immediately preceding the making of the visa application. Therefore the applicant does not have an ownership interest in one or more established main businesses, at the time of this decision, and the Tribunal finds accordingly. Further, the visa applicant is not involved in the management of a business or makes decisions affecting that business as the owner of an interest in a main business or main businesses in Australia, at the time of this decision, and the Tribunal finds accordingly. [Italics and emphasis in original]

37. In the Federal Magistrates Court attention centred upon whether the words “continues to” ought to be afforded the meaning given to those same words in another clause of Sch 2 to the Regulations by Allsop J (as his Honour then was) in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 (Rao’s Case)or that which commended itself to a Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 (Xiang’s Case) in respect of like words in yet another clause in Sch 2 to the Regulations. In the result, the learned Federal Magistrate considered that contextual similarities as between the words as used in cl 845 and as used in the provisions considered in Rao’s Case favoured following the construction of “continues to” adopted in that case rather than, as the Appellant had submitted, that given to those same words by the Full Court in Xiang’s Case
38. Put succinctly, the differing positions are these. The Appellant’s submission, said to be supported by Xiang’s Case, was that there was nothing in the language of either cl 845.213 or cl 845.221 which required that, in the interval between date of application and date of decision, a visa applicant have an interest in a particular business or indeed any business. The Appellant noted in submissions, as is the case, that the learned Federal Magistrate had made reference to the word “continuous” in his reasons for judgement (para 67 and para 81) in a context which suggested a belief by him that this word appeared in cl 845,221, which is not the case. This error, it was submitted, may have influenced his Honour’s interpretative preference. It was further part of the Appellant’s submission that the words “of that kind” in cl 845.213 (b) indicated that the “main business” at the time of decision need not be one and the same as that at the time of application.
39. The Minister’s submission, said to be supported by Rao’s Case, was that a visa applicant had to maintain a direct and continuous involvement in the main business (or businesses) nominated at the time of application and throughout the interval up to and including the date of decision; Xiang’s Case was said to be distinguishable.
40. The following passage from Xiang’s Case, which was cited by the learned Federal Magistrate, sets out the views of the Full Court with respect to the meaning of the words “continues to”, as well as that earlier voiced by Allsop J in Rao’s Case:

[8] The tribunal also fell into error in the meaning it placed on the word “continues” in subcl 806.221 of the Regulations. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal “[t]o hold otherwise would deny any use or purpose to the inclusion of the word ‘continues’ in the regulations”. Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213 of the Regulations. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application.

[9] Returning to the meaning of the word “continues” in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a “special need relative” both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb “continues” and not the adjective “continuing”. Second, it is plain that the word “continues” is not concerned with any activity on the part of the visa applicant, but rather with the applicant’s status; a status which has a temporal condition.

[10] Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a “special need relative”. That is to say, the applicant “continues” that status if the applicant still is a “special need relative” at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a “special need relative” at the time of the application and continues to satisfy that condition on the day of decision would be a “special need relative” throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755.There on a slightly differently worded regulation Allsop J decided that the word “continues” was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word “continues” was used in a different context. This issue need not be resolved.

41. The relevant visa class considered in Xiang’s Case is evident from the passage quoted. The “slightly differently worded regulation” considered by Allsop J in Rao’s Case was that part of the Regulations which governed eligibility for the Student (Temporary) (Class TU Subclass 560) visa sought by the visa applicant in that case. One condition to which that applicant’s existing visa was subject was condition 8105, which prescribed that the holder must not engage in work in Australia (other than in relation to her course of study or training) for more than 20 hours per week during any week when the institution at which the holder was studying was in session. Within Subclass 560, cl 560.21 set out the criteria to be satisfied at the time of application. Subclause 560.22 set out the criteria to be satisfied at the time of decision. Subclause 560.213 provided:

If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.

In turn, cl 560.227 provided:

If the application is made in Australia, the applicant continues to satisfy the criterion in cl560.213. [Emphasis added]

There was a finding of fact at tribunal level in Rao’s Case that, in the interval between date of application and date of decision, the visa applicant had consistently breached the working hours limitation.

42. The learned Federal Magistrate was keenly aware of the authority of a decision of a Full Court of this Court, if in point, as the following passage reveals. I cite it not only to highlight this but also because it evidences a correct understanding by his Honour of the language actually employed in cl 845.221 and the essence of why his Honour preferred the meaning given to the words “continues to” in Rao’s Case:

[75] It follows that for the decision in Xiang to be binding the context in which the word “continues” is used has to be materially similar to the context in that case. In my view for reasons which follow the context in which the word “continues” appears in clause 845.221 is not similar to the context to which the word appeared in clause 806.221.

Though His Honour’s use of the word “continuous” both before and after this passage was unfortunate, this passage is pivotal in his reasons for judgment. Noting this, and reading the reasons as a whole, I am not persuaded that the erroneous references to “continuous” were material to his Honour’s interpretative conclusion. What was material was the learned Federal Magistrate’s apprehension that it had been recognised in Xiang’s Case that the meaning to give to the word “continues” may depend on whether it was used in relation to a status or an activity. It was because his Honour considered that it was used in the latter context that he concluded that, in this regard, there had been no error made by the Tribunal.

43. The requirement for a duality of satisfaction by a visa applicant of particular criteria at both the time of application and the time of decision is not unique to cl 845, nor even to those considered in Xiang’s Case and Rao’s Case. It is a feature which permeates the Regulations. It is a further permeating feature that the verb “continues” is employed so as to require satisfaction on the part of the administrative decision maker at the time of decision that a visa applicant “continues to” satisfy nominated criteria which were first required to be satisfied at the time of application.
44. Against this background, it is highly unlikely, in my opinion, that it was intended by the Governor-General-in-Council when making and amending the Regulations that the meaning, as opposed to the effect in context, of “continues to” would vary throughout those regulations.
45. Though, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 at [5] per Hely J.
46. Xiang’s Case is in point to the extent that the Full Court has counselled that “continues” is a word the effect of which depends on the context in which it is used. It must not, as the Full Court stated in the passage quoted above, be read in isolation. The Full Court noted usages of the word in respect of both an activity and a status. As it happened, it was in the latter context that it was used in Xiang’s Case to the end that there it did not carry with it any requirement that the status be held in the interval between application date and decision date by the visa applicant. In Rao’s Case, as the Full Court noted, the word “continues” was used in a different context.
47. In those parts of the Regulations considered in Xiang’s Case and in Rao’s Case, as well as in the present case, “continues” is used as a transitive verb. So used, the sense of the word is “to carry on, keep up, maintain, go on with, persist in (an action, usage, etc.) (Oxford Dictionary, 2nd Ed, 1989) or “to go forwards or onwards in any course or action; keep on” (Macquarie Dictionary, Online Edition). When used for the purposes of cl 845.221 in conjunction with “a status which has a temporal condition”, it requires nothing more than that that status is possessed at the time when the assessment falls to be made, relevantly, at the time when the administrative decision in respect of the visa application is made. If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.
48. The point may illustrated by reference to the operation of cl 845.221 with respect to the “continues to satisfy” criteria referred to in that clause.
49. The criterion in cl 845.212 is status based and also temporally focussed by reference to the time of application. If that criterion is met at the time of application, it will “continue” to be met at the time of decision. I shall pass over cl 845.213 for the moment because it requires more detailed analysis in light of the circumstances of this case and the submissions made on the appeal.
50. Subclauses 845.214 and 845.215 are status based by reference to assets and, in part, temporarily limited by reference to the period ending immediately before the application is made. Insofar as they are not temporally limited in that way, asking whether the visa applicant “continues to” meet them involves in any event no inquiry as to the position obtaining during the period which has elapsed since the time of application, only what is the position at the time of decision. Subclause 845.216 entails a status (“as the owner of an interest”) but a status possessed while engaging in activity. However, there is a temporal limitation in respect of that activity, “In the 12 months immediately preceding the making of the application”. In light of that limitation, if there is satisfaction that the visa applicant met this criterion at the time of the application, there must necessarily at the time of decision be satisfaction that the applicant “continues to satisfy” this criterion.
51. Subclauses 845.217 and 845.218 are different. Each of them is activity focussed; “overall had a successful business career” and “has a history of involvement”. Deciding whether a visa applicant “continues to satisfy” these criteria will necessarily involve examining what that applicant has been doing in whatever interval has elapsed between the time of application and the time of decision. The conclusion one reaches as to the position which obtained at the time of application in respect of these criteria may differ from that reached at the time of decision because of what has occurred in the interval.
52. I apprehend that each of these conclusions as to the meaning and effect of “continues to” is consistent with the Full Court’s observations in Xiang’s Case.
53. These are Delphic qualities attending ascertaining the effect of cl 845.221 in relation to continued satisfaction of cl 845.213, even with the benefit of the guidance offered in Xiang’s Case. As a matter of first impression, cl 845.213 appears to be status based in the sense that it looks to the possession of an “ownership interest” in a “main business” or businesses. Subclause 845.213(a) carries a temporal limitation which looks to the 18 months immediately preceding the application. There is though a further and cumulative temporal limitation itself utilising the transitive verb “continues” found in cl 845.213(b).
54. The evident concern of the further temporal limitation in cl 845.213(b) is that the “ownership interest” in one or more “main businesses” over the period of 18 months immediately preceding the application must be maintained, “continue”, throughout whatever period elapses thereafter until the application is made. In other words, the intention, reflected in the language of cl 845.213(b), is that there should be no gap in the holding of an “ownership interest”.
55. Further, the continued interest must be one “of that kind”. In context, the reference in cl 845.213(b) to “of that kind” is, in my opinion, to be read as a reference to the “main business” or businesses referred to in cl 845.213(a). The use of “kind” in drafting might in other contexts admit of a more generic coverage. The embrace of the word has given rise in other contexts to sharp divisions of judicial opinion, see, for example, Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1. Here though, “kind” is governed not by an indefinite but by a very specific definite article, “that”. It is also necessary to recall that “main business” is itself a defined term. One feature of that definition, to which I have already referred, is a limit on the number of businesses which may be nominated as a “main business”. To give “of that kind” an open ended, generic construction so as to embrace yet another business, albeit one akin to that or those nominated, would be to subvert:

(a) The limitation found in the definition of “main business”; and

(b) The very managerial particular involvement, found in para (1)(b) of the definition, required for a business to be a “main business”.

56. There is no obvious reason for such subversion in respect of this particular visa subclass. On the other hand, construing “of that kind” as a reference to the “main business” or businesses referred to in cl 845.213(a) sits comfortably with a subclass the intent of which seems to be to provide a basis for the granting of a visa to those (and to the family of those) who have made a significant and continuing investment in and managerial involvement with at least one and not more than two nominated main businesses in Australia.
57. Another feature of para (1)(b) of the definition of “main business” in reg 1.11 of the Regulations is that it is activity related. Furthermore, the language employed in respect of the activity is “maintains or has maintained continuous involvement”. Necessarily, the determining of whether at the time of decision the requirements of this paragraph are met requires an assessment of an activity over a continuum. What has the visa applicant been doing in relation to the “main business” or businesses since the date of application? Further, the requirements specified in the paragraphs of the definition are cumulative.
58. Even though the other criteria in the definition of “main business” in reg 1.11 of the Regulations are status based with the consequence in respect of satisfaction as at date of decision described in Liang’s Case, the criterion in para 1(b) is not. To satisfy that criterion as at the date of decision, the visa applicant must do more than just be engaging in that activity at that time.
59. It follows that, because not all paragraphs in the definition of “main business” in reg 1.11 of the Regulations are activity related, I am not in complete agreement with the learned Federal Magistrate’s observation in respect of so much of the Tribunal proceeding that related to United (reasons for judgment, para 84) that, “the issue was not the visa applicant’s status but rather his activity”. However that may be, the learned Federal Magistrate upheld (reasons for judgment, para 85), as not attended by legal error, the Tribunal’s conclusion (reasons, para 34) that the Appellant did not have an interest in a main business at the time of the decision. Having regard to the activity related aspect of “main business” and when United was established, this conclusion flowed inevitably from what I regard as the correct meaning and application of cl 845.221, read with cl 845.213. Further, and again as found by the Tribunal (ibid) the Appellant did not have (and could never have had) an ownership interest in United in the 18 months preceding the date of the visa application. Thus, were it necessary to decide the appeal by reference to ground 2, I should dismiss it, albeit for reasons which differ somewhat from those of the learned Federal Magistrate.
60. It is difficult in the circumstances not to feel some sympathy for the Appellant with the outcome. In the period of time that it ultimately took to decide his application, business events were not static. Had the application been decided when each of GNI’s businesses was operating, the fate of the application may well have been different. Equally though, as the process elongated it was a matter for the Appellant as to whether or not GNI continued to operate the two nominated “main businesses”. If it did not, then the provisions of the Regulations governing this subclass were unforgiving.
61. For these reasons the appeal must be dismissed, with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 3 March 2009

Counsel for the Appellant:	Mr M Steele
Solicitor for the Appellant:	Sciacca's Lawyers & Consultants
Counsel for the Respondents:	Ms A Wheatley
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	9 February 2009
Date of Judgment:	3 March 2009