Minister for Immigration v Wainwright & Anor [2010] FMCA 29 (22 January 2010)

Federal Magistrates Court of Australia

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Minister for Immigration v Wainwright & Anor [2010] FMCA 29 (22 January 2010)

Last Updated: 25 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v WAINWRIGHT & ANOR

[2010] FMCA 29

MIGRATION – Business visa – requirement to satisfy Public Interest Consideration 4006A – whether visa applicant could be ‘proposed employer’ – Tribunal decision set aside.

Migration Regulations, cls.457.22, 457.223,457.224, Migration Regulations, r.2.25

Wyse v Minister for Immigration [2006] FMCA 1362 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Moller v Minister for Immigration and Citizenship [2007] FCA 839

Applicant:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:

PHILLIP H WAINWRIGHT

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 275 of 2009

Judgment of:

Wilson FM

Hearing date:

25 September 2009

Date of Last Submission:

25 September 2009

Delivered at:

Brisbane

Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

Ms Wheatley

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondents:

Mr Gilbert

Solicitors for the Respondents:

Horak Frankovich Rose & Cross

ORDERS

(1) The decision of the Migration Review Tribunal dated 18 March 2009 be quashed, and a writ of certiorari issue accordingly.
(2) The application for review brought by the first respondent against the decision of the delegate of the Minister of 11 July 2007 be remitted to the Tribunal for re-hearing according to law.
(3) The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 275 of 2009

MINISTER FOR IMMIGRATION & CITIZENSHIP

Applicant

And

PHILLIP H WAINWRIGHT

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 11 July 2007 the first respondent was refused a Temporary Business Entry (Class UC) visa by a delegate of the applicant. Visa applications were also made by the first respondent’s wife and their daughter, but it is common ground that those are dependent upon the outcome of the first respondent’s application.
2. Consequent upon an application for review by the first respondent, on 18 March 2009 the Migration Review Tribunal remitted the application for those visas for reconsideration with the direction that the first respondent met the following criteria for a Subclass 457 (Business (Long Stay)) visa:
   • PIC 4006A for the purposes of cl.457.224 of Schedule 2 to the Regulations; and
   • Cl.457.224(b) of Schedule 2 to the Regulations.
3. The grounds of the application and particulars of those grounds are:
   1. The Tribunal erred in law in that it misinterpreted Public Interest Condition 4006A in Schedule 4 to the Migration Regulations and Clause 457.223(7A) of Schedule 2 to the Migration Regulations

Particulars

The Tribunal found that the undertaking given by the first respondent’s business fulfilled the requirements of PIC 4006A. The Tribunal erred by incorrectly interpreting PIC 4006A, by finding that the first respondent’s business fulfilled the definition of a “proposed employer” within the meaning of PIC 4006A. As such, the undertaking given by the business was invalid, as was the Tribunal’s waiver of the requirements of PIC 4006A;

2. The Tribunal erred in law by failing to take into account relevant information in the making of the decision

Particulars

The Tribunal failed to take into account the fact that the first respondent’s business was not a corporation, but a sole proprietor business only. As such, the business could not fulfil the definition of ‘proposed employer’ within PIC 4006A, and therefore could not validly give the undertaking purportedly given for the purposes of PIC 4006A. The Tribunal could not, therefore, waive the requirements of PIC 4006A

100. The Tribunal erred in law by taking into account irrelevant information in the making of the decision

Particulars

The Tribunal appeared to accept the submission that the first respondent’s business was a corporation, fulfilling the definition of a ‘proposed employer’ within PIC 4006A. The Tribunal thereby took into account irrelevant information in accepting that the first respondent’s business is a corporation and concluding that the undertaking was valid. In fact the business is a sole-proprietor business only. As such, the business could not fulfil the definition of a ‘proposed employer’, and therefore could not validly give the undertaking purportedly given for the purposes of PIC 4006A. The Tribunal could not, therefore, waive the requirements of PIC 4006A.

4. In order to understand the grounds relied upon, and the competing arguments, it is necessary to have regard to the statutory scheme that applied to the first respondent’s visa application.
5. When lodging documentation under cover of a letter dated 5 July 2005 the first respondent’s migration agent described the application as for a “subclass 457 Independent Executive Further Application Onshore (IEFAO) visa” (AB 398). In his application the first respondent himself said he was applying as the holder of an independent executive visa who had an established business in Australia (AB 408).
6. The focus of argument was on the criteria required to be satisfied at the time of decision, which are set out at clause 457.22 of Schedule 2 to the Migration Regulations.
7. Although it was not addressed in any detail, presumably the first respondent sought to satisfy the requirement of subclauses (7) and (7A) of subclause 457.223: see clause 457.223(1). These sub-clauses deal with a category pertaining to “independent executives”. If these requirements had been addressed by the Tribunal, it would have been apparent that the applicant proposed to develop in Australia a business activity that would be conducted by him as a principal (cl.457.223(7)(a)(i)). These types of visas were discussed by Smith FM in Wyse v Minister for Immigration [2006] FMCA 1362.
8. The first respondent was also required to satisfy subclause 457.224, which provided:

The applicant satisfies:

(a) public interest criteria 4001, 4002, 4003, 4004, 4010, 4013 and 4014; and
(b) if:

• (i) the applicant is the holder of a visa granted on the basis that the applicant met the requirements of subclause 457.223(7); and
• (ii) the applicant seeks a visa on the basis that the applicant meets the requirements of subclause 457.223(7A);

public interest criterion 4005; and

(c) except where the applicant meets the requirements of subclause 457.223(9) – public interest criterion 4006A.

9. As counsel for the applicant submits, at the time of the decision the first respondent was not the holder of a visa granted on the basis that he met the requirements of cl.457.223(7). He was then the holder of a bridging visa. Therefore, the first respondent was not required to satisfy public interest criterion 4005.
10. However, PIC 4005 is not wholly irrelevant. It is in the same terms as PIC 4006A, to which reference will shortly be made, but importantly does not include provision that allows the requirements of the condition to be waived. It can therefore be seen that the statutory scheme that requires satisfaction of PIC 4005 by applicants seeking ‘independent executive’ subclause 457 visas is stricter than that which applies to other categories of applicants. If the first respondent held a subclause 457.223(7) visa at the time the decision was made, PIC 4005 would have been required to be satisfied and could not have been waived. This is an important factor when considering the proper construction of PIC 4006A.
11. It is not in issue that the first respondent did not meet the requirements of cl.457.223(9). Therefore, at the time of the decision, the first respondent was required to satisfy public interest criterion 4006A.
12. PIC 4006A provided:
    • (1) The applicant:
      • (a) is free from tuberculosis; and
      • (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
      • (c) subject to subclause (2), is not a person who has a disease or condition to which the following subparagraphs apply:
        • (i) the disease or condition is such that a person who has it would be likely to:
          • (A) require health care or community services; or
          • (B) meet the medical criteria for the provision of a community service;
        • during the period of the applicant’s proposed stay in Australia;
        • (ii) provision of the health care or community services relating to the disease or condition would be likely to:
          • (A) result in a significant cost to the Australian community in the areas of health care and community services; or
          • (B) prejudice the access of an Australian citizen or permanent resident to health care or community services;
        • regardless of whether the health care or community services will actually be used in connection with the applicant; and
      • (d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking.
    • (2) The Minister may waive the requirements of paragraph (1)(c) if the relevant employer has given the Minister a written undertaking that the relevant employer will meet all costs related to the disease or condition that causes the applicant to fail to meet the requirements of that paragraph.
    • (3) In subclause (2), relevant employer means the proposed employer (within the meaning of the relevant Part of Schedule 2) in Australia:
      • (a) of the applicant (if the applicant is an applicant to whom the primary criteria apply); or
      • (b) if the applicant is an applicant to whom the secondary criteria apply – of the person:
        • (i) who meets the primary criteria; and
        • (ii) of whose family unit the applicant is a member.
13. Regulation 2.25A of the Migration Regulations provides:
    • (1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:
      • (a) the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or
      • (b) the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified by Gazette Notice for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.
      • Note foreign country is defined in paragraph 22(1)(f) if the Acts Interpretation Act 1901 as any country (whether or not an independent sovereign state) outside Australia and the extended Territories.
    • (2) In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor)(Class UB) visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the applicant meets the requirements of:
      • (a) subparagraphs 675.221 (2) (f) (i) and 675.221 (2) (g) (i), (ii) and (iii) of Schedule 2; or
      • (b) subparagraphs 685.221 (2) (f) (i) and 685.221 (2) (g) (i), (ii) and (iii) of Schedule 2;
      • if there is information known to Immigration (either through the application or otherwise) to the effect that the applicant may not meet any of those requirements or be able to satisfy the Minister as to those matters.
    • (3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
14. The Department received an opinion dated 15 June 2007 from a Medical Officer of the Commonwealth that the applicant did not satisfy PIC 4006A(1)(c). On 6 November 2008 a Review Medical Officer found the applicant satisfied PIC 4006A(1)(a) and (b).
15. Therefore, the Tribunal was required, pursuant to Regulation 2.25A(3), to accept that the first respondent did not satisfy PIC 4006A(1)(c). The Tribunal did so: Reasons [15], [20], [21].
16. There is no contest that the Tribunal identified the correct question to be answered, at paragraph 6 of the reasons for decision.
17. Having found that the first respondent was required to satisfy PIC 4006A, and having accepted that the first respondent did not satisfy PIC 4006A(1)(c), the only way in which the first respondent would be legally entitled to the visa sought would be if a waiver were granted pursuant to PIC 4006A(2).
18. The Tribunal decided to waive the requirements of PIC 4006A(1)(c).
19. The critical reasoning of the Tribunal is set out at paragraphs 18 – 20 of the reasons, as follows:
    • “18. The Tribunal has already found that the applicant does not meet PIC 4006A(1)(c). However, under PIC 4006A(2) the Tribunal may waive the requirements of PIC 4006A(1)(c) if the relevant employer has given the Minister a written undertaking that the relevant employer will meet all costs related to the disease or condition that causes the applicant to fail to meet the requirement of that paragraph. PIC 4006A(3) states that “relevant employer” means the proposed employer (within the meaning of the relevant Part of Schedule 2) in Australia.
    • 19. The ‘relevant part of Schedule 2’ is Part 457 of Schedule 2 as at the time of application. The Tribunal has considered Part 457 and notes that it does not provide a definition of “proposed employer”. The only subclauses of cl. 457.223 that refer explicitly to “the employer” are subclauses 457.223(4) and (5) (and in the latter case the proposed employer does not operate a business activity in Australia), yet it is clear from the text of subclauses 457.223(2), (3), (7A) and (1) that the applicant in each case is to be employed by a business operating in Australia. This suggests to the Tribunal that “proposed employer” should be given its ordinary meaning. In the present case, the Tribunal considers that SpartaMatrix is the applicant’s proposed employer in Australia and therefore the relevant employer for the purposes of PIC 4006A(2).
    • 20. The applicant, in his capacity as the principal of SpartaMatrix Australia, has given the Minister a written undertaking . . . that SpartaMatrix will meet all costs related to the disease or condition that causes the applicant to fail to meet the requirements of PIC 4006A(1)(c). The Tribunal accepts that SpartaMatrix is the relevant employer of the applicant and that the written undertaking meets the requirements of PIC 4006A(2). The Tribunal therefore waives the requirements of PIC 4006A(1)(c) in respect of the applicant.”
20. The undertaking to which reference is made was one provided by the first respondent himself. A written undertaking dated 23 February 2009 was received by the Tribunal in the following terms:
    • “I, Philip H Wainwright, being the director of SpartaMatrix Australia with the address of 320 Adelaide Street, Level 5, CBD Brisbane 4000 (CAN: BN18691122) do hereby state that I am a director of the Company. I am also an employee of the Company and am authorised to bind the Company in all its matters and affairs.
    • The Company SpartaMatrix undertakes to pay for any and all costs in relation to any disease or condition I may currently have which may affect my eligibility in the application before the Immigration Department for any visa current or future.
    • I also undertake to pay these costs individually and/or on my own behalf and also undertake to cover the costs of any condition or disease which may affect the Secondary applicants, ie any member of my family.
    • I request the Honourable Minister to thereby waive the requirements pursuant to 4006A, paragraph (1)(c) on the basis that I give such an undertaking
21. The applicant challenges the notion that the first respondent could himself give the undertaking, and contended that the Tribunal erred in accepting that the requirement of PIC 4006A(1)(c) could be waived where there was an identity between the visa applicant and the ‘proposed employer’.
22. The applicant accepts that the Tribunal’s decision was a “privative clause decision” and, as a result, it can only be set aside on judicial review if jurisdictional error is shown: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-8, 511.
23. A general description of what constitutes jurisdictional error is to be found in the judgment of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179:
    • "If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
24. An incorrect interpretation of a statutory provision, being an error of law, can constitute jurisdictional error.
25. Before dealing with the issue debated by the parties, namely whether a self employed person could offer the undertaking required as the relevant employer, another issue needs to be considered that arises from paragraph [19] of the reasons for the Tribunal’s decision.
26. In PIC 4006A(3) ‘relevant employer’ is relevantly defined to mean “the proposed employer (within the meaning of the relevant part of Schedule 2) of the applicant”. In my view, the Tribunal has correctly identified Subclass 457 of Schedule 2 as the relevant part of Schedule 2. It has also correctly identified that there is no definition of “proposed employer” in Clause 457.
27. However, clause 457.223 contemplates in three sub-clauses that an employment relationship will come into existence involving the visa applicant: cls.457.223(3)(b)(i), 457.223(4)(a) and 457.223(5)(a). For cl.457.223(7) and (7A) no employment relationship is envisaged. Indeed, as set out earlier, the ‘independent executive’ category presupposes that the visa applicant will carry on business as the principal.
28. It seems to me that if an applicant is not seeking a visa where an employment relationship will come into existence, there can be no ‘relevant employer’ because there will be no proposed employer involved. Thus, the availability of a waiver would not arise.
29. Turning then to the issue debated by the parties, namely whether there must be an employer separate to or distinct from the visa applicant for subclauses (2) and (3) of PIC 4006A to be enlivened, I observe that the respondent accepts that SpartaMatrix was not a separate legal entity, but only a registered business name. The references in the undertaking set out at paragraph [20] above to ‘company’ and to the first respondent being a ‘director’ were therefore incorrect.
30. The business of SpartaMatrix is operated by the first respondent on his own account (AB 410).
31. I note that the first respondent and his wife also operate a business through Capital Bancorp Pty Ltd trading as Bon Gateau. That company operates two cafes and patisseries at the Gold Coast. However, the Tribunal did not consider (nor was it asked to) whether that company could be regarded as the first respondent’s employer, and whether it could supply the requisite undertaking.
32. The applicant submits that the ‘relevant employer’ needs to be a legal person other than the visa applicant.
33. That construction makes sense. It accords with a common sense reading of the legislation. After all, the consideration of a waiver arises where an employer undertakes to meet health costs of the visa applicant. It would not make sense if the visa applicant himself could give that undertaking, because PIC 4006A(1)(c) seeks to disqualify such persons. PIC 4006A is concerned with identifying visa applicants who, by reason of an illness or disease, may make demands on the Australian health system or community services. Those visa applicants are prima facie required to have their applications rejected. If the proposed employer of the visa applicant undertakes to meet the cost of health care or community services, then a waiver can be considered. If it was intended that a visa applicant himself or herself with sufficient assets could provide some form of security to meet health care costs or the like then that could easily have been said in the Regulations.
34. As noted earlier, it is the plain intent of the legislation that applicants for a subclass 457.223(7) or (7A) visa would not be entitled to consideration of a waiver, because they would have to satisfy PIC 4005.
35. Further, the Tribunal found that SpartaMatrix was the proposed employer of the first respondent. Despite giving the term ‘proposed employer’ its ordinary meaning, the Tribunal failed to consider that SpartaMatrix and the first respondent were, in effect, the same. The business had no separate legal personality. The first respondent could not be his own employer.
36. For there to be an employment relationship, which is a species of contract, there would need to be two contracting parties, an employer and an employee. The first respondent could not contract with himself. If authority is needed for this trite proposition it can be found in Moller v Minister for Immigration and Citizenship [2007] FCA 839, dismissing an appeal from this Court, particularly at [24].
37. The first respondent urges that ‘employer’ should not be strictly construed, or even given its ordinary meaning. However, in my view the use of the word ‘employer’ in PIC 4006A is clear and unambiguous. Further, the need for a different legal entity to give the undertaking is underscored by the non-inclusion of a waiver mechanism in PIC 4005.
38. The first respondent in substance submits that if his business has sufficient assets to meet any health care or community care costs, a waiver should be available. The applicant submits that the intent behind the waiver provision must be to provide a separate financial source to meet health costs related to the visa applicant’s disease. That submission highlights the error in the first respondent’s argument. Once it is accepted that there need to be a ‘separate’ financial source, it must necessarily follow that the visa applicant himself cannot be that financial source. Yet, that is what was proposed in this case.
39. It is hard not to feel some sympathy for the first respondent. He is a successful businessman. He wants to come to Australia to operate an innovative business that will be of benefit to Australia. His visa application was supported by the Queensland Government (AB416) as being of benefit to Queensland.
40. The legislation as it is currently drafted has the effect of excluding self employed entrepreneurs who cannot satisfy certain health requirements, notwithstanding how successful they might be, or what level of financial security they may have. Consideration should be given to remedying this lacuna in the legislation.
41. This Court must, however, construe the legislation as it is. In my view, therefore the Tribunal erred first, in its interpretation of PIC 4006A(2) and (3) to the extent that it decided effectively that the visa applicant himself could give the undertaking; and, secondly, in deciding that SpartaMatrix could be an employer of the first respondent.
42. The decision of the Tribunal must be set aside. The matter should be remitted to the Tribunal to be considered according to law.
43. Because the applicant has succeeded, costs should follow the event.

I certify that the preceding 43Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-threeforty-three (43) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 22 January 2010