Chen v Minister for Immigration & Multicultural & Indigenous Affairs

4.1 It was not open to the Tribunal, on the whole of the evidence, to conclude that it was satisfied that the company did not conduct a business.

4.2 It was unreasonable on the whole of the evidence before the Tribunal to conclude that it was satisfied that Ever Light Pty Ltd did not conduct a business.

4.3 The Tribunal erred in construing section 134(1)(b) as requiring the holder of a Business Skills visa to be in Australia in order to participate in the day to day management of an eligible business.

4.4 The Tribunal erred in failing to consider whether it had a discretion to decline to cancel the Applicant's visa despite its satisfaction that Ever Light Pty Ltd did not conduct a business and whether it should exercise that discretion.

8 Grounds 4.1, 4.2 and 4.3 are, with some slight modifications, the grounds set out in Mr Chen's original "notice of appeal". In argument today, counsel for Mr Chen accepted that if s 474 is valid he could not rely upon grounds 4.1 or 4.2. Counsel referred to the fact that the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 upholding the validity of this provision has been appealed to the High Court and that court's decision has now been reserved. However, at the moment, the law is as stated in NAAV. I am bound to hold that s 474 is a valid enactment of the Parliament. Mr Chen is therefore not entitled to the relief sought in so far as he relies upon grounds 4.1 and 4.2. 9 Counsel for Mr Chen in argument abandoned reliance upon ground 4.3 by submitting that the Tribunal had not, in fact, made a determination under s 134(1)(b) in the course of reasoning its way to its ultimate decision. 10 As to ground 4.4, Mr Chen's submissions were that the power to cancel his visa conferred by s 134(1) is discretionary and that if the decision-maker is satisfied that at least one of the grounds for cancellation in s 134(1)(a) to (c) exist and if the decision-maker is not satisfied of the existence of the bars to cancellation in s 134(2), the decision-maker cannot proceed to cancel the visa without considering, in exercising the discretionary power of cancellation, whether he should nevertheless decline to cancel the visa. Mr Chen submitted that the Tribunal fell into error by proceeding directly from making findings adverse to Mr Chen under ss 134(1)(a) and 134(2) to its decision to affirm cancellation of the visa without first considering whether, notwithstanding these adverse findings, it should decline to cancel it. It was finally said that such error constituted the breach by the Tribunal of an inviolable condition, jurisdictional factor or structural element with the result that the Tribunal's decision is not protected from review by s 474: see the decision of the Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at par [24]. (It was not suggested that the Tribunal's decision was reviewable under any of the three provisos in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.) 11 Even if it be assumed that the power conferred on the Minister by s 134(1) encompasses a residual discretion of the kind I have referred to not to cancel a business visa, though the conditions for cancellation are established, and if it be further assumed that a failure by the decision-maker to advert to the existence of the residual discretion is capable of amounting to the infringement of an inviolable limitation on power susceptible of review by this Court under s 39B the Judiciary Act, notwithstanding s 474 the Migration Act, the point raised by ground 4.4 of the proposed amended application is without substance. 12 Though the Tribunal is charged with the task of conducting administrative merit review, this does not mean that in all cases the Tribunal, in reviewing a decision under s 134 the Migration Act, must consider every issue and matter which the primary decision-maker was obliged to consider, irrespective of the issues identified by the parties for determination by the Tribunal. Cf Comcare v Fiedler (2001) 115 FCR 328 at 336 to 339. A query from the bench as to whether it had been argued before the Tribunal that, even if it were satisfied that the conditions for cancellation created by s 134(1)(a), (b) or (c) existed and that s 134(2) did not apply, it nevertheless retained a discretion not to cancel Mr Chen's visa, which discretion the Tribunal should exercise in his favour, ultimately produced a copy of the written submissions made on Mr Chen's behalf to the Tribunal. (I also received into evidence a copy of the submissions made to the Tribunal by the Minister.) Counsel for Mr Chen relied on par 4 of his written submissions as raising for consideration by the Tribunal this issue of the residual discretion in s 134(1). This paragraph states:

It is submitted that an approach that may appropriately be taken by the Tribunal when considering what is the correct and preferable decision under section 134 is as follows:

(a) The Tribunal should first consider whether it is satisfied of the matters set out in paragraphs (a)-(c) of section 134(1). If it is satisfied of one or more of those matters then Tribunal must then proceed to consider section 134(2). If not, the decision must be set aside.

(b) If the Tribunal is required to consider section 134(2), it must decide whether it is satisfied of each of the matters in paragraphs (a)-(c). If it is so satisfied, the decision must be set aside.

(c) If the Tribunal is not satisfied of the matters in 134(2), it must then consider the exercise of its discretion under section 134(1).

(d) Section 134(3) is relevant only to the Tribunal's consideration of the criteria set out in section 134(2).

13 I accept that, by this paragraph of his submissions, Mr Chen did raise for consideration by the Tribunal whether, even if satisfied that the requirements of sub-pars (a), (b) or (c) of s 134(1) were made out and that s 134(2) did not apply, the Tribunal should, nevertheless, consider whether to overturn the visa cancellation decision in the exercise of the residual discretion said to be conferred on the Tribunal by s 134(1). In my opinion, however, it is clear enough that the Tribunal accepted this invitation but still decided the case against Mr Chen. The critical passage in its reasons is as follows:

8. The Tribunal is not satisfied that Ever Light conducted a business in Australia ("eligible" or otherwise) between the date of the grant of the Business Skills visa, 11 June 1998, and the date of the decision to cancel the visa, 8 June 2001. The commercial activities of Ever Light for the period consist of three transactions in January 2001 plus a consignment of beef to Taiwan in April 2001. Two of the transactions were of very small magnitude. There has been no system or organisation of Ever Light into a commercial enterprise. Four transactions, two of which were very small, resulting in almost no profit between mid 1999 to the end of 2001, does not amount to the conducting of a business.

9. The Tribunal is not satisfied that by 8 June 2001, Li-Shien had made a genuine effort to obtain a substantial interest in an eligible business in Australia, nor that he made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business, nor that he intended to make genuine efforts to do so. The Tribunal does not accept that Li-Shien Chen spent on average nine hours per week initially and then 20 hours per week on behalf of Ever Light.

10. The Tribunal is entitled to look at the transactions and activities conducted by Li-Shien Chen after the date of cancellation of the visa - if it would assist in the determination of whether or not the decision to cancel was the correct or preferable one. It is the Tribunal's view that the two transactions conducted at the end of 2001 do not change the Tribunal's assessment expressed in the paragraphs above.

11. The Tribunal affirms the decision to cancel the Business Skills visa of Li-Shien Chen.

14 In par 8, the Tribunal explained why it was satisfied that, as at the date of the original decision, 8 June 2001, the criterion for cancellation in sub-par (a) of s 134(1) was established. It then moved on to consider whether the bar to cancellation created by s 134(2) was established: in par 9 of its reasons, it held that it was not satisfied that, as at 8 June 2001, this bar did not exist. If the Tribunal had then moved immediately to affirming the cancellation decision, there would be some substance in the argument now relied on. But before reaching that conclusion, recorded in par 11 of its reasons, the Tribunal dealt, in par 10, with what I think can only be understood as the invitation in par 4(c) of Mr Chen's submissions to the Tribunal relied on here to show that the question of the residual discretion was a live one for the Tribunal; it there declined to exercise the discretion not to cancel Mr Chen's visa notwithstanding its findings that the conditions for cancellation in s 134(1)(a) to (c) had been made out and that s 134(2) did not apply. 15 It is apparent from the Minister's submissions to the Tribunal that he had objected to receipt of the evidence of Mr Chen's business activities after the date of cancellation of the visa on 8 June 2001 and had contended that the task for the Tribunal, in accordance with the usual approach to cancellation decisions, was to have regard only to evidence which related to circumstances which existed by no later than the time of the original cancellation decision. There is force in the Minister's submission in this Court that the Tribunal could only have had regard to the post-cancellation activities of Mr Chen referred to in par 10 of its reasons in determining whether or not to exercise the residual discretion in Mr Chen's favour. But whether the Tribunal took precisely that view of the limited relevance of Mr Chen's post-cancellation activities is unnecessary to determine: it is clear enough, as I have said, that the Tribunal accepted that it did have the residual discretion not to cancel the visa for which Mr Chen contends, that it considered whether to exercise that discretion in Mr Chen's favour but determined not to do that. 16 It was not suggested that, notwithstanding the limitations imposed on this Court's power to review the cancellation decision by the Tribunal by Div 2 of Pt 8 of the Migration Act, it remains open to this Court to examine for itself how the Tribunal in fact exercised that residual discretion. 17 Assuming in his favour the construction of s 134(1) he propounds on both the discretion and privative clause limitation points, Mr Chen is not entitled to the relief he seeks under the Judiciary Act in reliance on ground 4.4 of the proposed amended application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Applicant: Hawthorn Cuppaidge & Badgery

Solicitor for the Respondent: Blake Dawson Waldron