Guo v Minister For Immigration & Multicultural Affairs - [2000] FCA 146 - FCA 1998 case summary — Zoe

CTHFCA

Guo v Minister For Immigration & Multicultural Affairs

[2000] FCA 146

Federal Court of Australia|1998-09-24|Before: Tamberlin J, Santow J, O'Loughlin J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

1998-09-24

Before

Tamberlin J, Santow J, O'Loughlin J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant in these proceedings, Mei Feng Guo ("Mrs Guo") is a Chinese national. She applied for a Temporary Business (Long Stay)Visa (Class UC) (Subclass 457), indicating in her application that she was applying as an "Independent Executive" who was intending to establish two businesses in Australia. The requirements that must be met by an applicant for such a visa are contained in Regulation 457.223(7). They are as follows: "(7) The applicant meets the requirements of this subclause if the Minister is satisfied that: (a) the applicant proposes to develop in Australia a business activity that will be: (i) conducted by the applicant as a principal; and (ii) of benefit to Australia; and (b) the applicant has a genuine and realistic commitment: (i) to maintain or obtain an ownership interest in a business in Australia; and (ii) to maintain a direct and continuous involvement in the management of the business; and (iii) to make decisions that affect the overall direction and performance of the business from day to day; and (c) nothing adverse is known to Immigration about the applicant's business background; and (d) the applicant has net assets of: (i) not less than AUD250,000; or (ii) a lesser amount that the Minister considers to be adequate; to conduct or establish the business; and (e) the applicant has personal attributes and background that are relevant to, and consistent with, the nature of the proposed business; and (f) the applicant has demonstrated that there is a need for the applicant to be temporarily resident in Australia to conduct or establish the proposed business."

[2]

[3]

2 The two projects, to which Mrs Guo referred to in her application, were first, her investment in a vineyard, and secondly, her proposed investment in a company that would manufacture goats' milk tablets ("the milk tablets project"). 3 In her agent's letter that accompanied her application, and in some supporting documents that were annexed to her application, details of the vineyard project were set out. The relevant information was: "Nocton Park Development Pty Ltd has been established as a investment and management company located in Hobart, Tasmania, which has developed an establishment plan to pool funds from foreign investors to establish a vineyard in the Richmond area of Tasmania." 4 Mrs Guo deposited over AUD$100,000 with Perpetual Trustees Tasmania Ltd in June 1999. That company is handling the investment funds for the Nocton Park Development project. 5 The agent's letter continued: "Investors in the Nocton Park Development project will be involved and consulted in each step of the development and management decisions of the project and it is hoped that through the participants diverse business links in China the finished wine can be exported to China with participants all contributing to the marketing of the wine." 6 As to the milk tablets project, the agent said in its letter that "a decision has been made to establish a goat milk tablet factory in Nocton Park Farm within the Nocton Park development project". The letter continued that it was intended that a new company, to be called Nocton Park Goat Milk Tablets Co Pty Ltd "will be established and managed by Nocton Park Development Pty Ltd". The agent explained that Mrs Guo will be one of six Chinese shareholders and that each shareholder in the company will be responsible for certain areas of the business. The letter then listed six investors who were to be senior executives in the new company together with the positions that each of them would hold. They were: · Mr Han Siqi, General Manager · Mr Zhang Lei, Deputy General Manager · Ms Zhuang Jing Juan, Business Manager of milk tablet workshop · Mr She Ji Zhong, Vineyard Manager · Ms Tam Tak Ping, Trade Manager · Ms Guo Mei Feng, Accounting Manager 7 Details of Mrs Guo's duties as accounting manager of Nocton Park Goat Milk Tablets Co Pty Ltd were said to include: "prepare and process accounts receivable and payable dispatch workers' salary assist accountant to prepare fiscal financial report weekly report to the general manager in regards to the financial situation of the milk tablet workshop."

[9]

15 Both counsel referred to the contents of the "Procedures Advice Manual 3", (Ex A1), a publication of the respondent's Department that sets out policy guidelines, and a document to which the delegate referred in his reasons for the purpose of addressing the meaning of the word "principal". As the manual pointed out, the word is not defined in the Regulations; its author therefore proceeded with the following observation: " … the ordinary dictionary meaning applies. Meanings given in the Macquarie Dictionary include: · "First or highest in rank"; · "chief or head" · "a person primarily liable for an obligation"." 16 Applying this rather limiting and singular role of the word "principal", Ms Maharaj submitted that the only person in the proposed milk tablet company that could fulfil the role of "principal" would be Mr Han Siqi, the general manager designate of the company. That restrictive interpretation is in my opinion inappropriate. It could restrict partnerships, joint ventures and companies to one of several persons, notwithstanding that the others were involved at a meaningful, albeit lower, level of management. Furthermore, such an interpretation is inconsistent with the subsequent contents of the manual. Paragraph 2 shows that there can be more than one principal and par 3 sets out some of the factors that a delegate may feel it necessary to consider. I consider that these two paragraphs are appropriate guidelines. They are in the following terms: "2. The number of principals in a business will depend primarily on three factors: · the form of ownership which could include sole proprietor, partnerships, trusts, private and public companies and companies listed on the stock exchange; · the equity or applicant's share of the business; and, · the role of the applicant in the business. 3. Minority shareholders (or shareholders who are employees of the business) could have difficulty substantiating claims that they are a principal. Officers may need to examine: · the number of other shareholders; · the comparative size of these shareholders' holdings; · the shareholder's roles in decision making; and · the structure and procedures of the business for allocating responsibility and decision making."

[11]

18 Mr Gibbons, counsel for the applicant sought to minimise these omissions by pointing to s 56 of the Migration Act 1958 (Cth) ("the Act") which allows the delegate to seek out and obtain additional information. But, in my opinion, that provision does not impose an obligation on the delegate to do that. The primary responsibility rests with the applicant, she should place all relevant information before the decision-maker. 19 Section 481(1) of the Act confers power on the Court, in its discretion, to make a number of orders including an order setting aside the decision that is the subject of the application for review and referring the matter back for further consideration. The failure on the part of the delegate to make any reference to the milk tablets project is an astonishing omission. It suggests that the speed with which the application was rejected shows that the matter was not given proper consideration. Prima facie, Mrs Guo has established reviewable error and the matter should be remitted back for further consideration, unless a valid reason exists for refusing that relief. 20 There are cases where, despite a finding that a particular error has been made, a decision has not been set aside or remitted for further consideration because it would be futile to do so; see for example, Lek v Minister for Immigration, Local Government and Ethnic Affair (1993) 43 FCR 100 per Wilcox J at 136, Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 per Sackville J at 238, and Jaswal v Minister for Immigration and Multicultural Affairs (Tamberlin J, 24 September 1998, unreported). 21 However, as Beaumont J pointed out in Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540, the court ought not to exercise the discretion to refuse relief if it is "possible" that the end result might not be the same at a further hearing: (see also Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 at 647 per Merkel J. The Court will refuse to remit a matter, only if it is convinced that there is no possibility that an alternative view could have been arrived at by the delegate. 22 In my view, this Court cannot say with certainty that, upon a proper consideration of Mrs Guo's application with respect to the milk tablets project, her application will be rejected. For that reason the application is allowed; the decision of the delegate is set aside and the mater is referred to the delegate who made the decision for further consideration in terms consistent with these reasons.

[21]

27 In Y v M (see above), Temm J referred to his remarks in an earlier judgment that dealt with another aspect of the same litigation, saying: "It appears to be a misconception of some prevalence that a solicitor's only duty is to the interests of the client. That is not right. The lawyer undoubtedly has a duty to the Court that the Court be not misled. There is a wider public duty allied to that, by which a lawyer is under an obligation to refuse to make allegations that are not sufficiently based. It can be unprofessional conduct to make allegations of dishonesty without a proper basis. It is equally unacceptable for a solicitor to make accusations of fraud… without adequate grounds for doing so. An assertion unsupported by evidence is not enough. An accusation is not evidence." 28 In Rondel v Worsley (see above), Lord Reid said at p227: "Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession…." 29 Minister Administering Crown Lands (Consolidation) Act & Western Lands Act v Tweed Byron Aboriginal Land Council (see above) was applied by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169, in which he stated at 170 that: "An allegation of fraud made by a solicitor in a pleading when there is no factual basis for it is sufficient to constitute a serious dereliction of duty or serious misconduct which will enliven the jurisdiction to order costs against the solicitor." 30 In the circumstances of this case, a costs order against the practitioner would not be warranted and because the allegation of fraud was not pursued beyond its inclusion in the original application a reference to the Law Society of South Australia Inc need not be made. The case was fought as if the allegation had not been made and the respondent unsuccessfully defended the matter by pursuing the futility argument. In those circumstances I have concluded that the normal costs order should be made: there will therefore be an order that the respondent pay the applicant's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Guo v Minister For Immigration & Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (3)