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[2003] FCA 481
appellant. The Tribunal’s decision was quashed; the respondent must pay the applicant’s costs, and each party has leave to seek further consequential orders.
The applicant's visa application identified Holdmark as a main business, but the evidence and submissions to the Tribunal made clear that he relied on a broader family business involving several entities. The Tribunal assessed only Holdmark. The Court held that the regulations did not require a main business to be operated by one legal entity, and that the Tribunal had to address the case actually put to it. Because it did not, its decision was quashed. The Court did not decide whether the applicant ultimately met the visa criteria.
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Bakhos Khazen Nassif, a Lebanese citizen, applied for a Business Skills (Residence), Subclass 845 Established Business in Australia visa. The applicable criterion, cl 845.215 of Schedule 2 to the Migration Regulations 1994 (Cth), required the total value of his net assets, or those he held with his spouse, in the “main business or main businesses in Australia” to be at least AUD 100,000 at the time of application and throughout the preceding 12 months ([1], [4]).
3 cited instruments linked from this judgment.
Nassif named Holdmark (Australia) Pty Ltd in the “Main business 1” section of form 1138. He described himself as a director, shareholder, secretary and public officer, with 100 per cent ownership in 1998 and 1999, and described the company's activities as formwork, general construction and property investment ([11]-[13]). He did not complete the form's section for a second main business.
But his supporting material described financial involvement in other entities too. It referred to investments in Nassif Bros Formwork Pty Ltd, Holdmark, Erinco Pty Ltd, and an interest as beneficiary in the Jayoun Family Trust. Later material also concerned Oz Leb Developments Pty Ltd ([14]-[15]). His solicitor told the Tribunal that the claim relied on a family business that was “not a single company” and identified several legal entities involved ([16]). At the hearing, Nassif described family companies acting in concert, with different companies involved in formwork, labour and property development ([19]-[20]).
The Tribunal nevertheless treated Holdmark as the nominated main business. It found that Holdmark's equity was below the required amount and excluded the claimed loans to other entities, in part because they had not been nominated ([21], [26]-[27]). The Federal Court, constituted by Branson J, quashed the Tribunal's decision on 20 May 2003. It held that the Tribunal failed to consider the case Nassif had actually presented and thereby made a jurisdictional error ([37], [44]). The Court did not decide whether the group of entities qualified as a main business or whether Nassif satisfied the visa criterion.
The central legal question was whether “main business” necessarily meant the business activity of one legal entity. The Court approached that question by reading the regulation in its context, not by treating the everyday word “business” as having a fixed meaning. It noted that “business” can have several meanings, and referred to the High Court's observation that the word takes its “colour and its content from its surroundings” ([28]-[31]).
Those surroundings included r 1.11, which defines a main business by reference to an applicant's ownership interest, involvement in management and a qualifying business. The qualifying-business definition in r 1.03 describes an “enterprise” operated for profit through providing goods or services, subject to stated exclusions ([5], [7]). Branson J considered “enterprise” a general term broadly synonymous with “undertaking”. Had the regulation meant to confine an enterprise to the commercial activities of one legal entity, she reasoned, it could have said so ([32]-[33]).
The definition of “ownership interest” in s 134(10) of the Migration Act also informed the analysis. It refers, among other things, to an interest as a shareholder in “a company that carries on the business”, and includes interests held indirectly through interposed entities ([6], [34]). Branson J considered the indefinite article significant: the language was consistent with a business being carried on with another entity, rather than necessarily by one company alone ([34]-[35]). The Court's conclusion was limited to rejecting a single-entity requirement. It did not decide which entities, if any, made up Nassif's relevant business.
The other decisive point concerned the Tribunal's task. Branson J accepted that the form identified Holdmark, but found that the material put to the Tribunal showed that Nassif did not rely only on Holdmark. The form's structure may have influenced how he completed it, and the later written submissions and hearing evidence made his broader case clear ([12]-[20], [36]). Referring to authority on the Tribunal's inquisitorial role, the Court said the Tribunal was required to respond to the case actually advanced ([36]).
The Tribunal did not do that. It said that Holdmark was the “Main Business in Australia” and treated the other entities as outside the claim because they were not nominated ([26]-[27]). It did not consider whether the entities could form part of a relevant main business, nor did it address the separate management and control question under r 1.11(1)(b) ([37], [39]).
The Minister argued that Nassif had not shown sufficient control over a business comprising multiple companies. Branson J observed that this was not the Tribunal's reasoning. The Tribunal had not considered the control requirement and then rejected the broader case on that basis ([38]-[39]). The Court expressly left open whether Nassif could meet that requirement. It also rejected the suggestion that the error did not matter because the Tribunal might ultimately refuse the claim anyway: on the record, it could not be concluded that Nassif could not have succeeded ([39]).
The failure to consider the case as advanced amounted to denial of natural justice and constructive failure to exercise jurisdiction ([37]). It was a fundamental error because the Tribunal's understanding of the business case was, in Branson J's description, a basic misunderstanding of what the applicant was asking it to assess ([40]). The decision was therefore quashed.
Before this decision, cl 845.215 required an applicant to establish that the value of net assets in a “main business or main businesses” met the statutory threshold. Regulation 1.11 supplied criteria for identifying a main business, while s 134(10) defined ownership interest and r 1.03 defined qualifying business. The text reproduced in the judgment did not define “business” itself ([4]-[8]).
The decision clarified how those provisions were to be read in this dispute: a main business did not have to be carried on by one legal entity. The Court relied on the references to an “enterprise” and to ownership interests in “a company” that carries on the business. It treated those terms as consistent with an undertaking involving multiple entities ([32]-[35]). That construction mattered because the applicant had presented a case based on family companies operating together.
The judgment also applied administrative-law principles to the Tribunal's handling of the claim. It confirmed, in the circumstances before it, that the Tribunal had to consider the case clearly advanced in submissions and evidence rather than treating the form's identification of one entity as conclusive ([36]-[37]). A failure to address that case could constitute both denial of natural justice and constructive failure to exercise jurisdiction.
The judgment did not establish that every group of related companies is one business for visa purposes. Nor did it resolve how to determine whether a particular collection of entities forms a single enterprise, whether the applicant has the required management involvement, or how assets across entities are to be valued under cl 845.215. Branson J left those questions for the Tribunal to consider on remittal ([39], [44]). The decision also records that jurisdictional errors of this kind were not protected by the Migration Act's privative clause, referring to Plaintiff S157/2002 and NAEB of 2002 ([41]).
At [33], Branson J reasoned that “enterprise” was a general term broadly synonymous with “undertaking”. The plain-English point is that the regulation's use of “enterprise” did not naturally confine the relevant business to the operations of one company.
At [35], the Court stated that it was not necessary for a main business to be carried on by a single entity. This was a conclusion about the meaning of the criterion, not a finding that Nassif's particular family businesses met it.
At [36], the Court said the Tribunal had to respond to “the case that the applicant before it actually advances”. In practical terms, the Tribunal could not stop at the form if the evidence and submissions made clear that the applicant was putting forward a broader case.
At [37], Branson J found that the Tribunal had not considered the case set out in the written submissions and that this denied natural justice and constructively failed to exercise jurisdiction. The failure was not merely a disagreement about the weight of evidence: the Tribunal did not address the relevant claim.
At [39], the Court explained that it was no answer to say the Tribunal might have rejected the application even if it had considered the case correctly. The Court could not say on the material that the applicant could not have succeeded. It left assessment of the substantive requirements to the Tribunal.
At [43], Branson J commented that the format of form 1138 might encourage an applicant to nominate one business entity even when that was not an appropriate description. That observation was incidental to the order, but it highlights the practical relationship between administrative forms and the case later advanced.
The decision is most relevant where a migration criterion refers to a business or enterprise, the governing provisions do not expressly restrict it to one legal entity, and an applicant relies on related entities operating together. The reasoning may be pertinent where different companies perform connected functions, or where an applicant's financial interest is spread across entities, provided the applicable regulatory requirements are also engaged.
It is particularly relevant where the application form asks for a named business but the applicant later supplies evidence and submissions explaining that the claim concerns a broader undertaking. The key factual feature here was not simply that Nassif had interests in several companies. It was that his submissions and hearing evidence clearly put the Tribunal on notice that he relied on a family business involving several entities ([16]-[20], [36]).
The judgment does not mean that a collection of related entities automatically qualifies as a single main business. The applicant still had to satisfy the requirements in r 1.11, including ownership interest and direct and continuous involvement in management. The Court did not decide whether Nassif met the control requirement or whether all or some of the entities could properly be treated together ([5], [39]).
A lawyer considering the decision in another matter would likely want to examine the exact visa criterion, the definitions that apply, the application form and the material actually put to the decision-maker. The decision is less directly relevant where the applicant's case was in fact confined to one entity, or where the governing text expressly limits the business to a specified legal structure. Those qualifications follow from the particular statutory language and evidentiary record considered by Branson J, rather than from a general ruling on all business-visa applications.
The judgment itself does not report any later judicial treatment of Nassif. It therefore does not provide a basis to say that a later court followed, distinguished, approved, or limited its construction of “main business”.
Branson J relied on several authorities available at the time. The contextual approach to interpreting “business” drew on Re Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation ([31]). The discussion of the Tribunal's inquisitorial role cited Muin v Refugee Review Tribunal and referred to Dranichnikov v Minister for Immigration and Multicultural Affairs ([36]). The failure to address the case advanced was also analysed by reference to Dranichnikov ([37], [40]). The treatment of jurisdictional error and the privative clause referred to Plaintiff S157/2002 v Commonwealth of Australia and NAEB of 2002 ([41]). The consequence of quashing the decision, with the Tribunal to review the delegate's decision again, was supported by reference to SBAV ([44]).
These references show the legal framework Branson J applied; they are not evidence of how subsequent courts treated Nassif. Any current assessment of its later treatment would require research beyond the judgment text provided here.
The Court left several important matters unresolved. First, it did not decide whether the companies and trust identified by Nassif, individually or collectively, constituted the relevant “main business” under r 1.11 ([39]). The judgment establishes that one legal entity was not invariably required, not that a group of entities must be treated as one business.
Second, the Court did not determine whether Nassif had sufficient direct and continuous involvement in management across a multi-entity business to meet r 1.11(1)(b). Branson J expressly said she expressed no view on whether the Tribunal, after considering that issue, might find against him ([39]). The control question therefore remained for the Tribunal.
Third, the decision did not determine whether the applicant's claimed loans and other assets met the criterion over the full 12-month period. Although Branson J noted that the Tribunal had incorrectly said that documents supporting certain loans were absent, the existence of balance-sheet entries did not itself decide the legal treatment, ownership, value or timing of those assets ([42]).
Fourth, the decision did not provide a general test for deciding when several companies constitute one enterprise. Its reasoning was tied to the text of the Migration Act and Regulations, including the use of “enterprise” and the definition of ownership interest ([32]-[35]). It should not be read as resolving how differently worded statutes or visa criteria treat corporate groups.
Finally, the Court noted that form 1138's design could prompt applicants to identify a single entity, but it did not prescribe a replacement form or decide how any future form should be completed ([43]). The practical issue it identified was that the form's structure should not obscure the case actually advanced in the evidence and submissions.
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REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Migration Review Tribunal ('the Tribunal') to refuse to grant the applicant a Business Skills (Residence) (Class BH), Subclass 845 (Established Business in Australia) visa ('the business visa'). 2 The applicant is a citizen of Lebanon. He has siblings who live in Australia and who are involved in the construction and property development industry. The applicant arrived in Australia on 3 February 1996 on a Short Stay visitor visa. He received several further visas and on 21 April 1997 he was granted a Business Long Stay Subclass 457 visa that was valid until 21 April 1999. He subsequently received several bridging visas. 3 On 24 November 1999 the applicant lodged an application for the business visa. A delegate of the respondent refused the application on 30 June 2000. The applicant lodged an application for review by the Tribunal of this decision on 25 July 2000. In a decision dated 28 November 2002 the Tribunal affirmed the decision not to grant the applicant the business visa he sought. The Tribunal found that the applicant did not satisfy the criterion specified in cl 845.215 of Schedule 2 to the Migration Regulations 1994 (Cth) ('the Regulations') as a criterion to be satisfied at the time of application.
STATUTORY PROVISIONS 4 The criterion specified by cl 845.215 of Schedule 2 to the Regulations ('cl 845.215') is in the following terms: 'The total value of the net assets owned by the applicant, or by the applicant and the applicant's spouse together, in the main business or main businesses in Australia: a) is; and b) has been throughout the period of 12 months immediately preceding the making of the application; at least AUD100,000.' 5 Regulation 1.11 deals with the meaning of 'main business'. It provides: '(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.' (emphasis added) 6 An 'ownership interest' within the meaning of the definition of 'main business' has the meaning given to it by s 134(10) of the Migration Act 1958 (Cth) ('the Act') (see the definition of 'ownership interest' in r 1.03). Section 134(10) of the Act contains the following definition: '"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.' 7 'Qualifying business' is defined by r 1.03 as follows: '"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.' 8 'Business' is not defined in the Regulations or in the Act.
THE APPLICATION 9 The application is brought under s 39B of the Judiciary Act 1903 (Cth) and the Act. The applicant seeks a writ of certiorari to quash the decision of the Tribunal and a declaration that the decision of the Tribunal is void and of no effect. He also seeks a writ of prohibition preventing the respondent or his delegates or agents from acting upon or giving effect to or enforcing the Tribunal's decision. 10 Both parties agree that the central issue in this application is whether or not the Tribunal correctly interpreted and applied cl 845.215. The grounds of the application are set out in the application as follows: 'The [Tribunal] committed jurisdictional error of law by asking itself the wrong question. Particulars The Tribunal asked itself whether the applicant had net assets of the necessary value in a specified business entity, whereas it should have asked whether he owned assets to that value in a business or businesses.' The applicant submits that the Tribunal incorrectly interpreted the words 'the main business or main businesses' in cl 845.215 by equating the word 'business' to 'single business entity'.
THE BUSINESS VISA APPLICATION 11 To apply for the business visa, the applicant was required to complete a prescribed form, namely form 1138, which is headed 'Business skills profile: Established business in Australia'. Part C of form 1138 has the sub-heading 'Main business(es)'. Notes under the heading of Part C of the form instruct an applicant that 'You may nominate up to 2 main businesses only'. The form then provides for information to be inserted on the form concerning 'Main business 1' and thereafter for information to be inserted concerning 'Main business 2'. In respect of each of 'Main business 1' and 'Main business 2' provision is made on the form for the applicant to provide, amongst other information, the following information: 'Business name Address of business premises Telephone number … What was/is your position/title in this business What was/is the major activity of this business.' 12 The applicant completed form 1138 by filling in the spaces provides for information concerning 'Main business 1' but not the spaces provided for information concerning 'Main business 2'. 13 The applicant wrote 'Holdmark (Australia) Pty Ltd' ('Holdmark') in the space provided for the provision of the business name. He indicated that he was 'director, shareholder, secretary [and] public officer' of Holdmark and owned 100 per cent of the company in 1998 and 1999. He described the major activity of Holdmark as 'formwork, general construction and property investment'. 14 In support of his application, the applicant also provided a document titled 'Business Investment Profile of Bakhos Khazen Nassif' and copies of a number of other supporting documents. These document go into considerable detail in outlining the financial affairs of the applicant. The documents make clear that the applicant is financially involved, both through Holdmark and personally, with a number of different companies. The Business Investment Profile document states that the applicant:
THE TRIBUNAL DECISION 18 The Tribunal conducted a hearing on 17 September 2002. The applicant, his accountant and one of the applicant's brothers gave oral evidence. The Tribunal also had regard, in making its decision, to the documents in the file of the Department of Immigration & Multicultural & Indigenous Affairs and to documents submitted to the Tribunal by the applicant both before and after the hearing. 19 The Tribunal in its written reasons for decision said that at the hearing before it the applicant claimed: 'that he and his family are running a family business in which his siblings have companies that act in concert, one providing formwork, another supplying labour and another handling property development. It was clear from his evidence that he regarded assets in one company being part of the assets of the whole. He said that for this reason it did not matter that his $100,000 contribution was not direct to the nominated main business, but was to some of the other family companies. The visa applicant's brother largely confirmed the visa applicant's evidence.' 20 The Tribunal's understanding of the applicant's claim as presented at the hearing accords with the applicant's solicitor's written submissions referred to above. 21 The respondent's submissions helpfully provide the following summary of the findings made by the Tribunal: 'a. In relation to the loans made by the applicant to Nassif and Erico: i. There was no documentary evidence to substantiate these; and ii. Those companies were not nominated by the applicant in his application as main businesses. b. in relation to the loan by the applicant to Oz Leb Development Pty Ltd, that company was not nominated by the applicant in his application. c. the loans from Holdmark (Australia) Pty Ltd to Nassif and Erico were made in the period from July 1999 to June 2000. d. the balance sheets of Holdmark (Australia Pty Ltd) showed net losses and an equity of $71,302.30, less than the requisite amount; e. there was no documentary evidence to establish the $100,000 claimed to have been loaned by the applicant to Holdmark (Australia) Pty Ltd. f. the applicant had no personal interest in Holdmark Developers Pty Ltd.' The applicant did not challenge the accuracy of this summary. 22 The Tribunal also noted that the delegate of the respondent who made the primary decision believed that the unaudited financial statements provided by the applicant did not fulfil the requirements of the Regulations and could not be considered. The Tribunal stated that the delegate's view on this matter was incorrect and that unaudited financial accounts could be considered, although they might be given less weight than would be given to audited material. 23 The Tribunal concluded that the applicant had not met 'the requirements of regulation 845.215 in that he did not in the 12 months preceding the visa application hold an interest of at least $100,000 in his Main Business in Australia.' The applicant therefore, the Tribunal found, did not meet the criteria for the grant of the Business visa.
CONSIDERATION 24 The applicant submits that the Tribunal equated 'main business' with a single business entity. As a result, the Tribunal only inquired into whether the applicant had sufficient assets in Holdmark to fulfil the criterion in cl 845.215. The applicant submits that the Tribunal should have inquired into whether or not the applicant had sufficient assets to satisfy the requirement in the group of entities that the applicant submitted comprised the business. 25 The respondent submits that the Tribunal was correct to treat Holdmark alone as the 'main business' for the purpose of the application. It submits that Holdmark was the only business over which the applicant had sufficient control to fulfil the requirements of r 1.11(1)(b) and that it was the main business nominated by the applicant in his application. 26 In my view, the applicant is correct in his submissions that the Tribunal considered only whether the applicant had sufficient assets in Holdmark to met the criterion specified by cl 845.215. I do not understand the respondent to dispute that the Tribunal took this approach. The Tribunal made its understanding of the 'main business' clear when it stated that: 'the visa applicant must establish that throughout the period from 23 November 1998 until 24 November 1999 (the date of the application) he owned assets of at least AU$100,000 in the main business in Australia (in this case his nominated company, Holdmark (Australia) Pty Ltd).' 27 Similarly, in refusing to consider any assets the applicant might have in Nassif Bros Formwork Pty Ltd, Erinco Pty Ltd and Oz Leb Development Pty Ltd, the Tribunal stated that: 'No documentary evidence to substantiate these claims [the loans to Nassif Bros Formwork Pty Ltd and Erinco Pty Ltd] have been provided to the department or to the Tribunal and as these companies have not been included as the visa applicant's nominated businesses, the Tribunal is unable to include the loans as satisfying the requirements of regulation 845.215. As previously stated, the Main Business in Australia that is required by regulation 845.215 is Holdmark (Australia) Pty Ltd. The same reasoning applies to the payment to Oz Leb Development Pty Ltd.' 28 A crucial issue to be determined on this application is the meaning of the expressions 'main business' and 'main businesses' in the context of cl 845.215. As is mentioned above, no statutory definition of 'business' is available to assist the determination of this issue. The dictionary definitions of 'business' are so numerous and so diverse that they provide little assistance for present purposes. I note, however, a few of the apparently more relevant definitions to be found in the Oxford English Dictionary, 2nd edn, and the Macquarie Dictionary, 2nd edn, respectively. 29 The Oxford English Dictionary, 2nd edn, includes the following definitions of 'business' amongst many others: '12.a. A person's official or professional duties as a whole; stated occupation, profession or trade. … 13.a. In general sense: action which occupies time, demands attention and labour; esp. serious occupation, work, as opposed to pleasure or recreation. … 14.a. (With pl.) A pursuit or occupation demanding time and attention; a serious employment as distinguished from a pastime. b. spec. A particular occupation; a trade or profession. … 23. A commercial enterprise regarded as a "going concern"; a commercial establishment with all its "trade", liabilities etc.' 30 The Macquarie Dictionary, 2nd edn, includes the following definitions of 'business': '1. one's occupation, profession or trade. 2. Econ. the purchase and sale of goods in an attempt to make a profit. 3. Comm. a person, partnership, or corporation engaged in this; an established or going enterprise or concern: to be in business … 6. that with which one is principally and seriously concerned.' 31 In Re Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation (1990) 171 CLR 216 Mason CJ, Gaudron and McHugh JJ observed at 226: '[o]f all words, the word "business" is notorious for taking its colour and its content from its surroundings …' (citation omitted) 32 In the present case the most relevant aspect of the surroundings of the word 'business' is the definition of 'main business' contained in r 1.11 (see [5] above). To understand the nature of a business that can be a 'main business' it is necessary to give consideration to the definitions contained in s 134(10) of the Act and r 1.03 respectively of 'ownership interest' and 'qualifying business' (see [6] and [7] above). Each of these expressions is used in r 1.11. 33 It is convenient to consider first the definition of 'qualifying business'. This is because a 'main business' in relation to an application for a visa must be a 'qualifying business' (see r 1.11(1)(d)). It is significant, in my view, that a 'qualifying business' is defined to mean an 'enterprise' of a particular kind (see [7] above). Each of the Oxford English Dictionary and the Macquarie Dictionary confirms that 'enterprise' is a word of general meaning which is broadly synonymous with 'undertaking'. Had it been intended that an 'enterprise' within the meaning of r 1.03 was to be limited to the commercial activities of a single legal entity, whether a natural person, a partnership or a company, one would have expected the regulation to say so. 34 The inference to be drawn from the use in the definition of 'qualifying business' of the word 'enterprise' is strengthened by the use in the s 134(10) definition of 'ownership interest' of the indefinite article in respect of the words 'company' and 'partnership' (see [6] above). It seems plainly to be intended that an 'ownership interest' in relation to a business can derive from, for example, a shareholding in a company that carries on the business together with another entity. Were it not so intended, paragraph (a) of the s 134(10) definition would presumably read: 'a shareholder in the company that carried on the business.' 35 I conclude that it is not a necessary characteristic of a 'main business' for the purpose of the criterion specified by cl 845.215 that the business be carried on by a single entity. I do not understand the respondent to have contended that, as a matter off construction of cl 845.215, a 'main business' may not extend beyond the commercial activity of a single entity. Rather, as I understood the case of the respondent, it was argued that, by completing form 1138 in the way in which he did (see [12] above), the applicant limited his claim to be entitled to the business visa to a claim based on his interest in Holdmark. To this extent the respondent supported the approach adopted by the Tribunal. 36 There is reason to think that the way in which the applicant completed form 1138 was significantly influenced by the format of the form itself. In any event, the Tribunal, like the Refugee Review Tribunal, has an inquisitorial role (Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 per Gleeson CJ at [7]; McHugh J at [97]; Kirby J at [208] and Hayne J at [263]). The Tribunal is required to respond to the case that the applicant before it actually advances (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 esp per Kirby J at [78]). The matters referred to in [14]-[17] and [19] above demonstrate clearly that the applicant did not base his claim solely on his interest in Holdmark, and that the Tribunal was under no misapprehension in this regard. 37 The Tribunal did not, however, give consideration to the case which was clearly put before it by the submissions dated 27 June 2002. By failing to do so it denied the applicant natural justice and constructively failed to exercise its jurisdiction by denying a hearing of the kind which the Act required that the applicant be given (Dranichnikov v Minister for Immigration and Multicultural Affairs per Gummow and Callinan JJ at [23]-[25]). 38 The respondent submits that there was no evidence to suggest that, had the relevant main business been considered as a business conducted by a number of companies, the applicant had a sufficient degree of control over a business defined in this way to fulfil the requirements of r 1.11(1)(b). For this reason the respondent submits that the Tribunal was correct to consider Holdmark alone as the main business. 39 This was not the reasoning process adopted by the Tribunal. The Tribunal did not consider r 1.11(1)(b) and issues of control and then conclude that the applicant lacked sufficient control for any entity other than Holdmark to be relevant. The Tribunal did not discuss the requirements of r 1.11(1)(b). It is possible, although I express no view on this point, that, had the Tribunal considered the control issue, it would have reached the conclusion that the respondent submits would have been the correct decision. Similarly it is possible that, had the Tribunal considered whether all or some of the entities to which the applicant referred could have been part of a relevant 'main business', it would have concluded that they could not. It might have found that the only relevant business was Holdmark. However, the result of the jurisdictional error made by the Tribunal is that the Tribunal appears not to have turned its mind to these necessary questions. It is no answer to the applicant's complaint to say that the Tribunal might have found against the applicant had it approached the case correctly. It is not possible to conclude that on the material before it the Tribunal could not have found in favour of the applicant. 40 The mistake made by the Tribunal was similar to that which the majority of the High Court found had been made by the Refugee Review Tribunal in Dranichnikov v Minister for Immigration and Multicultural Affairs. In that case Kirby J at [88] said: '…where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.' 41 Jurisdictional errors of this kind are not protected by the privative clause in s 474 of the Act (Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 195 ALR 24; NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 at [4]). 42 I also note incidentally that the Tribunal stated that one reason for not considering the loans made by the applicant to Nassif Bros Formwork Pty Ltd and Erinco Pty Ltd was that no evidence of the loans had been provided. This is incorrect. The documents attached to the applicant's original visa application include balance sheets dated June 1999 for Nassif Bros Formwork Pty Limited which lists as a current liability a loan from the applicant for $100,000 and for Erinco Pty Limited which lists as a current liability a loan from the applicant for $300,000. 43 I note further that it would seem to be desirable for the format of form 1138 to be reconsidered. Its present format has a tendency to lead an applicant to name a single business entity as the applicant's 'main business' notwithstanding that it might not be appropriate to do so.
CONCLUSION 44 The Tribunal made a jurisdictional error in failing to consider whether or not the criterion specified in cl 845.215 was met by the total value of the net assets owned by the applicant in his 'main business' as properly understood. The decision of the Tribunal should be quashed. Although no order of mandamus has been sought, the consequence of quashing the Tribunal's decision is that the Tribunal has before it the task of reviewing the delegate's decision (SBAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076). I am not presently satisfied that any further order is necessary. Each party will have leave to seek the making of further orders should he consider it necessary to do so. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Nassif
Minister for Immigration & Multicultural & Indigenous Affairs
The Tribunal’s decision was quashed; the respondent must pay the applicant’s costs, and each party has leave to seek further consequential orders.