Yen v Minister for Immigration & Multicultural & Indigenous Affairs

1 The applicant applied on 27 April 2000 for a "Business Skills (Residence) (Class BH)" visa. Such a visa is available to a person who satisfies a series of tests which is to be found in the various regulations and schedules. Paragraph 845.215 of Sch 2 to the Migration Regulations1994 provides that one such criterion is that: 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. 2 Regulation 1.11 dealing with the meaning of "main business" provides as follows: (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. 3 The expression "ownership interest" is relevantly defined in subs 134(10) of the Migration Act 1958 (Cth) as follows: In this section: … 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. 4 Although the statutory and regulatory regime is complex, the issues raised in this case are quite limited. The question is whether or not the conclusion of the Migration Review Tribunal (the "Tribunal") that the applicant did not satisfy the requirements of par 845.215 was open to challenge on a number of grounds. That provision requires that an applicant for a visa have assets to a total value of $100,000 invested in a main business for a period of twelve months immediately preceding the making of the application. The applicant's case appears from a letter dated 29 August 2002 from her solicitors to the Tribunal, and from an earlier facsimile dated 18 September 2001 to the Department of Immigration and Multicultural Affairs. Fairly clearly, she suggested that her business interests were her interest in a company, Wong & Yen Pty Ltd, and that one of the assets of that company was an amount of $100,000 which the applicant, or perhaps the applicant and her husband, had in some way made available to that company for the purposes of its restaurant business. Although the matter is rather more complex than that, it is not necessary to go further for present purposes. The major criticism made of the Tribunal's decision concerning this aspect of the matter is that it acted upon certain legal advice which it obtained as to the formalities incidental to the assignment of choses in action in Queensland, particularly as to relevant provisions of the Property Law Act 1974 (Qld). The applicant submits that the Tribunal wrongly concluded that there could only be an assignment of a chose in action by the applicant to the company if the assignment complied with certain formalities provided by that Act. 5 Whether or not that is so does not matter in my view because it is quite clear that the Tribunal did not accept that the applicant or the applicant and her husband had ever assigned the relevant "property" to the company. The debt arose out of a transaction which had occurred between the applicant and her husband on one side and a company called Torden Pty Ltd and Mr Yiu Yan Woo on the other. It seems that the applicant had agreed to advance $100,000 to Torden Pty Ltd or Mr Yiu for the purposes of investment in another business, an amusement arcade. There was a subsequent agreement to buy out her interest. She was to receive the amount of $100,000 in April 1996. The amount was not paid in accordance with the agreement. In 1997 proceedings were commenced to recover that amount. The District Court plaint was before the Tribunal. The amount was eventually recovered in the second half of the year 2000, after the present application for a business visa had been made. It is asserted, and for present purposes it should be accepted, that it was applied in discharge of debts of the company or in payment for further supplies. That all occurred after the visa application. 6 The relevant question is as to the status of the applicant's interests in the company's business in the twelve months prior to the date of the application. Clearly, whatever the applicant's interest in the amusement arcade business had been, the parties had agreed to terminate that interest in exchange for her acceptance of $100,000. That amount was payable pursuant to the contract, and the applicant sought to recover it upon that basis. It would have been open to her to assign her claim to the company, and it seems that at some stage, perhaps in 1997, she indicated to her accountant that she intended to do so. However this was never done. Instructing her accountant to bring about that result was, of course, simply to instruct an agent to do it on her account. The company, as far as I can see, at no time became entitled, at law or in equity, to make any claim with respect to the amount or the chose in action representing it. It was never, in my view, any part of the property of the company or in any sense a measure of the applicant's interest in the company. That is what the Tribunal meant when it said in par 32 of its reasons, that it had formed the opinion that the sum of $100,000 was an asset of the applicant and her spouse but never an asset of the company. There are some passages in par 32 which might be taken as suggesting that the Tribunal was actually rejecting the applicant's evidence on this score. It is probable that such rejection was a thread of the Tribunal's reasoning. Whether that is so or not, it is clear to me that on the evidence before the Tribunal, the only conceivable outcome was as I have outlined above. 7 This question was associated with a second point made on behalf of the applicant, namely that the Tribunal had taken too narrow a view of the nature of the business or businesses in which the applicant claimed an interest. In this regard reliance was placed upon certain observations by Branson J in Nassif v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 481. However the case that her Honour was there concerned with differed substantially from the present. It appears that numerous members of a family and their companies were involved in the conduct of a business. That is not the present case. As eventually identified, the applicant's case was rather that the business in which she was involved included not only the restaurant business conducted by the company, but also the amusement arcade business to which I have referred, notwithstanding the fact that at some stage well before the commencement of the relevant twelve month period, any interest in that latter business had been bargained away. That in itself would seem to be a sufficient answer to this criticism of the Tribunal's decision, but in any event the material suggests that the amusement arcade business was never at any stage established. It is difficult to see how the applicant could rely upon any such interest in order to meet the test. 8 In the course of argument, Mr Di Carlo unsuccessfully cast around for some other basis for supporting the assertion that there was a relevant interest other than the interest in the restaurant business. He referred particularly to investments in property but he conceded, as I understand it, that such an interest does not fall within the relevant definition, being an investment in rent-bearing property which is expressly excluded. Finally, Mr Di Carlo asserted that there were questions of natural justice which arose in this case. He frankly conceded that in many respects, upon a proper analysis of his other points, it was difficult to advance many aspects of this claim. It was said, for example, that the Tribunal had, as a result of wrongly adopting the legal advice concerning the formalities associated with the assignment of choses in action, failed to consider evidence associated with that subject. Even if that were the case, it seems to me that it would not matter. For reasons which I have given, that aspect of the applicant's case was without merit. In any event, I am satisfied that the issues surrounding the assignment were considered and dealt with in an appropriate way. 9 The balance of the submissions under this heading focused upon the duty of the Tribunal to make appropriate enquiries when a need to do so emerges from the material before it. At its highest, the argument was that the Tribunal ought to have advised the applicant of the desirability of changing her investments to conform with the requirements of the various statutory and regulatory provisions. Clearly, such a submission is indefensible. To be fair to Mr Di Carlo, he virtually conceded as much. The same submission was also made in a rather less florid way, suggesting simply that there should have been further investigation by reference to the applicant's accountants to see if there was other relevant material which could have been considered. It was also suggested that the Tribunal should have offered advice as to how the applicant might re-cast her case. 10 The applicant went before the Tribunal, having taken accounting advice, at least in connection with the administration of the business, if not in connection with the application, and with substantial legal advice. I cannot accept that the Tribunal was obliged to go beyond her legal advice to investigate a case which would have, in fact, been contrary to the way in which her case was put in the solicitor's letter. I have in mind, particularly, the assertion that the Tribunal ought to have considered the possibility that the applicant still had an interest in the amusement arcade business. There is absolutely no suggestion of that in the solicitor's letter, nor is there any reason to believe that it might have been the case. I can see no further investigations that ought to have been undertaken by the Tribunal. The applicant came before it equipped with a solicitor's letter which set out her case in a way which does not appear to be unreasonable or ill-informed. It is absurd to suggest that the Tribunal ought to have made further enquiries. 11 In those circumstances, the application should be dismissed. Costs should follow the event. I order that the applicant pay the respondent's costs of the proceedings, including reserved costs.