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MIGRATION - Migration Review Tribunal - review of decision affirming a delegate's refusal of a business skills residence visa - whether MRT decision unreasonable - assessment of visa application against prescribed criteria - application dismissed.

Haroon v Minister for Immigration [2003] FMCA 150 (23 April 2003)

Haroon v Minister for Immigration [2003] FMCA 150 (23 April 2003)
Last Updated: 8 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAROON v MINISTER FOR IMMIGRATION
[2003] FMCA 150



MIGRATION - Migration Review Tribunal - review of decision affirming a delegate's refusal of a business skills residence visa - whether MRT decision unreasonable - assessment of visa application against prescribed criteria - application dismissed.



Migration Regulations 1994

Applicant:
MOHAMMED HAROON



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1053 of 2002



Delivered on:


23 April 2003



Delivered at:


Sydney



Hearing date:


23 April 2003



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr M Churchill

Martin Churchill, Solicitor



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1053 of 2002

MOHAMMED HAROON


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal ("the MRT") made on 26 September 2002. The MRT affirmed a decision of a delegate of the respondent not to grant to the applicant a Business Skills Residence Class BH subclass 845 visa. The relevant background is set out in paragraphs 3 to 10, in particular paragraphs 3 to 7, of the respondent's outline of submissions filed on 22 April 2003. I adopt paragraphs 3 to 7 for the purposes of this judgment as follows:

On 22 February 2000 the applicant applied for a Business Skills (residence) (Class BH) visa, subclass 845 (Established Business in Australia).

The relevant legislation is set out by the Tribunal. The critical criterion for the grant of the visa is 845.222, which specifies a point test, the substance of which is set out in Division 1.4 of Schedule 7 of the Migration Regulations 1994 ("the Migration Regulations"). In order for the applicant to have succeeded, he needed to meet the requirements of item 7170 of that Schedule.

The applicant has sought to rely upon his involvement in two businesses "Haroon M Fashions" and "Haroon's Saree and Gold Palace".

The application was refused by a delegate of the Minister on 9 June 2000. This was because the applicant had not established that throughout the 12 months immediately preceding the making of the application the visa applicant's main business or businesses employed not less than three full-time employees.

The Tribunal made its decision on 26 September 2002.

2. The application originally filed in this Court on 24 October 2002 simply set out the relief sought. There was a supporting affidavit filed on the same date which annexed the decision of the MRT but that did not otherwise illuminate the grounds of the application. The written submissions prepared on behalf of the respondent sought the dismissal of the application on the basis that no grounds of review had been advanced. However, at trial today, the applicant, represented by Mr Churchill, sought leave to amend the application orally to include two grounds: first, that the MRT erred in coming to a decision or finding on the turnover of the applicant's businesses relevant to his business visa application; and, secondly, that the MRT erred in coming to a finding on the number of employees of the applicant in his businesses over the relevant period.

3. More particularly, Mr Churchill submitted that I should find that the decision of the MRT was unreasonable in the sense of Wednesbury unreasonableness. Mr Churchill put submissions to me on the first issue of turnover. He felt professionally unable to put submissions to me on the second issue relating to the number of employees of the applicant's businesses, but I heard from the applicant on that issue and he was assisted by Mr Churchill in the capacity of a McKenzie friend.

4. It was apparent from an early stage of the hearing this afternoon that the applicant faced difficulties in this present application. The applicant faces a difficulty in that in order to persuade me that the decision of the MRT is unreasonable, he would need to satisfy me that the decision was so unreasonable that no reasonable person could have made it. In addition, the decision of the MRT was clearly based upon item 7170 in Schedule 7 to the Migration Regulations. That item sets out a necessary attribute to be established by an applicant in order to qualify for the relevant class of business visa. The item provides that:

Throughout the period of 12 months immediately preceding the making of the application, the main business or main businesses of the applicant or that of the applicant and the applicant's spouse:

(a) employed not less than three full-time employees (or a number of part time employees working an equivalent number of hours) each of whom

(i) is not the applicant or a member of the family unit of the applicant, and

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(b) either:

(i) have a turnover of not less than A$200,000 or

(ii) exported goods or services with a value of not less than A$100,000.

5. In order to qualify for the relevant class of visa, the applicant needed to persuade the MRT that in the 12 months immediately preceding the making of the visa application, his main business or main businesses employed not less than three full time employees and had a turnover of not less than $200,000, noting that exports were not an issue. On the evidence relied upon by the applicant at the hearing before the MRT, it was apparent that he could not satisfy the first criterion relating to employees.

6. The applicant, in a statement provided after the MRT hearing, sought to overcome this difficulty by setting out details of persons said to be employees (court book, pages 282-283). However, it is clear that the MRT could not be satisfied that any employees of businesses operated by the applicant in the 12 months prior to his visa application were full time or were paid, as opposed to being friends or family.

7. On that view alone the applicant could not establish satisfaction of an essential attribute in item 7170 and there was a proper basis for the MRT to refuse the application.

8. Mr Churchill has emphasised what he sees as an error in the approach taken by the MRT in relation to the turnover issue. The presiding member found, at paragraph 38 of the MRT decision (court book, p297), that there is no evidence that the applicant's businesses had exported any goods or services. The applicant would, therefore, have to demonstrate that the business had a turnover of $200,000 12 months prior to the lodgment of the application. Only Haroon M Fashions had been established for long enough to be eligible for assessment under this requirement. However, on the evidence provided to the MRT this partnership was dissolved in September 1999, three months before the application was lodged. Therefore, it was not possible to demonstrate turnover throughout the 12 months period preceding the lodgment of the application. The MRT was not satisfied that the main businesses satisfy item 7170(b).

9. Mr Churchill pointed out that the applicant relied upon his involvement in several businesses for the purposes of his application. Relevantly, these were Haroon M Fashions which, apparently, the applicant had an interest in from 1994 until, as the MRT found, September 1999, and, secondly, Haroon's Saree and Gold Palace from September 1999 until January 2000 immediately preceding his application for a visa. The third business, Haroon's Saree Palace, apparently commenced business in February 2000.

10. The approach of the MRT appears to have been that these businesses could not be regarded as one business for the purposes of assessment of turnover and that the main business over this period, Haroon M Fashions, was not a business of the applicant for a full 12 months prior to the lodging of the application. The applicant is entitled to argue that this approach of the MRT is mistaken, but I am not satisfied that even if that could be established the conclusion is that the MRT decision was so unreasonable that no reasonable person could have made it.

11. The applicant was involved in several businesses over a relatively short period. All appear to have been dealing with retail fashion for the ethnic Indian market but the businesses otherwise may or may not have had much in common. The turnover for Haroon M Fashions when aggregated with the turnover for Haroon's Saree and Gold Palace, on Mr Churchill's calculation, could be taken to exceed more than $200,000 over the 12 months prior to the making of the visa application, but that would require a number of assumptions, including that there was a relatively even income throughout the relevant period of the two businesses.

12. The MRT did not get to that level of detail in its examination of the matter because it took the view that only Haroon M Fashions had been established long enough to be eligible for assessment under this requirement. I am not satisfied that this approach by the MRT was so obviously wrong as to be unreasonable. In any event, as I have already found, the applicant was unable to satisfy an essential element of item 7170 in that his business or businesses could not be shown to have employed not less than three full-time employees over the relevant period.

13. In those circumstances, on the material before the MRT, the MRT was justified in affirming the decision under review and the decision of the MRT on that review was not unreasonable. I will dismiss the application.

14. I am satisfied that the Minister is entitled to an order for costs, given that the applicant has been wholly unsuccessful in the application. The amount of preparation involved in this case I would describe as average in relation to the preparation of the court book and outline of submissions. Although not a great deal of work was involved in the preparation of written submissions, Mr Lloyd was unaware what the applicant's argument would be and was left to speculate. The amount of material required for the preparation of the court book was fairly significant. In addition, the Minister was properly and reasonably represented by counsel and instructing solicitor today.

15. Generally, I see nothing in this case that takes it out of the ordinary and in such cases I have commonly made awards of costs and disbursements between $2,500 and $3,500. In this matter I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 May 2003
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