FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328

ADMINISTRATIVE LAW – materiality of the alleged errors – where alleged error on behalf of the Migration Review Tribunal does not vitiate the decision – where on the evidence before the Tribunal no other conclusion open to the Tribunal – where decision sustainable on another ground unaffected by error – no jurisdictional error

MIGRATION – applications for Business Skills Established Business (Residence) (Class BH) visas – whether appellants satisfied statutory criteria at time of decision of the visa application – whether visa applicants had ownership interest in established main business in accordance with cl 845.221 of Sch 2 Migration Regulations 1994 (Cth) – whether Tribunal took into account irrelevant considerations in identifying the “main business” – whether Tribunal in error in conflating its identification of the “main business” with the question of whether the first appellant had an “ownership interest” in that business – no error in treatment of the “main business” question

Held: appeal dismissed

Migration Act 1958 (Cth), ss 65, 134

Migration Regulations 1994 (Cth), regs 1.03, 1.11, Sch 2 cll 845.213, 845.221

Craig v South Australia (1994) 184 CLR 163

Ibrahim & Ors v Minister for Immigration & Anor [2009] FMCA 593

Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474

Liang v Minister for Immigration (2009) 175 FCR 184; [2009] FCA 189

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 162 CLR 24

Nassif v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 448; [2003] FCA 481

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43; [2003] FCAFC 129

V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018

X v Commonwealth of Australia (1999) 200 CLR 177; [1999] HCA 63

Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

ROMEO ELIAS IBRAHIM, AMAL FARID EL BAZI, ELIE IBRAHIM, SABINA IBRAHIM and SEBASTIAN IBRAHIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 868 of 2009

JAGOT J

18 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the first respondent’s costs of the appeal as agreed or taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          In this appeal the appellants seek to set aside orders of the Federal Magistrates Court dismissing their application challenging the validity of a decision of the Migration Review Tribunal (the Tribunal).  The Tribunal decided that the appellants were not entitled to the grant of visas under s 65 of the Migration Act 1958 (Cth) and thus affirmed a decision of the first respondent (the Minister) to that effect. 

2                          The appellants’ entitlements to visas of the relevant class for which they applied, Business Skills – Established Business (Residence) (Class BH) visas, depended on the first appellant satisfying a requirement in respect of an “ownership interest” in an “established main business” in accordance with cll 845.213 and 845.221 of Sch 2 to the Migration Regulations 1994 (Cth).  Clause 845.213 specifies criteria to be satisfied at the time of the making of the visa application.  Clause 845.221 specifies criteria to be satisfied at the time of the decision about the visa application.  The Tribunal decided that the requirements of cl 845.221 were not satisfied.  The Federal Magistrates Court held that, in so deciding, the Tribunal erred in its construction of one aspect of the statutory provisions (the meaning of “main business”) but that the error was immaterial because the Tribunal’s decision was based on another independent ground relating to the question of the first appellant’s “ownership interest” in any such “main business” at the time of the decision about the visa application (Ibrahim & Ors v Minister for Immigration & Anor [2009] FMCA 593).

3                          In this appeal the appellants claim that the Federal Magistrate erred because, properly understood, the Tribunal’s findings about the issue of the “ownership interest” were not independent from and unaffected by the Tribunal’s error about the “main business”.  The Minister defends the finding of the Federal Magistrate and, by a notice of contention, claims that the Tribunal did not err in respect of the question about the “main business”.  The Minister contends that in any event, the remittal of the matter to the Tribunal would be futile because of a change in circumstances after the initial Tribunal hearing undermining the first appellant’s capacity to satisfy the statutory criteria.

THE QUESTION OF MATERIALITY

4                          During the course of the hearing of the appeal I raised with the appellants’ counsel a question about the materiality of the alleged errors.  I did so because the written submissions for the appellants did not disclose the answer they proposed the Tribunal should have given to the questions posed by the statutory criteria on the basis of the material which the Tribunal had before it.  The appellants’ counsel acknowledged that, on the basis of the material the Tribunal had before it, the Tribunal could not have found that the first appellant had an “ownership interest” in a “main business” at the time of its decision about the visa application as the statutory criteria required.  The appellants’ counsel submitted, however, that this was not fatal to the appeal because the Tribunal was an inquisitorial body.  Although it did not have a duty to make inquiries, it had the power to do so.  The Tribunal, if it had applied the law properly, might have sought further information about the first appellant’s “ownership interest”.  By committing legal error, the Tribunal deprived itself of the opportunity to do so.  Moreover, if the Tribunal’s decision were set aside by reason of a jurisdictional error then it could not be said that the remittal would be futile.  There was material available in the form of an affidavit from the appellants’ accountant which, although not before the Tribunal, established a sufficient basis for concluding that the first appellant might be able to establish the required “ownership interest” in the “main business” by reason of the second appellant (the first appellant’s wife) holding her shares in a company on trust for the first appellant. 

5                          As I raised this issue of materiality during the hearing I gave both parties an opportunity to make further written submissions about it.  The appellants’ further submissions contended that a decision depends on an error (and thus the error is material) “unless there is a separate, unimpeachable basis for the decision” (emphasis in original).  The appellants submitted that this followed from first principles.  An administrative decision-maker, such as the Tribunal, has no power to make a decision otherwise than in accordance with law.  If an administrative decision-maker “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it” (Craig v South Australia (1994) 184 CLR 163 at 179).  The appellants described the decisions in Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 and V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018  as consistent with their submissions.  Hence, according to the appellants, the only issue in the present case was whether the discretion to remit should be exercised against the appellants.  It was submitted that in the circumstances of the present case the discretion could not be exercised against the appellants. 

6                          I do not accept the appellants’ approach to the requirement of materiality. 

7                          First, it may be accepted that courts frequently deal with matters that might be relevant to materiality in the context of the discretion not to make futile orders (for example, X v Commonwealth of Australia (1999) 200 CLR 177; [1999] HCA 63 at [112]).  But this does not mean that the latter principle subsumes the former.  Nor does it mean that the question of materiality involves the exercise of discretion.  The principle that an administrative decision will not be set aside unless affected by a material legal error is separate from, and logically anterior to, the existence of a court’s discretion not to set aside such a decision because its remittal to the administrative decision-maker would be futile.  Unless there is a material legal error then the question of the discretion not to make orders setting aside a decision by reason of the futility of any remittal will not arise because the decision will not be vitiated by reason of the legal error. 

8                          Second, a legal error is material in the relevant sense when the administrative decision depends or is based on the error.  The appellant accepted that an error will not be material if the decision is sustainable on an independent alternative ground (as the Federal Magistrate found in the present case).  But this does not exhaust the requirement of materiality.  An error also will not be material if no other decision could have been made on the basis of the material available to the decision-maker.  The passage in Craig at 179 on which the appellants rely, properly understood, undermines the appellants’ central proposition.  The High Court has said that an administrative decision-maker has no power to make a decision contrary to the only decision open on the evidence.  It necessarily follows that a decision that accords with the only decision open on the evidence is lawful. 

9                          Other decisions also refer to the two aspects of the requirement that an error be material.

10                        The first aspect of the principle was conveniently stated by Handley JA in the Court of Appeal of New South Wales in Yates Property at 177 as follows:

The relevant principles are, in my opinion, correctly stated by Moffitt P in

Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA

409 at 419 as follows:

“… It is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error. … It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.”

The same approach has guided the Federal Court in the exercise of its jurisdiction to review decisions of the Administrative Appeals Tribunal for errors of law: see Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 413; Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 146, 156, 164; Director-General of Social Services v Hales (1983) 78 FLR 373 at 401 and Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 182.

11                        There is a clear statement of the second aspect of the materiality principle in Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477 where O'Loughlin, Lindgren and Sackville JJ said:

…it is not enough for an applicant to demonstrate that a tribunal has mis-stated the law on a particular matter, if the mis-statement could not have affected the tribunal's decision. An immaterial error does not vitiate the decision: BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 at 253-254, per Lockhart and Hill JJ; Waterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555 at 566. In the circumstances of the present case, the Tribunal's comments on the significance of legal custody did not constitute a material error of law. The reason is that, taking the evidence before the Tribunal at its highest in favour of the appellant, it was not capable of establishing that the children in this case were wholly or substantially in the daily care and control of their father. There is therefore no basis for the court to interfere with the determination of the Tribunal on that question.

12                        Gleeson CJ and McHugh J described the principle in these terms in Samad v District Court of New South Wales (2002) 209 CLR 140; [2002] HCA 24 at [44]:

[44] To vitiate the decision of an administrative tribunal an error must be material; it must affect the decision itself [R v Hull University Visitor; Ex parte Page [1993] AC 682 at 702 per Lord Browne-Wilkinson; cf the reference by Lord Denning MR in Pearlman v Harrow School [1979] QB 56 at 70 to "an error of law on which the decision of the case depends"]. To use the language of this Court in Craig [Craig v South Australia (1995) 184 CLR 163 at 177], and of s 69(3) of the Supreme Court Act, the decision must be based upon the error.

13                        As the Minister submitted, the same principle underlies the observation in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43; [2003] FCAFC 129 at [27] that:

The statement that a particular error is a 'jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 [Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made 'within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a 'jurisdictional error' and as such it cannot be a valid action or decision.

14                        In other words, to be a jurisdictional error the error must be material (in the relevant sense) to the decision.  Immaterial errors, by contrast, are errors within jurisdiction. 

15                        The difficulty confronting the appellants in the present case is that, even if the errors the appellants allege occurred, the evidence before the Tribunal taken at its highest was not capable of establishing that the first appellant met the statutory requirement upon which the appellants’ entitlement to visas depended.  The reason for this is that the appellants’ own evidence before the Tribunal was to the effect that the first appellant was not a shareholder of the company on which the appellants relied to satisfy cl 845.221 of Sch 2 to the Migration Regulations as the shares in that company were held by the second appellant.  From this it inevitably followed that, on the material available to the Tribunal, the first appellant did not satisfy the “ownership interest” requirement at the time of the decision on the visa applications as required by cl 845.221 (and, indeed, the Tribunal so found).  It follows that if the alleged errors had not been committed, only one result was possible on the material the appellants put before the Tribunal (namely, that they were not entitled to the visas for which they applied). 

16                        From these circumstances the conclusion dictated by legal principle is that the alleged errors were not material to the decision in the required sense.  Hence, the alleged errors are incapable of vitiating the decision and cannot amount to jurisdictional error.  The appeal itself (as opposed to any remittal of the matter to the Tribunal) is thus futile.

17                        The appellants sought to avoid this result by reference to the Tribunal’s capacity to make an inquiry that might have elicited from the appellants evidence about the existence of a trust under which the second appellant held shares in the relevant company on behalf of the first appellant.  I do not accept that this capacity converts an immaterial error into a material error.  The appellants do not suggest that the Tribunal had any obligation to make that inquiry during the hearing and failed to do so in breach thereof.  The appellants accept that they could have put before the Tribunal any material they saw fit about the first appellant’s “ownership interest” in the relevant company.  It is apparent that the first appellant’s “ownership interest” was in issue at all times.  In these circumstances the Tribunal’s capacity to make further inquiries is not relevant to the question of materiality.  It would be relevant to the utility of the making of orders in the appellant’s favour – but that question does not arise unless and until the appellants identify a material error.  On their own case, taken at its highest, the appellants have not done so.

18                        The appellants submitted that on this approach the materiality principle, if taken to its logical extreme, would mean that the Tribunal could make the only decision on the material before it yet provide no reasons in support.  Because the decision was the only one open on the material before it, the decision would not be vitiated despite the lack of any reasons in support.  One answer to this submission is that the example does not resemble the present case.  In the present case the Tribunal gave extensive reasons for its decision.  It made factual findings about the shareholdings of the first and second appellants at various times which the appellants accept lead inevitably to the view that, on the available material, the Tribunal could not have found that the statutory criteria were satisfied.  Another answer is that, without the Tribunal making any findings at all, it would be difficult (if not impossible) in most cases to determine whether the decision was the only one open on the material or not.  It is also possible that a failure to give any reasons at all for a may involve breach of an “imperative duty” (using the language in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [76]) and thus constitute a jurisdictional error.  Whether or not this is so would depend on the particular statutory provisions in issue. 

19                        Having accepted that the Tribunal could not have found the appellants satisfied the statutory criteria on the material available to it during the hearing, the appellants cannot identify any material error by the Tribunal.  Accordingly, the appeal must be dismissed on this basis.  Despite this conclusion I consider the alternative arguments below.

THE FEDERAL MAGISTRATE’S APPROACH

20                        As noted, the Federal Magistrate concluded that the Tribunal erred in respect of the characterisation of the “main business” but correctly determined that the first appellant had no “ownership interest” as required at the relevant time.  The Federal Magistrate considered the latter to constitute an independent basis sustaining the Tribunal’s decision with the consequence that the Tribunal’s error with respect to the former was “within jurisdiction”.  This is an example of the first aspect of the materiality principle (the decision being sustainable on an alternative ground) as described in Yates Property Corp Pty Ltd at 177.  Consistent with my reasoning above, if the Tribunal’s finding on the “ownership interest” issue was an independent ground sustaining the Tribunal’s decision then the Federal Magistrate was correct to dismiss the appeal.  The appellants claim that the finding about that issue was not independent of the errors the Federal Magistrate found.  The Minister supported the Federal Magistrate’s reasoning.  To resolve this dispute I need to explain the statutory scheme and the nature of the material before the Tribunal in greater detail than provided thus far.

21                        It is common ground that the visa applications depended on the first appellant satisfying cll 845.213 and 845.221 of Sch 2 to the Migration Regulations.  Those provisions are as follows:

845.21Criteria to be satisfied at time of application

845.213 The applicant:

(a)        has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and

(b)        continues to have an interest of that kind.

845.22Criteria to be satisfied at time of decision

845.221 The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.

22                        Under reg 1.03 of the Migration Regulations “ownership interest” has the meaning given to s 134(10) of the Migration Act.  Section 134(10) defines “ownership interest” as follows:

"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.

23                        "Main business" has the meaning set out in reg 1.11. which is in these terms:

(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 or de facto partner, 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.

24                        A “qualifying business” is defined in reg 1.03 as meaning:

…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.

25                        The material before the Tribunal was capable of establishing the following:

(1)                    The appellants applied for visas on 8 October 2004.

(2)                    The first appellant, as a sole trader, ran a business known as REI Construction since 27 March 2001.  This was a building and construction business.

(3)                    The first appellant was the 100% shareholder of a corporation incorporated on 13 September 2004 known as REI Construction Pty Ltd (REI).  REI was a building and construction business.

(4)                    Another corporation, Multi-Formwork and Hire Pty Ltd (Multi), was incorporated on 30 September 2005.  Multi is a building and construction business.

(5)                    The second appellant owns all the shares in Multi and the first appellant is its director.

(6)                    REI suffered financial difficulties due to non-payments in respect of a building project.  An external administrator was appointed to REI in November 2007.  REI went into liquidation in October 2008.

(7)                    Multi acquired REI’s stock and equipment. 

(8)                    Multi continues as a building and construction business.

(9)                    These arrangements were made because the first appellant received advice that REI could not continue to trade due to the insolvent trading prohibition.  Hence, REI was wound up and the appellant operated through Multi instead. 

26                        The Federal Magistrate found error in the Tribunal’s treatment of the “main business” in which the appellant claimed to have an “ownership interest”.  The Federal Magistrate found that the Tribunal did not ask itself whether, as the appellants claimed, the main business was the business carried on by REI and Multi in that the business in which those two entitles were involved was the same.  Instead the Tribunal incorrectly distinguished the decisions in Nassif v Minister for Immigration and Multicultural and Indigenous Affaird (2003) 129 FCR 448; [2003] FCA 481 and Liang v Minister for Immigration (2009) 157 FCR 184; [2009] FCA 189 and, in so doing, took into account irrelevant considerations in respect of the characterisation of the main business, being that: - (i) Multi did not exist when the visa applications were made (at [25]), (ii) the first appellant’s motivation in ceasing trading through REI and continuing trading through Multi (at [28]), (iii) the first appellant was not a shareholder in Multi (at [28]), and (iv) REI and Multi were separate legal entities (at [30]).  The Federal Magistrate concluded that the Tribunal had taken into account these considerations irrelevant to the question about the “main business” because it had conflated that issue with the “ownership interest” issue (at [28] and [30]). 

27                        Nassif and Liang do not discuss the concept of irrelevant considerations.  In Nassif Branson J found that the Tribunal had erred in its approach to the identification of the business because it treated that description as necessarily involving a single entity only.  While the applicant in that case had identified one business name in the application form the accompanying documents showed his involvement in numerous companies.  His submissions contended that the applicant’s business was transacted through at least four companies.  Branson J found that the Tribunal erred by failing to deal with the applicant’s case as put on the basis that a business may involve more than one legal entity.  In Liang Logan J held that a single legal entity may conduct more than one business.  Neither case turned on a conclusion that the Tribunal had taken into account irrelevant considerations. 

28                        The irrelevant considerations ground of judicial review is relatively confined.  The orthodox statement of principle derives from the judgment of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 at 39-41 to the effect that an irrelevant consideration is one that a statute forbids the decision-maker to take into account whether by express words or by implication from the “subject-matter, scope and purpose of the” legislation.  The appellant acknowledged that this ground of review did not sit comfortably with the decision-maker’s task under cll 845.213 and 845.221 of Sch 2 to the Migration Regulations.  The provisions do not vest discretion in the decision-maker.  They call for the application of statutory criteria.  For these reasons, I depart from the reasoning of the Federal Magistrate insofar as his Honour held certain matters to be irrelevant considerations.  I also do not accept that the Tribunal’s consideration of the differences between the present case and Nassif necessarily led it into error.  The Tribunal was correct to conclude that there were differences between the facts of the present case and Nassif.  It was entitled to note those differences as part of its reasoning process.

29                        I do not accept that any of the four factors which the Federal Magistrate described as irrelevant considerations (summarised at [23] above) were matters that the Tribunal was forbidden to take into account in applying the statutory criteria.  Nor do I accept that the mere taking into account of those matters necessarily led the Tribunal into error in its application of the statutory criteria.  The relevant question is whether the Tribunal applied the statutory criteria as required (and thus exercised its jurisdiction) or failed to do so (and thus constructively failed to exercise it jurisdiction).  Answering this question requires an analysis of the basis of the Tribunal’s decision. 

30                        The structure of the Tribunal’s reasons is difficult to follow on a first reading.  Nevertheless, it is clear that the Tribunal properly informed itself about the law by reference to Nassif and Liang in [42].  In so doing it accepted that a business is not a legal entity but, rather, is an enterprise or undertaking.  The Tribunal dealt with the ownership interest in [43].  It turned to the identification of “the business” in [44].  In the present case, unlike Nassif, the Tribunal (at [44]) dealt with the appellants’ case as put (namely, that Multi is the same operation and thus same business as REI).  The Tribunal accepted that the two businesses were very similar.  It did not accept, however, that they were the same business (at [45]).  The Tribunal did not do so because it inferred that there must have been a benefit to the first appellant in winding up REI and setting up Multi as a “new business” (that is, avoiding adverse personal consequences by reason of laws regulating corporations).  The Tribunal also considered it relevant that the first appellant had been the sole shareholder in REI but was not a shareholder in Multi (all of the shares in Multi being owned by the second appellant).  The Tribunal considered the different ownership arrangements inconsistent with the claim that REI and Multi were the same business.  In [46] the Tribunal, in effect, provides a summary of its earlier conclusions with respect to both the main business and the ownership interest issues. 

31                        I do not accept the appellants’ submission that the Tribunal failed to ask itself what the main business was.  The Tribunal may not have posed this question in terms but it determined the case as put by the appellant that REI and Multi were the same business and together constituted the main business.  The Tribunal rejected this submission.  In so doing it kept in mind that the mere fact that the two companies were separate legal entities could not be determinative of the task of characterisation of the business.  It undertook the task of characterisation by reference to factors which it was not prohibited by law from taking into account.  The weight it gave to the competing factors was a matter for the Tribunal.  The conclusion it reached – that the business of the two companies was very similar but not the same – was open to it on the material it had available.  The fact that others may take a different view of the facts is beside the point.  The task of characterisation is vested in the Tribunal.  Provided it performs it task in accordance with its statutory remit a court on review cannot interfere. 

32                        I thus do not agree with the Federal Magistrate that the Tribunal erred.  Contrary to [24] of the Federal Magistrate’s reasons, the Tribunal was entitled to distinguish Nassif and Liang on the grounds it used.  As the Federal Magistrate found in [25], the Tribunal dealt with the appellant’s case as put (see [44] of the Tribunal’s reasons which makes this clear).  I have already rejected the approach based on irrelevant considerations apparent in [28]-[31] of the Federal Magistrate’s reasons.  Insofar as those paragraphs raise other concerns about the Tribunal’s decision-making process I do not agree that ownership structure is necessarily irrelevant to the application of the main business criteria merely because the definition of that term requires an ownership interest at any time.  The reason for this is that the terms “a business” and “the business”, as they appear in the definition of “main business”, are not defined.  Identifying “the business” for the purpose of the definition of “main business” is left to the Tribunal.  Where an applicant claims a single “business” is transacted through multiple entities the Tribunal is entitled to consider the ownership structure of each entity at any time it thinks relevant in order to work out whether it accepts the applicant’s identification of “the business”.  Once it identifies “the business” the Tribunal, in deciding whether that business is a “main business” in relation to the applicant, is bound by the definition of “main business” and the question is then whether “the applicant has, or has had, an ownership interest in the business” as defined.  In other words, if the Tribunal required an ownership interest at a particular time when deciding if a business is a main business, the Tribunal would err.  But nothing in the statute prohibits the Tribunal from considering the ownership arrangements of any relevant entity at any time for the purpose of identifying “the business” forming a part of the definition of the “main business”. 

33                        In the present case, the Tribunal recognised that it had to identify “the business” before it could apply the definition of “main business”.  The Tribunal thus did not conflate the ownership interest and main business questions.  When it referred to the ownership structure of REI and Multi in [45] the Tribunal was doing so for the purpose of dealing with the appellants’ submission that the two carried out the same “business”.  As noted, it rejected the appellants’ case.  Having found that REI and Multi were not the same business and thus not “the business” for the purpose of applying the definition of “main business” the Tribunal was entitled in its summary concluding paragraph in [46] of its reasons to revisit the ownership interest question in the terms it did (that is, by reference to each of REI and Multi and not to them together). 

34                        Accordingly, I depart from the Federal Magistrate’s conclusion (at [30]) that the Tribunal erred in its treatment of the main business question.  That conclusion does not take into account the need for the Tribunal to identify “the business” to which the definition of “main business” must be applied.  Once that is taken into account the logic of the Tribunal’s reasons becomes apparent.  It also becomes apparent that all that is left in favour of the appellants is the recognition that, on the evidence, the Tribunal could have reached a different view about “the business”.  This is insufficient to found jurisdictional error.  A finding that the business of each REI and Multi was “very similar” does not mean that it was not reasonably open to the Tribunal to conclude that the business was not the same. 

35                        For these reasons I would uphold the contentions in paragraphs 1, 2 and 3 of the Minister’s notice of contention each of which takes issue with the Federal Magistrate’s findings in [30] of his Honour’s reasons supporting the conclusion of error by the Tribunal.

36                        It follows that the question of a separate and alternative ground supporting the Tribunal’s decision (as found by the Federal Magistrate in [31]) does not arise.  On my construction of the Tribunal’s reasoning process there was no error in its treatment of the “main business” question.  If I am incorrect then, in any event, the appellants have acknowledged that on the evidence the Tribunal had available the only finding open to it was that the first appellant did not have an ownership interest in REI or Multi at the time of decision.  While the language of [46] of the Tribunal’s reasons, read in isolation, might suggest separate consideration of REI and Multi, read in context, the Tribunal is doing nothing more than continuing to deal with the appellants’ case as put to it (and summarised in [44] of the Tribunal’s reasons).  In short, in [46], the Tribunal should be understood as effectively saying that the appellants claimed that REI and Multi were the same business.  The Tribunal disagreed.  Irrespective of this disagreement, the appellants had a problem on the ownership interest issue.  As to Multi, the first appellant had no ownership interest at any time and the second appellant no ownership interest at the time of the visa application (or 18 months before the application).  As to REI, the first and second appellant had no ownership interest at the time of decision.  Whatever way “the business” is identified the ownership interest requirement is not met.  When [46] of the Tribunal’s reasons is read in this way (as it should be having regard to the need to read such reasons fairly and in context) the Federal Magistrate was correct to conclude that the Tribunal’s decision was sustainable on an independent basis (at [31]) with the consequence that there was no jurisdictional error.

CONCLUSION

37                        I am satisfied that the appeal must be dismissed.  The appellants’ case is defeated by the fundamental proposition that any error by an administrative decision-maker cannot vitiate the decision unless the error was material to the decision in the sense that the decision must depend on the error.  An error is not material if, on the evidence available to the decision-maker, only one conclusion was open and the decision-maker reached that conclusion.  An error is also not material if the decision is sustainable on another ground unaffected by error.  In the present case the appellants cannot surmount either materiality requirement.  The Tribunal made the only decision open to it on the available evidence.  Even if it erred in respect of one issue relating to the main business requirement (which I do not consider it did) the Tribunal’s decision, as the Federal Magistrate found, was sustainable by reference to another issue unaffected by the alleged error (the ownership interest issue). 

Associate:

Dated:         18 November 2009