FEDERAL COURT OF AUSTRALIA

Weng v Minister for Immigration and Citizenship [2010] FCA 1310

THE COURT ORDERS THAT:

1.                  The hearing of the appeal on Thursday 25 November 2010 be vacated.

2.                  The appeal be listed for hearing by video-link at 9.00 am WST (12 noon AEST) on Wednesday 2 March 2011.

3.                  The appellant is to pay the first respondent’s costs thrown away by reason of the vacation of the appeal hearing date, including the costs of this directions hearing.

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

INTRODUCTION

1                     The appeal in this matter was listed for hearing before me at 10.15 am on 25 November 2010.  For reasons set out in an affidavit sworn by the solicitors for the appellant, the appellant seeks orders that the hearing date be vacated. 

2                     An urgent directions hearing was convened to consider that motion.  The motion was opposed by the first respondent (the Minister). 

GROUNDS

3                     The affidavit filed in support of the motion confirms the following facts.  The appellant’s solicitors did not act for the appellant before the Administrative Appeals Tribunal (the Tribunal) in the first instance, nor in the appeal before the Federal Magistrates Court in respect of which this appeal is pursued.  The solicitor for the appellant was engaged shortly prior to expiry of the time within which notice of appeal was to be filed and served.  Steps were taken to brief senior counsel, Mr Robert Beech-Jones SC who received the brief electronically and provided a prompt response despite being in London at the time of being instructed.  The notice of appeal was filed on the day of receipt of the advice.

4                     On 18 October 2010, the appellant’s solicitor received advice from the Registry confirming that the matter had been scheduled for hearing on 25 November 2010.  The solicitor advised senior and junior counsel of that date and senior counsel indicated that he was unavailable on that day.  The solicitor indicated he would make arrangements to approach the respondents’ solicitors and the Court with a view to seeking a different date. 

5                     Due to personal and health difficulties, (which are explained in the affidavit but do not need further publication), the solicitor overlooked the intended approach to the respondents and to the Court concerning the hearing date.

6                     It was only on further prompting from the Court that he was reminded of the date and pursued the matter with the respondents’ solicitors but was informed that the respondents would not agree to the date being vacated. 

GENERAL HISTORY OF THE MATTER

7                     The appellant, a Chinese citizen, was granted a Business Skills Subclass 132 visa in October 2005.  On 4 June 2009, the Minister cancelled his visa.  The appellant applied to the Tribunal for a review of that decision. 

8                     The appellant is a director of South East International Investment Pty Ltd (SII).  That company was registered in January 2007 for the purpose of property development in Canberra.  The appellant holds a 40% share in the company, with his wife and son holding a 30% share each. 

9                     When his visa was cancelled in 2009 pursuant to s 134(1) of the Migration Act 1958 (Cth) (the Act), the Minister contended that the appellant had not obtained a substantial ownership in an eligible business, had not made a genuine effort to obtain such interest and had not made a genuine effort to actively participate as required in the management of a business.

10                  On review in the Tribunal, the Tribunal held that the appellant’s interest in SII was a substantial interest in the company; that the appellant’s company lacks sufficient ‘badges of trade’ as an indicia of business activity; and that even if SII was a business, it was not an eligible business.  The Tribunal accepted that the appellant was involved in the day to day management of SII but was not satisfied that he had made a genuine effort to obtain a substantial ownership interest in an eligible business such that his visa could not be cancelled. 

11                  Before the Federal Magistrate the appellant then raised 10 grounds of appeal.  The learned Magistrate rejected all grounds.

12                  Before this Court, broadly speaking, the grounds of appeal are that:

1.         [His Honour] erred in failing to find that the [Tribunal] committed a jurisdictional error in finding that [SII] was not engaged in a ‘business’ within the meaning of the definition of ‘eligible business’ in s.134(10) of [the Act] because it was engaged in activity consistent with it being a vehicle for private investment by Mr Weng.

2.         [His Honour] erred in failing to:

(a)        address and determine the contention that the [Tribunal] committed jurisdictional error in construing sub-section (b) of the definition of “eligible business” in s. 134(10) of [the Act] as being only referable to labour that was directly employed by the “business” in question;

(b)        find that the [Tribunal] committed jurisdictional error in construing sub-section (b) of the definition of eligible business in s.134(10) of [the Act] as being only referable to labour that was directly employed by the “business” in question:

(c)        further, and in the alternative, find that the [Tribunal] committed a jurisdictional error in construing sub-section (b) of the definition of “eligible business” in s.134(10) of [the Act] or in applying it to the facts as found in so far as it found that the business SII was engaged in was not an “eligible business” because the employment effects of its property investment activities were no different to any other property development including private property development. 

3.         [His Honour] erred in failing to find that the [Tribunal] committed a jurisdictional error in failing to consider whether the efforts made by the appellant in relation to the property development activities of SII satisfied sub-section 134(2)(a) of the Act. 

4.         [His Honour] erred in failing to find that the [Tribunal] committed a jurisdictional error in failing to consider whether the efforts made by the appellant in relation to the property development activities of SII warranted the exercise of the discretion conferred by sub-section 134(1) of [the Act] in the appellant’s favour. 

13                  I do not propose saying a great deal about it at this stage but I note the unopposed submission for the appellant that the appeal may involve a complex area of law surrounding the cancellation of a business visa under s 134 of the Act.  The view of the appellant’s solicitors is that the complexity of the matter readily justifies the assistance of senior counsel, assisted by experienced junior counsel.  As Mr Beech-Jones SC has been briefed in the matter from the start of the appeal, he is familiar with the facts and the law.  He would be likely, in the view of the appellant’s solicitor, to be of great assistance to the Court. 

CONSIDERATION

14                  I took into account those matters and the length of time that the appellant has been in the country.  The Minister accepts that, aside from the general desirability of appeals being pursued promptly and aside from the costs of preparation to date for the appeal, there is no specific prejudice from the point of view of the Minister. 

15                  In those circumstances, I concluded that it was desirable to vacate the hearing date on the basis that the matter could be re-listed at the earliest possible date for the Court and counsel.  The appeal is now listed for hearing at 9.00 am (West Australian time) on 2 March 2011 to be heard by video-link between Perth and Sydney.  All counsel are available on that date.  If for any reason it is desirable that another judge hear the matter, then that time and date can be adjusted on a similar basis. 

16                  As the solicitor for the appellant freely accepts, the circumstances have arisen as a result of his own difficulties.  There is no reason, therefore, as counsel for the appellant accepted, that the Minister’s costs thrown away and costs of the directions hearing should not be met by the appellant in any event. 

17                  The following orders were made:

1.                  The hearing of the appeal on Thursday 25 November 2010 be vacated.

2.                  The appeal be listed for hearing by video-link at 9.00 am WST (12 noon AEST) on Wednesday 2 March 2011.

3.                  The appellant is to pay the first respondent’s costs thrown away by reason of the vacation of the appeal hearing date, including the costs of this directions hearing.

Associate: 

Dated:         25 November 2010