FEDERAL COURT OF AUSTRALIA

Jiang v Minister for Home Affairs [2019] FCA 91

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia. There are four appellants and they brought an application for judicial review in the Federal Circuit Court in relation to a decision of the Administrative Appeals Tribunal (the Tribunal) affirming decisions by a delegate not to grant the appellants Business Skills (Residence) (Class DF) visas (Business Skills visa). The appellants claimed in the Federal Circuit Court that the Tribunal had committed jurisdictional errors in the course of reaching its decision. This claim was rejected by the Federal Circuit Court which made an order that the appellants’ amended application for judicial review be dismissed (Jiang & Ors v Minister for Immigration & Anor [2018] FCCA 929). The appellants appeal to this Court against that order. The first appellant was the primary applicant for a Business Skills visa and the other three appellants who were members of her family were secondary appellants. I will refer to the first appellant as the appellant.

The Legislative Regime

2    In order to understand the issues, it is necessary at the outset to understand the relevant legislative regime.

3    In order to qualify for a Business Skills visa, an applicant needs to satisfy, at the time of the application, the following criterion set out in cl 892.211 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations):

892.211    (1)    The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

           (2)    …

4    The appellant’s case was that there was one main operating business in Australia and that was a business she conducted through Anqi Investment Pty Ltd (Anqi Investments). The main activities of the business were said to be “Machinery Import/Export and Wine Export”. Tribunal found that the appellant held two ordinary shares in Anqi Investments and that the issued share capital of the company was two ordinary shares. The Tribunal found, and there is no issue, that the appellant had a 100% ownership interest in the company and, therefore, satisfied that requirement in cl 892.211(1), regs 1.03 and 1.11(1)(a) of the Regulations, and s 134(10) of the Migration Act 1958 (Cth) (the Act).

5    The term “main business” is defined in reg 1.11(1) 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 or de facto partner, in the business is or was:

(i)    if the business is operated by a publicly listed company – at least 10% of the total value of the business; or

    (ii)    if:

(A)    the business is not operated by a publicly listed company; and

(B)    the annual turnover of the business is at least AUD400 000;

at least 30% of the total value of the business; or

    (iii)    if:

(A)    the business is not operated by a publicly listed company; and

(B)    the annual turnover of the business is less than AUD400 000;

at least 51% of the total value of the business; and

  (d)    the business is a qualifying business.

6    The term “qualifying business” used in reg 1.11(1)(d) is defined in reg 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.

7    The term “business” is not defined in the Act or Regulations.

8    The Tribunal was not satisfied that the appellant maintains, or had maintained, direct and continuous involvement in the management of the business conducted by Anqi Investments from day to day and in making decisions affecting the overall direction and performance of the business during the relevant period within reg 1.11(1)(b), or that the business was a qualifying business within reg 1.11(1)(d) during the relevant period.

9    The application was made on 24 September 2012 and the Tribunal found, and there is no dispute, that the relevant period is the period from 24 September 2010 to 23 September 2012.

The Ground of appeal

10    There is one ground of appeal and it is as follows:

The Federal Circuit Court erred by failing to find that the second respondent had misconstrued the requirements to be met by an applicant for a subclass 892 State/Territory Sponsored Business Owner under the definition of “main business” in reg. 1.11(1)(b) and (d) of the Migration Regulations 1994 (Cth).

Particulars

The Federal Circuit Court ought to have concluded that the second respondent had failed to appreciate that:

(a)    the activities of a person who claims to have a relevant interest in a “main business” may not necessarily be directed primarily to the immediate sales activity of the business; and

(b)    the second respondent had allowed itself to be diverted by an undue emphasis on the absence of actual sales by the first appellant’s business in certain periods, and failed to appreciate that other non-sales activity during these periods, including the exploration and development of possible business opportunities, will also amount to activities to be considered when assessing whether a business is a “main business”.

The Tribunal’s DECISION

11    In addressing reg 1.11(1)(b), the Tribunal noted that there were two requirements in the paragraph, being direct and continuous involvement in the management of the business from day to day, and direct and continuous involvement in making decisions affecting the overall direction and performance of the business. The Tribunal referred to a Department Guideline directed to the requirements in paragraph (b) and said the Guideline should not be elevated to a legislative requirement. The Tribunal then said (at [106]):

… The Tribunal accepts that there are a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance: Lobo v MIMA [2003] FCAFC 168 (French, Sackville, Hely JJ, 8 August 2003) at [63]. In assessing whether the applicant satisfies the requirements of r.1.11(1)(b), the Tribunal has taken into account this judgment which discusses an equivalent provision in relation to the former Subclass 845 visa. A person involved in the ‘management of the business’ does not necessarily have to manage the whole of the business. The Tribunal must have regard to all the circumstances and requirements of the individual business.

12    The Tribunal then addressed the facts and in that context reached the following conclusions.

13    First, the Tribunal addressed one of the points advanced by the appellant which was that with a business, research and development can take a substantial period of time. The Tribunal said that the difficulty with that submission is that at the beginning of the relevant period, that is 24 September 2010, the business of Anqi Investments was not a new one. The appellant became involved as the owner of the business on 28 July 2008 and the first transaction was in 2009.

14    Secondly, the Tribunal found that the appellant was outside of Australia for over five months during the first year of the relevant period and over eight months in total over the whole of the relevant period.

15    Thirdly, the Tribunal said that there was little evidence that the appellant was involved continuously in the management of the business from day to day during the first year of the relevant period and, further, the Tribunal said that there was little evidence that the appellant maintained direct and continuous involvement in the management of the business from day to day and (as per reg 1.11(1)(b)) in making decisions affecting the overall direction and performance of the business.

16    Fourthly, the Tribunal rejected evidence from the appellant’s accountants – AC Accounting and Taxation – that they looked after the business when the appellant was away, carrying out tasks such as liaising with suppliers, placing orders and coordinating shipments during the relevant two year period, and that the appellant gave instructions by emails and telephone calls on a daily basis. This evidence was contained in a letter from Ms Chen of AC Accounting and Taxation dated 12 January 2016 and put before the Tribunal.

17    Fifthly, the Tribunal accepted that the accountant’s office was the registered office of Anqi Investments and that the appellant made an appointment at that office if she had an important client to see. However, the Tribunal did not accept that the appellant had an office at her accountant’s office.

18    Sixthly, the Tribunal said that whilst there is, in the documents provided by the appellant, evidence of business activity and sales from 1 July 2011 to 30 June 2012 (except for the period from 1 January 2012 to 31 March 2012), there were no sales at all according to the Business Activity Statements (BAS) of the business from 1 July 2010 to 30 June 2011. Relating this to the relevant period (i.e., 24 September 2010 to 23 September 2012), there were no sales shown in the BAS for the period between 24 September 2010 and 30 June 2011. The Tribunal referred to evidence from the appellant that a bank deposit of $59,982.61 on 3 June 2011 related to a sale which took place in 2009 and said that, even if that was accepted, no sales took place between 24 September 2010 and 2 June 2011, and the proceeds of that sale, that is, the $59,982.61 did not appear in the BAS for the period 1 April 2011 to 30 June 2011, or indeed, any BAS relating to the relevant period.

19    The Tribunal referred to a letter put before it from Ms Chen of AC Accounting and Taxation dated 14 January 2016. That letter dealt with the preparation of Anqi Investments’ 2011 financial statements. Ms Chen stated that when the statements were prepared, export sales of $60,000 were identified from bank statements and source documents so it was recorded in the 2011 financial statements. Ms Chen said that the previous accountant “had lodged NIL for all business activity statements” before the handover was completed. She stated that the principal decided not to amend the BAS because the exports sales did not change the company’s GST position. Ms Chen stated that to “save shipping and logistic costs and to better comply with Chinese import requirements, the company always ships full container to China”. Ms Chen stated that in some BAS there are no sales. She stated that this is the nature of high value export trading and does not indicate nil business activity. Ms Chen stated that Anqi Investments reports to the Australian Taxation Office on a cash basis in order to comply with GST requirements.

20    The Tribunal considered the appellant’s evidence on the matters raised by Ms Chen in her letter dated 14 January 2016. The Tribunal said it was not satisfied that the appellant maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. The Tribunal did not accept that Ms Chen’s statement that there were no sales because Anqi Investments always shipped full containers to China to save shipping and logistic costs explained the nil sales in the first four BAS of the relevant two year period. The Tribunal pointed out that there were no sales of wine in 2011 according to the trading profit and loss statement, although according to that statement there were sales of machines in that period. The Tribunal said that it had concerns about the claim that there were sales of machines of $60,000 in the 2011 year. The Tribunal found that on the evidence there were no sales from 24 September 2010 to 2 June 2011.

21    The Tribunal also referred to various invoices relating to Malesco Pty Ltd (Malesco). Malesco is a wine broker. It is unnecessary for me to set out the details. The Tribunal said that even if it were to accept that Malesco exported wines on behalf of Anqi Investments in November 2011, this took place after the first year of the relevant two year period, and in the first year of the relevant two year period, the BAS indicated that there were no sales.

22    The Tribunal acknowledged that there were email communications between the appellant and Mr James Richard Batchen between May 2009 and April 2011. Mr Batchen is the managing director of D J Batchen Pty Ltd (D J Batchen). D J Batchen is a fabrication business. The Tribunal also acknowledged that there were email communications between Malesco and the appellant between May 2011 and August 2012. However, the Tribunal was not satisfied that the appellant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. The appellant was outside Australia for five months in the first year of the relevant two year period. There were no sales according to the first four BAS in the relevant two year period.

23    The Tribunal said that it accepted the appellant’s evidence that she was building up her company and she travelled between China and Australia to develop contacts and customers, and to increase her company’s business, and that during the nine months until 2010, she “shuttled” between factories in China and D J Batchen. The Tribunal said that it had regard to the evidence of Mr Batchen about the business relationship between the appellant and Anqi Investments. However, it said again that it was not satisfied that during the relevant two year period, the appellant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

24    The Tribunal then said that it also had concerns as to whether Anqi Investments was a qualifying business. It referred to the definition of “qualifying business” and said that whilst there was evidence that the appellant’s business achieved sales in three of the eight quarters in the relevant two year period, in five of the eight quarters the appellant’s business achieved no sales at all. The Tribunal said it was not satisfied that Anqi Investments was a qualifying business for the relevant two year period. It would seem that the reason the Tribunal reached this conclusion was because it was not satisfied that the appellant’s business was operated for the purpose of making a profit through the provision of goods, services, or goods and services to the public, during the relevant two year period of 24 September 2010 to 23 September 2012.

25    The Tribunal said that as the appellant did not satisfy regs 1.11(b) and (d), she did not satisfy the “main business” requirement in reg 1.11(1) for the period 24 September 2010 to 23 September 2012 at the time of the application and, therefore, she did not continue to satisfy this criterion at the time of decision. The Tribunal said that the appellant did not satisfy the requirements of cl 892.211 at the time of application, and cl 892.221 at the time of decision. The other appellants did not satisfy cl 892.321 because they were not members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 892 visa.

The Decision of the Federal Circuit Court

26    Before the Federal Circuit Court, the appellant submitted that the Tribunal erred in putting too much “focus” on sales rather than taking into account all the circumstances. It therefore misconstrued the definition of “main business” in reg 1.11(1) of the Regulations. The appellant referred to authorities dealing with the meaning of conducting a business and the emphasis in those authorities on considering all the circumstances of the case and that there can be a carrying on of a business in a small way.

27    The distinction that the appellant sought to draw was, on the one hand, a focus on sales and the actual sales being zero according to the BAS which was the approach the Tribunal took and, on the other, a consideration of all the circumstances “including exploration and development of possible business”.

28    The primary judge said the appellant accepted that the Tribunal had stated the test correctly in [106] of its reasons (see [11] above). The primary judge said that the Tribunal had not placed too much emphasis on the lack of sales in the first year, although that was obviously a relevant matter. It had taken into account all the circumstances, including the substantial periods of time spent overseas by the appellant.

29    The primary judge said that the Tribunal was entitled to make findings “in respect of the BAS” and the reference to there being no sales in the first year of the relevant two year period should not be taken to mean that it had not placed too much emphasis on this circumstance because it was clear that the Tribunal had taken into account the evidence advanced by the appellant from Ms Chen and Mr Batchen.

30    The primary judge concluded that the Tribunal had not committed a jurisdictional error.

The Appellant’s submissions

31    The appellant described the issue on the appeal as being whether the Federal Circuit Court erred in concluding that the Tribunal did not misconstrue the meaning of “main business” in reg 1.11(1) by failing to have regard to non-sales related activity of Anqi Investments. Putting this issue another way, it is whether the Tribunal erred (and the Federal Circuit Court failed to identify the error) in failing to have regard to activities of Anqi Investments which were not related to sales in its interpretation and application of the definition of main business in reg 1.11(1). Later in her submissions, the appellant referred to the non-sales related activity of Anqi Investments as “activities of Anqi Investments which did not directly lead to sales”.

32    The activities to which the appellant referred were as follows:

(1)    Numerous emails between the appellant and D J Batchen between May 2009 and August 2012;

(2)    Numerous emails between the appellant and Malesco between May 2009 and August 2012; and

(3)    The appellant was building up Anqi Investments and travelling between Australia and China to develop contacts with customers and to increase her company’s business.

33    With respect to (1), it is necessary to elaborate on the relationship between Anqi Investments and D J Batchen. As I have said, D J Batchen is a fabrication business that provides products for the mining and chemical industry and in support of the LPG industry. Among its activities, is the manufacturing of LPG dispensers.

34    Mr Batchen said that the appellant approached him in about May 2009 concerning the possibility of selling D J Batchen products in China. Mr Batchen said he was particularly interested in expanding into China, which he had found to be a difficult market to enter. There were some months of communication between D J Batchen and Anqi Investments. In July 2009, Anqi Investments purchased four LPG dispensers from D J Batchen. In January 2010, the appellant invited Mr Batchen to travel to China to conduct a training course for Chinese end users. Anqi Investments paid Mr Batchen’s travel and accommodation expenses and organised the lecture facilities, including the attendance of an interpreter. At the training course, representatives of a company called Yaohua (later called Huachuang), an LPG dispenser manufacturer, attended. Mr Batchen was subsequently in contact with Yaohua representatives. He entered into “3 part discussions” with Yaohua and Anqi Investments concerning the possibility of sourcing components to be manufactured in China according to D J Batchen’s specifications and/or to supply D J Batchen components to China.

35    In September 2010, D J Batchen shipped, via Anqi Investments, a fully functional set of hydraulics. In April 2011, Yaohua sent a fully functional frame and electronics set to D J Batchen for it to evaluate. Mr Batchen said that at all times he was in regular contact by telephone or email with the appellant as well as with Yaohua. He said that it was clearly understood by all parties that they were in a development stage and that the process of product development would take some years to complete. This was particularly so as they were dealing with LPG dispensing equipment and each of the various components were required to meet very exacting standards, both in Australia as well as in China. Equipment failure can result in very substantial damage and even loss of life. Mr Batchen said that it should also be noted that D J Batchen is one of the most respected manufacturers of LPG equipment in the world and that it would only use components which were of the utmost quality. Mr Batchen said that his company had been supplied with official Chinese LPG manufacturing standards.

36    Mr Batchen said that D J Batchen has used Anqi Investments to ship LPG nozzles into China on two occasions. The first occasion was in May 2011 and the goods were worth $16,200, and the second occasion was in December 2011 and the goods were worth $8,954. Mr Batchen said that this was all part of the development process. I should record at this point that the Tribunal did not accept that there was a sale in May 2011. The Tribunal’s finding was that the business made no sales between 24 September 2010 and 2 June 2011.

37    Mr Batchen said that as at October 2012 D J Batchen was continuing to work with Anqi Investments to develop relationships with Chinese end users and potential suppliers. The next set of sample product was in the process of being manufactured and was expected to be available for shipment in late 2012. Mr Batchen said that it was expected that once the parties had finally settled the technical issues of the product manufactured by Yaohua, they would enter into a commercial arrangement where they would buy from Anqi Investments components from China, that they would use to further develop their Australian and export markets. Mr Batchen said that he had continued to have regular contact with the appellant since their initial discussions in May 2009 and would continue to do so. Mr Batchen said that he needed to stress that the relationship between D J Batchen and Anqi Investments was not a simple one of vendor and purchaser. It was a long term “cooperation of companies” seeking to develop sophisticated equipment. Once developed, it would provide very substantial returns for D J Batchen as well as Anqi Investments. There are a number of emails and other documents passing between D J Batchen and the appellant between May 2009 and August 2010 (outside the relevant two year period), and between October and December 2010, January and March 2011, and April and May 2011. These are the email communications between D J Batchen and the appellant between May 2009 and April 2011 which are referred to in [126] of the Tribunal’s reasons. I will return to this paragraph.

38    With respect to (2), it is necessary to elaborate on the relationship between Anqi Investments and Malesco. The appellant’s legal representative before the Tribunal submitted that the documents before the Tribunal indicated that initial contact between Anqi Investments and the supplier of wine, Malesco, took place in early May 2011. He went on to say the following:

The correspondence clearly establishes that Ms Jiang was actively involved in the business of sourcing, purchasing and exporting wine for that period. The correspondence does not reflect the contact that Ms Jiang had with prospective purchasers of the wine during the period prior to May 2011 when Ms Jiang was in the process of ascertaining whether or not a market existed for the wine.

39    The appellant submitted that there were some 471 pages of emails and documentation relating to business dealings between Anqi Investments and Malesco from 19 May 2011 to 12 January 2013.

40    The appellant asserted in a letter to the Department dated 17 December 2012 that what the correspondence did not reflect was the contact that the appellant had with respect to the purchases of wine in China during the period prior to May 2011 when she was in the process of ascertaining whether or not a market existed for that wine.

41    In the appellant’s submission to the Tribunal dated 19 January 2016, the appellant submitted that she made all of Anqi Investments’ decisions, and was the only person operating Anqi Investments. She was assisted when abroad by her accountant as described in the accountant’s letter which was handed up at the hearing.

42    The appellant submitted that the Tribunal accepted the appellant’s evidence that she was building up her company and travelled between Australia and China to develop contacts and customers, and to increase her company’s business. Furthermore, the Tribunal accepted that during the nine months until 2010, she “shuttled” between factories in China and D J Batchen.

43    The appellant submitted that the Tribunal’s decision was “dominated” by reference to the absence of sales during various quarters as evidenced in the BAS and that its reasoning suggests that the Tribunal did not consider that “work” with D J Batchen and Malesco amounted to business activity. The appellant referred to two leading authorities on the meaning of business, being Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 (Hope) and Puzey v Commissioner of Taxation [2003] FCAFC 197; (2003) 131 FCR 244 (Puzey).

The Respondent’s submissions

44    The respondent submitted that the issue on the appeal was whether the Tribunal had erred in the exercise of its jurisdiction by misconstruing the meaning of “main business” in reg 1.11(1) of the Regulations by failing to have regard to the non-sales related activity of the business owned by the appellant, and that the Federal Circuit Court had erred in failing to identify such error.

45    The respondent referred to the appellant’s absence outside of Australia for a total of over eight months during the relevant two year period, including over five months during the first year of the relevant period. The appellant’s absences were as follows:

(1)    3 December 2010 to 14 February 2011 (2 months, 11 days);

(2)    4 April 2011 to 7 May 2011 (1 month, 3 days);

(3)    30 June 2011 to 31 July 2011 (1 month, 1 day);

(4)    21 August 2011 to 18 September 2011 (28 days);

(5)    15 December 2011 to 29 January 2012 (1 month, 14 days);

(6)    4 April 2012 to 27 April 2012 (23 days); and

(7)    28 June 2012 to 20 July 2012 (22 days).

46    The respondent referred to the fact that no documentary evidence was provided to support the statement from the appellant’s accountant that the appellant had given instructions on a daily basis. This was in stark contrast with the email evidence of her communications with Malesco and Mr Batchen. The respondent referred to the fact that there was no evidence of sales from 1 July 2010 to 30 June 2011, and the fact that the Tribunal was not satisfied that the appellant’s explanation as to significant omissions of information which should have appeared in the BAS and trading profit and loss statements. The respondent referred to the fact that the Tribunal said it had concerns about documents provided by the appellant, including an invoice and bill of lading (at [124]). The respondent referred to the fact that there was limited evidence of communications between the appellant and her business contacts. The oral evidence given by one of her business contacts was insufficient to satisfy the Tribunal that the appellant had maintained direct and continuous involvement in the management of the business from day to day (at [126]–[127]).

47    The respondent referred to the further finding of the Tribunal that the appellant’s business did not meet the definition of a qualifying business.

48    The respondent submitted that there was nothing in the Tribunal’s reasoning which indicated that it misunderstood its task. The Tribunal considered the appellant’s claim that she was “building up her business”, but did not accept that she maintained continuous involvement in the management of the business. The respondent submitted that this lack of satisfaction was clearly open on the evidence and that the evidence, such as it was, amounted to communications with two persons on limited topics in a small period of time. That was in a context in which the business was not new and the appellant had been involved in the business since 2008. The respondent referred to the fact that the Tribunal had correctly stated the relevant law in [106] of its reasons and that the appellant did not suggest otherwise. The respondent submitted that the Tribunal did not fail to appreciate that the appellant could relevantly maintain her involvement in the “main business” without her activities being directed to immediate sales activities; did not fail to appreciate that it should consider non-sales activities, including such activities as exploration and development of possible business opportunities; or did not allow itself to be “diverted” by an undue emphasis on the absence of actual sales by the appellant’s business which the respondent submitted must simply be a complaint about the weight given to certain evidence. The respondent submitted that the Tribunal’s determination that there was not a qualifying business was open on the evidence and no error has been demonstrated by the appellant.

Analysis

49    The business which the appellant claimed she was carrying on through Anqi Investments was the buying and selling of goods. In relation to D J Batchen, the business was the buying and selling of machinery for export to China, or import into Australia through D J Batchen, or possibly some form of joint venture with D J Batchen. In relation to Malesco, the business was the buying of wine in Australia from Malesco and then selling the wine to purchasers in China with the wine then being exported to China through Malesco.

50    The concept of carrying on a business has been considered in a number of cases, including in the decision of the High Court in Hope and the decision of the Full Court of this Court in Puzey.

51    In Puzey, Hill and Carr JJ (with whom French J (as his Honour then was) agreed) said (at [46]–[48]):

The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances. There are some relevant propositions which can, however, be stated. First, as was said by Barwick CJ, in Fairway Estates Pty Ltd v Federal Commissioner of Taxation (Cth) (1970) 123 CLR 153 and it is self-evident, every business must have a first transaction. And there may be a business, even if that business is small in scope: cf Thomas v Federal Commissioner of Taxation (Cth) (1972) 46 ALJR 397 at 401 with Hope v Bathurst City Council (1980) 144 CLR 1 at 10. A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business. So a person may appoint another to take the steps which constitute the business activity: Ferguson v Federal Commissioner of Taxation (Cth) (1979) 26 ALR 307 at 319 and, at least if the facts in Commissioner of Taxation v Lau at 218 involved a business, that case is another example.

It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have “something of a permanent character”; Hope per Mason J at 8. What is required is that activities be engaged upon “on a continuous and repetitive basis”; Hope at 9. However, perhaps not too much attention should be given to the concept of repetition where the activity is one, such as plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy.

In deciding whether or not a business is carried on, courts have pointed to what have been called in the United Kingdom the “badges of trade,” indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non-profit company may still carry on a business), acting in a business-like way, (although many businesses may be found which operate in a non business-like way), the keeping of books of account and records (although the fact that there are none will not necessitate the conclusion that a business is not carried on), and repetition (although a fixed term project may still be a business).

A number of points are made in this passage. First, a business may be carried on even though it is small in scope or, as the Court in Hope said (at 10 per Mason J (as his Honour then was)) a person may carry on a business though in a small way. Secondly, carrying on a business will generally involve activities carried on on a continuous and repetitive basis, although obviously there will be a first act. Thirdly, in considering whether a business is being carried on, all the circumstances must be considered. In the case of a person said to be carrying on the business of buying and selling goods, the regular sale of goods, or the absence of sales, may be significant, perhaps highly significant, but the absence of regular sales is not necessarily decisive. As Hill and Carr JJ said in Puzey (at [47]), business does not mean being busy and (at [48]), it is the profit motive rather than the actuality of profit which is significant.

52    In this case, the Tribunal addressed the issue through the requirements of regs 1.11(1)(b) and (d). In addressing reg 1.11(1)(b), the Tribunal seems to have assumed that there was a business, although not necessarily for the whole of the relevant period. The Tribunal did not err in proceeding in that way. The Tribunal was required to address reg 1.11(1)(b) and it did so.

53    In [106] of its reasons, the Tribunal referred to the decision of the Full Court of this Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 200 ALR 359 (Lobo) in which the Full Court said (at [63]):

It was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclass 845 visa set out in cl 845.216 of the Second Schedule to the Migration Regulations. The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business ‘… maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses’. This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance.

54    Before the Federal Circuit Court, counsel for the appellant accepted that the Tribunal had identified the correct test in [106] of its reasons in identifying Lobo and directing itself that it must have regard to all the circumstances and requirements of the individual business. In a case where the appellant’s argument is that the Tribunal misconstrued the Regulations, this means that the appellant must establish that, despite stating the test correctly, the Tribunal then misapplied it to the facts. The conclusion that the appellant’s complaint is in reality about the merits of the decision is supported by the fact that the appellant submitted that the Tribunal over-emphasised, or unduly focused, on the absence of sales which suggests a complaint about the weight which was placed on an undoubtedly relevant factor.

55    The Tribunal referred to and took into account the matters the appellant identified as indicating it misconstrued the Regulations: the correspondence during the non-sales period between the appellant and D J Batchen and, to a lesser extent (in terms of the non-sales period), between the appellant and Malesco; and the reason for some of the appellant’s travel to China. I should say as to the last matter it would appear that the evidence before the Tribunal did not permit the Tribunal to make precise findings about the matter.

56    As I understood the argument, the appellant submits that the Tribunal’s failure to put more weight on these matters, or even decisive weight, indicates that it misconstrued the Regulations and, in particular, what constituted business activities.

57    I do not accept this argument. It does not recognise the particular issue the Tribunal was required to address which is whether the appellant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. I accept that to some extent this requirement may take its colour from the nature of the business, but the definition proceeds on the basis that there is a business which requires management and that the appellant is directly and continuously involved in the management of the business. The appellant was absent from Australia for five months of the first year of the relevant period. The business is to be a business carried out in Australia. Although it may be assumed that that does not necessarily mean that the appellant need be in Australia, the Tribunal rejected the accountant’s evidence that when the appellant was overseas, she gave instructions “by emails and telephone calls on a daily basis”. The Tribunal was entitled to reach that conclusion. The absence of any documentary evidence of communications between the appellant and the accountants, and any documentary evidence of the accountant’s “liaising with suppliers, placing orders and co-ordinating shipments during the relevant 2 year period” was potent support for the Tribunal’s finding.

58    In my opinion, the Tribunal did not misconstrue the requirements of reg 1.11(1)(b). Nor did the Tribunal commit a jurisdictional error in applying the Regulation to the facts.

59    Strictly, I do not need to address the other basis for the Tribunal’s decision, being that the business did not satisfy the definition of “qualifying business”. The Tribunal based its conclusion on the absence of sales in five out of the eight quarters. I consider that that conclusion was reasonably open to the Tribunal. It is correct to proceed on the basis that the definition, in referring to an enterprise that is operated for the purpose of making profit through the provision of goods (emphasis added) and excluding passive investment, is referring to an active business of providing goods which it was open to the Tribunal to conclude that this business was not throughout the relevant period.

Conclusion

60    The appeal is dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    11 February 2019

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