Federal Court of Australia

Sanjeevaraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1369

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the draft amended notice of appeal in the form annexed to the appellants’ submissions filed on 1 September 2022 is refused.

2.    The appeal is dismissed.

3.    The appellants are to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit and Family Court of Australia on 18 February 2022 dismissing an application for judicial review of a decision of the second respondent (Tribunal): Sanjeevaraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 99. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellants a Business Skills (Residence) (Class DF) Subclass 890 visa (Business Skills visa).

2    The first and fourth appellants are married and the second and third appellants are their children. I will refer to the first and fourth appellants as the wife and husband respectively. The wife was the primary applicant for the Business Skills visa.

background

3    On 30 January 2015 the appellants applied for the Business Skills visa by lodging, among other things, a Form 47BU and a Form 1217.

4    The Form 47BU noted that the application was made as a “Business Owner (residence)” and nominated the wife as the main applicant.

5    The Form 1217 nominated as main business 1 and 2 respectively Sri Radha Ambika Pty Ltd and SAAS Sydney Pty Limited and provided the following details about those businesses:

(1)    in relation to Sri Radha that:

(a)    it was a proprietary company;

(b)    the wife first became involved in the business on 11 April 2013;

(c)    the wife had a 30% interest in the years 2013 and 2014;

(d)    the wife was the managing partner of the business; and

(e)    its “major activity” was as an “Indian restaurant with three function rooms”;

(2)    for SAAS that:

(a)    it was a partnership;

(b)    the wife first became involved in the business on 23 September 2010;

(c)    the wife had a 50% interest in the years 2010 and 2011;

(d)    the wife was a “business partner”; and

(e)    the “major activity” of that business was “import and export”.

6    Although nothing ultimately turns on it, it is apparent that SAAS is a proprietary company which was registered on 23 September 2010.

7    On 8 October 2015 a delegate of the Minister refused the appellants’ application for a Business Skills visa because they did not meet the requirements of the Migration Regulations 1994 (Cth). More particularly, the delegate found that the wife had failed to satisfy the requirement that she had an ownership interest in a main business as required by cl 890.211(1) of Sch 2 to the Regulations and reg 1.03 and reg 1.11(1) of the Regulations throughout the two years immediately prior to 30 January 2015.

8    On 29 October 2015 the appellants applied to the Tribunal for review of the delegate’s decision.

9    On 26 October 2017 the Tribunal refused to grant the appellants the Business Skills visa.

legislative framework

10    Before proceeding further it is convenient to set out the relevant legislative framework which applies to the grant of a Business Skills visa.

11    Section 45 of the Migration Act 1958 (Cth) provides that, subject to that Act and the Regulations, “a non-citizen who wants a visa must apply for a visa of a particular class”.

12    Regulation 2.07 relevantly provides:

2.07 Application for visa—general

(1)    For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:

(a)    the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and

…

13    As set out above, the wife, as primary applicant, applied for a Business Skills visa as a “Business Owner”. That is, she applied for a visa in class DF, subclass 890.

14    The Note to Sch 1 to the Regulations titled “Classes of visa” provided that the schedule “sets out the specific ways in which a non-citizen applies for a visa of a particular class” and that “an application that is not made as set out in [Sch 1] is not valid and will not be considered”.

15    Clause 1104B of Sch 1 concerns “Business Skills (Residence) (Class DF)” visas and relevantly provides:

(1)    Forms:

(a)    For applicant seeking to satisfy the primary criteria for the grant of a Subclass 890 (Business Owner) visa: 47BU and 1217

…

16    Schedule 2 to the Regulations is titled “Provisions with respect to the grant of Subclasses of visas”. It includes the criteria for the grant of a subclass 890 visa being a Business Skills (Residence) (Class DF) visa for a business owner. That was the class of visa relevant to the application made by the appellants. In that regard, Sch 2 to the Regulations provided, among other things, that the primary criteria to be satisfied by the visa applicant at the time of the application and at the time of the decision were as follows:

Subclass 890—Business Owner

…

890.2—Primary criteria

Note:    The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

890.21—Criteria to be satisfied at time of application

890.211

(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)    For each business to which subclause (1) applies:

(a)    an Australian Business Number has been obtained; and

(b)    all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

890.212

The assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:

(a)    have a net value of at least AUD100 000; and

(b)    had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and

(c)    have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

890.213

In the 12 months immediately before the application is made, the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD300 000.

890.214

In the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

(a)    provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 2 full-time employees over that period of 12 months; and

(b)    provided those hours of employment to an employee, or employees, who:

(i)    were not the applicant or a member of the family unit of the applicant; and

(ii)    were Australian citizens, Australian permanent residents or New Zealand passport holders.

890.215

The net value of the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, is, and has been throughout the 12 months immediately before the application is made, at least AUD250 000.

890.216

Neither the applicant nor his or her spouse or de facto partner (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.

890.217

The applicant has been in Australia as the holder of 1 of the visas mentioned in paragraph 1104B(3)(d) of Schedule 1 for a total of at least 1 year in the 2 years immediately before the application is made.

890.22—Criteria to be satisfied at time of decision

890.221

The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.

890.222

The applicant:

(a)    satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4010, 4020 and 4021; and

(b)    if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

890.223

(1)    Each member of the family unit of the applicant who is an applicant for a Subclass 890 visa is a person who:

(a)    satisfies public interest criteria 4001, 4002, 4003, 4004, 4009, 4010 and 4020; and

(b)    if the person had turned 18 at the time of application—satisfies public interest criterion 4019.

(2)    Each member of the family unit of the applicant who is not an applicant for a Subclass 890 visa satisfies public interest criteria 4001, 4002, 4003, 4004 and 4020.

(3)    Each member of the family unit of the applicant who, at the time of the applicant’s application, was not the holder of a visa of a subclass included in Business Skills (Provisional) (Class UR) satisfies public interest criterion 4005.

(4)    Each member of the family unit of the applicant who, at the time of the applicant’s application, was the holder of visa of a subclass included in Business Skills (Provisional) (Class UR) satisfies public interest criterion 4007.

890.224

If a person:

(a)    is a member of the family unit of the applicant; and

(b)    has not turned 18; and

(c)    made a combined application with the applicant;

public interest criteria 4015 and 4016 are satisfied in relation to the person.

17    The term “main business” is defined in reg 1.11 of the Regulations which at the relevant time provided:

(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.

(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.

18    The term “qualifying business” 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.

19    Finally, reg 1.03 also provides that the term “ownership interest” has the meaning given to it in s 134(10) of the Migration Act which provides that:

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.

the tribunal’s decision

20    The Tribunal noted that at the hearing it had pointed out to the appellants that the application for the Business Skills visa was made on 30 January 2015 and that the primary applicant for the visa, the wife, had to establish that between 30 January 2013 and 30 January 2015 she had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia, being the two years immediately before the application was made. The Tribunal also pointed out that it had to be satisfied that the wife “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”: at [23] of the Tribunal’s decision.

21    At [24] of its decision the Tribunal noted that:

… the evidence before it indicated that the [wife] had only acquired 30% ownership in [Sri Radha] in August 2013 which was outside the requisite 2 year period. The [wife] conceded this. The [wife] advised that she was relying on the second main business [SAAS].

22    The Tribunal then recorded the evidence before it in relation to SAAS including the responses given by the wife and the husband in answer to the questions posed during the course of the hearing, which focused on the business operations of SAAS and the wife’s involvement in it, and a post hearing submission provided by the appellants. At [31]-[32] the Tribunal said:

31    The Tribunal asked the [wife] to describe the operation of the business between 2010 and 2015 and she advised that progress was not good during the initial years after the business was established. The Tribunal asked the [wife] whether the business was making a loss during that period and the [wife] stated that the Tribunal would need to ask her husband. She advised that she was not sure about this.

32    The Tribunal noted that the [wife’s] responses strongly suggested that she had not been actively involved in the running of the business. The Tribunal asked the [wife] whether in the initial years of the establishment of the business, the business was making a profit or a loss and the [wife] advised it was making a loss. The [wife] stated that this started to turn around in about 2014.

23    Commencing at [41] of its decision, the Tribunal set out its conclusions. It noted that overall it found the wife’s evidence about her involvement in SAAS to be unpersuasive and “not reflective of a person who has been maintaining direct and continuous involvement in management of the business from day to day and in making decision affecting the overall direction and performance of the business”. At [42] it said:

The Tribunal accepts the business [SAAS] is involved in the export and import of products related to petroleum, marine, port, workshop machinery, off-road tyres and laboratory medical equipment and has a primary contract with the Sri Lankan Ports Authority. The evidence before the Tribunal indicates that the applicant was not cognisant of the main operating functions of the business given her claim to be actively involved in the day-to-day management of the business and to regularly attending management meetings. The [wife] displayed a complete lack of knowledge of tax related matters pertaining to the business and business turnover in any detail. The Tribunal finds that from the time that the [wife] acquired an ownership interest in the business it would be reasonable to expect that the [wife] would be familiar with (sic) the both the operational and financial aspects of the business. The Tribunal does not accept that the [wife] 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. The Tribunal finds that the [wife's] involvement in the business is minimal and that the business has largely been overseen and run by her husband. The Tribunal is not satisfied that the [wife's] involvement in the business has been direct and continuous and that it is not from day to day as required.

24    The Tribunal was not satisfied that, at the time of the application or at the time of the decision, the wife 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 as required by reg 1.11(1)(b) and thus found that she did not meet that regulation and did not satisfy the main business requirement set out in reg 1.11 for the period 30 January 2013 to 30 January 2015 at the time of the application or at the time of the decision.

25    The Tribunal thus concluded that the wife “did not have, and did not continue to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately preceding the … application” and that therefore she did not meet cl 890.211 of Sch 2 to the Regulations at the time of the application. The Tribunal was also not satisfied that the wife continued to have an ownership interest in one or more actively operating main businesses in Australia at the time of its decision and thus that she did not continue to satisfy cl 890.211. As a result, she failed to meet the requirements of cl 890.221 at the time of the Tribunal’s decision.

the Federal circuit and family court’s decision

26    The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia.

27    The appellants were not legally represented in that court. In their application for review filed on 24 November 2017 they raised four grounds of review as follows:

Ground 1

The Administrative Appeals Tribunal drew the wrong conclusion that I have not been operating the business for a period of two years.

Particulars

I have had ownership of [SAAS] for since 2010 and can provide proof of this.

Ground 2

The Administrative Appeals Tribunal made an error not to consider [SAAS].

Particulars

I have been actively involved and had a 50% interest in [SAAS] since 2010. I explained to the delegate of the Administrative Appeals Tribunal that there was a period that the ABN of the business was de-registered because it was not renewed.

The ABN was registered again after we realised that it was de-registered. Although this happened the business was actively operating since 2010 and is still operational. I can provide proof that the business was and still is operational.

Ground 3

The Administrative Appeals Tribunal made an error by determining that I did not had an ownership interest in [SAAS] Ltd for two years immediately before my application was lodged.

Particulars

My husband and I have been actively involved with [SAAS] since 2010 and both of us has a 50% interest in the business. I can provide extracts from ASIC to proof that the business was actively operating since 2010 and that my husband and I are equal share holders in the company.

Ground 4

The delegate of the Administrative Appeals Tribunal made an error by determining that I don't know anything about the operation of [SAAS].

Particulars

The delegate of the Administrative Appeals Tribunal questioned me about various aspects of the business. I tried to explain to him that my husband was responsible for the importation side of the business and that I was responsible for the administrative side of the business. Because I could not explain the parts that we import for the ports in Sri Lanka the delegate of the Administrative Appeals Tribunal wrongfully came to the conclusion that I was not actively involved in the daily operation of the business.

28    Given that the proposed grounds of appeal bear no resemblance to the grounds raised before the primary judge it is not necessary for me to set out his Honour’s consideration of the grounds relied on below save to note that his Honour considered each of the grounds and concluded that the appellants had failed to establish jurisdictional error on the part of the Tribunal. The primary judge dismissed the application and ordered the wife and husband to pay the Minister’s costs in a fixed amount.

the appeal

29    On 11 March 2022 the appellants filed a notice of appeal in this Court in which they sought to rely on a new ground of appeal which was not raised before the primary judge. On 1 September 2022 the appellants gave notice of their intention to rely on an amended notice of appeal which raises two proposed grounds of appeal as follows (as written):

Ground Five (new ground)

1.    (a) The Tribunal fell into jurisdictional error by misconstruing, misdirecting, and misapplying the cl 890.211 of the schedule 2, and regulation 1.11(1)(b) to the migration Regulation 1994.

(b) The Tribunal fell into jurisdictional error in applying policy to the visa application which was narrower in terms than the relevant criterion which it should have applied.

Particulars:

The headings of the Subclass 890.2 states that the primary criteria must be satisfied by at least 1 member of a family unit.

Clause 890.211 states that 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.

Ownership interest is stated in regulation 1.03. The applicant and her partner claimed that they have had equal shares in the businesses and both are directors of the business.

Regulation 1.11(1)(b) states that the applicant maintains, or has 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.

Both applicants stated that they were involving the business directly, as her involvement in the administrative side of the business and her husband involved supplying side of the business. The applicant has maintained that they were involved with the operation of the business since 2010, also there was a period the ABN of the business was de-registered because they were not aware renewal notification. They registered the ABN immediately when they came to know about de-registration. They stated that also the business was de-registered some period, it was operational since 2010.

The applicant has ownership interest in 1or more actively operating main business in Australia is a separate question to the applicant involving actively in the day to day management. The Tribunal incorrectly interpreted the words “actively operating main business in Australia” by equating the words “direct and continues involvement in the management of the business” [paragraph 32 and 42]

The departmental policy (PAM3) states that, to meet the requirement for direct and continues involvement in management the applicant must demonstrate that they have been actively managing and operating the business, which requires that the business be ongoing and for the applicant to consistently spend a significant portion of their time managing the business on an ongoing basis.

The Tribunal elevated this policy to the level to the statutory criteria [paragrph 32 and 42].

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 16 (French, Sackville, Hely JJ, 8 August 2003) at [63].

Grounds 2,3 and 4 are replaced by the following:

1.    The Court Below erred in not finding:

(a)    That the Tribunal failed to consider or make finding that fourth Appellant had 50% shareholding and failed to make finding separately for each appellant.

(b)    That the conclusion of the Tribunal is legally unreasonable. Because its reasoning process is illogical and irrational. The Tribunal misunderstood the statutory criteria and there is no logical connection to reasoning process leading to the findings. The Tribunal’s outcome was legally unreasonable and failed to accord proper, genuine an realistic consideration in respect of the case before rit.

(Underlining omitted.)

30    Once again these grounds are new and bear no resemblance to the grounds relied on in the court below. The appellants require leave to rely on these grounds, which is opposed by the Minister.

31    The principles which govern the Court’s discretion to permit an appellant to rely on a new ground of appeal not raised below did not appear to be in dispute. Those principles were set out in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] where a Full Court of this Court (Kiefel J, as her Honour then was, and Weinberg and Stone JJ) said:

46    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

32    In Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [13] a Full Court of this Court (Katzmann, Derrington and O’Bryan JJ) summarised the matters which a Court might consider on applications to rely on new grounds on appeal as follows:

The decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) has been regarded for many years as identifying the principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground on appeal. The overriding rubric of whether leave to do so is in the interests of justice is well established. It is also well accepted that within the deliberative process of deciding that question certain, almost ubiquitous, issues arise for consideration. They include the following:

(1)    That in the ordinary operation of the court structure, the substantial issues between parties to litigation are decided at trial. Leave is not granted merely for the asking and hearings before courts at first instance are not to be regarded as provisional: Coulton v Holcombe (1986) 162 CLR 1 at 7 –8.

(2)    Has the applicant for leave provided any adequate or acceptable explanation for why the ground was not raised below? This is a significant matter: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166]. The fact that new counsel may have been engaged for the purposes of the appeal and has identified the new point is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 at [11]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (DKT16).

(3)    The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal: DKT16 at [31]; Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at [61]; Li Pei Ye v Crown Ltd [2004] FCAFC 8 at [79]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [38]. It may follow that, where the appellant demonstrates that the point was not taken below as a result of an oversight, the negative weight accorded to the omission will not be as great.

(4)    Whether there exists any prejudice to the respondent in permitting the new ground to be agitated? Necessarily, where the new ground sought to be raised might have been met by evidence at trial, the need to accord the respondent procedural fairness will usually prevent leave being granted: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 579 at [136]. Conversely, where the new point sought to be raised turns on a question of law or construction, or where the facts are not in controversy, leave is more likely to be given. Even then, if leave is granted, the consequence for the respondent is the removal of a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota) at [44]; AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 [14].

(5)    The nature and extent of the prejudice which will be suffered by the appellant if leave is not granted will also usually be relevant. In migration appeals, this consideration can extend to persons associated with the appellant who might be affected as a result of an appeal being dismissed.

(6)    The criterion of whether the proposed new ground has merit has been referred to as “an important consideration”: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [33]; Leota at [43]. In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, the Full Court observed (at [31]) that, in common with the approach adopted in determining whether an extension of time in which to appeal should be granted, the determination of whether any proposed new ground of appeal has merit is assessed at a relatively impressionistic level, and the Court should not descend into a fuller consideration of arguments for and against each proposed new ground.

33    There was no explanation from the appellants as to why the proposed new grounds were not raised below, beyond the fact that they were not represented before the Federal Circuit and Family Court.

34    Insofar as prejudice is concerned the Minister argued that he was prejudiced by these grounds being raised for the first time on appeal because if either ground succeeds he will have lost the opportunity for an appeal as of right under s 24 of the Federal Court of Australia Act 1976 (Cth) and could only then apply for special leave to appeal to the High Court of Australia on the limited grounds specified in s 35A of the Judiciary Act 1903 (Cth).

35    While the prejudice identified by the Minister is a factor to be taken into account (see Tohi at [13(4)]), it would not persuade me, of itself, to refuse a grant of leave to rely on the new grounds where, upon taking into account the totality of the relevant considerations, it is apparent that it is expedient in the interests of justice to allow the new grounds to be argued and determined on appeal.

36    Ultimately whether that is so will depend in this case on the merit of the proposed grounds, to be determined at a reasonably impressionistic level: see Tohi at [13(6)]. That is the task to which I now turn.

Proposed “ground 5”

37    By this proposed ground the appellants contend that the Tribunal focused on whether the wife and the husband were “actively involved in the main business” and thus adopted a narrower test than mandated by the Regulations. They contended that the inquiry should have been focused on whether the business was “actively in operation”.

38    As set out above, the criterion in cl 890.211 required that the wife “has had, and continues to have an ownership interest in 1 or more actively operating main businesses for at least 2 years immediately before the application is made”. There was no dispute that the relevant business for the purposes of the application was, as the Tribunal identified, SAAS. The term “main business” is defined in reg 1.11 (see [17] above). To meet the definition, the applicant must, among other things, demonstrate that he or she 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”.

39    The appellants focus on [32] and [42] of the Tribunal’s decision to demonstrate the alleged error. They are set out at [22] and [23] above. There is nothing in those parts of the Tribunal’s decision to suggest that it did not properly consider and apply the definition in reg 1.11 when considering whether the wife had an ownership interest in a main business. Indeed the opposite is the case. The Tribunal’s findings and conclusion at [42] of its decision reflect that it understood the matters which it was required to consider and the test it had to apply in coming to a view about whether SAAS was a main business for the purpose of cl 890.211 and thus whether the wife had an ownership interest in an actively operating main business in Australia.

40    As is demonstrated by the findings at [42] of its decision, the Tribunal found that the wife displayed a lack of knowledge of tax related matters and business turnover and did not accept that the wife had direct and continuous involvement in the management of SAAS and in making decisions about its direction and performance. It found that the wife’s involvement in the business was minimal. These were matters which led it to conclude that the wife did not have a direct and continuous involvement in the management of the business.

41    The appellants also contend that the Tribunal fell into error by applying policy to the application that was narrower than the relevant criterion. They rely on Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at [63] where a Full Court of this Court (French, Sackville and Hely JJ), in considering whether the Tribunal in that case failed to apply the criterion in cl 845.216 of Sch 2 to the Regulations, said:

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.

42    In Lobo the Full Court found, having regard to its reasons, that the Tribunal “treated assessment according to the departmental policy as assessment for the purposes of cl 845.216” and that in doing so it erred and its error was jurisdictional: Lobo at [65]. However no such error is apparent in relation to the Tribunal’s reasons in this case. The Tribunal was not narrowly focussed on responsibility demonstrated by decision making authority, responsibility for employees and for expenditure, as was the case in Lobo. It considered matters more broadly in reaching its conclusion that the wife did not maintain direct and continuous involvement in the management of SAAS from day to day and in making decisions affecting the overall direction and performance of its business.

43    In my opinion, ground 5 has no merit.

Proposed ground 1

44    This proposed ground has two limbs namely that:

(1)    the Tribunal failed to consider or make findings about the husband’s 50% shareholding in SAAS and that it failed to make findings for each of the appellants; and

(2)    the Tribunal’ s conclusion at [42] of its reasons is legally unreasonable because it is illogical and irrational.

45    In their written and oral submissions the appellants, in addressing this proposed ground, referred to the reasons of the primary judge. However, the appellants also accepted in oral submissions that proposed ground 1 is a new ground which they seek to raise on appeal and which was not raised below.

46    The findings of the primary judge are not relevant to this proposed ground as framed and, insofar as the appellants’ written and oral submissions sought to address those findings, they do not appear to bear on it nor assist in resolving it. For that reason I will not set out nor address those submissions.

47    The complaint in the first limb of proposed ground 1 is that the Tribunal failed to consider whether the husband or the children met the criteria for the Business Skills visa. The appellants submitted that the Tribunal should have considered whether each of the appellants, not just the wife, satisfied the primary criteria for subclass 890.

48    As set about at [15] above, cl 1104B of Sch 1 to the Regulations prescribed that an applicant seeking to satisfy the primary criteria for the grant of a subclass 890 visa must use particular forms, a Form 47BU and a Form 1217. A failure to proceed with an application in accordance with Sch 1 will mean that the application is not valid and will not be considered. In this case:

(1)    the Form 47BU states that four family members, including the wife as applicant, are included in the application. It nominates the wife as the main applicant and the husband as her “partner (spouse or defacto partner)” as well as providing details about the children, one of whom was under 18 years of age at the time of the application and the other of whom was aged over 18 years at that time. The form gathers personal information about the main applicant and her family; and

(2)    only the wife, who was the main applicant for the Business Skills visa completed the Form 1217. It is apparent from a review of the Form 1217 that it directs the main applicant to provide the information necessary for her to satisfy the primary criteria for the grant of a subclass 890 visa. That is, the Form 1217 is focused entirely on the main business or businesses nominated for the purpose of meeting the criteria for a subclass 890 visa and the primary applicant’s role in relation to that business.

49    That being so the wife is the only person who made a valid application as the primary visa applicant for the Business Skills visa. That is because she is the primary applicant and the only member of the family who completed a Form 1217. It follows that she was the only person in relation to whom the Tribunal was required to consider the primary criteria for the visa.

50    In relation to the second limb of proposed ground one, the appellants submitted that at [42] of its decision the Tribunal’s reasoning process was illogical and irrational making the ultimate outcome, at [44] of the Tribunal’s decision, legally unreasonable. That was because, in the appellants’ submission, the Tribunal considered that the wife needed to demonstrate active involvement in the business and because she could not, she did not satisfy the criterion in cl 890.211. They contended that in doing so, the Tribunal proceeded on the wrong premise.

51    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 289 FCR 21 at [29]-[35] a Full Court of this Court (Allsop CJ, Besanko and O’Callaghan JJ) summarised the principles in relation to illogicality, irrationality and legal unreasonableness, including relevantly as follows:

29    As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]–[29], [63] and [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39]–[40].

30    As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.

…

32    The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at [2]–[13]. See also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [54]–[65].

33    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], and [135]; Minister for Home Affairs v DUA16 (2020) 95 ALJR 54; 385 ALR 212 at [26]; SZMDS 240 CLR 611 at [130]–[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021)288 FCR 565 at [142].

34    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

52    At [44] of its decision, the Tribunal concluded that:

… the [wife] did not have, and did not continue to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately preceding the making of the application or at the time of application. Therefore, the Tribunal finds the [wife] does not meet cl 890.211 at the time of application.

53    Contrary to the appellants’ submissions, it is not the case that the Tribunal’s ultimate finding at [44] of its decision is one that could not have been reached based on the material that was before it. Rather, the Tribunal’s reasons reveal that it had before it material based upon which it could reach its ultimate conclusion that the wife did not have and did not continue to have an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately prior to the making of her application for the Business Skills visa or at the time of the application. It followed that the Tribunal found that therefore she did not meet the criteria in cl 890.211 at the time of the application.

54    There is no discernible illogicality or irrationality in the reasoning process adopted by the Tribunal as set out in [42] of its reasons or elsewhere such that it could be concluded that the decision was legally unreasonable. That is a conclusion not easily reached and it is certainly not one that I would reach in relation to the Tribunal’s reasons and its conclusion at [44].

55    In my opinion, ground 5 has no merit.

Conclusion

56    Given my findings above, and in particular the lack of merit in the proposed grounds of appeal, it is not expedient in the interests of justice to grant the appellants leave to rely on the proposed grounds of appeal included in their amended notice of appeal dated 1 September 2022. Accordingly, I would refuse leave to the appellants to rely on their proposed grounds of appeal.

57    It follows that the appeal should be dismissed and, as the appellants have been unsuccessful, they should pay the Minister’s costs as agreed or taxed.

58    I will make orders accordingly.

Associate:

Dated:    18 November 2022

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