Federal Court. For the purpose of cl 892.212(c) of Schedule 2 to the Migration Regulations 1994 (Cth), may financial statements prepared in accordance with accounting standards provide evidence of the value of the net assets of a business? If so, and the financial statements prepared for a fiscal year overlap only partially with the period described in cl 892.212(c), is a period different from the period provided for in the provision acceptable?
Clause 892.212 of Schedule 2 to the Migration Regulations 1994 (Cth) provided:
Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:
(a) 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:
(i) 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 1 full-time employee over that period of 12 months; and
(ii) provided those hours of employment to an employee, or employees, who:
(A) were not the applicant or a member of the family unit of the applicant; and
(B) were Australian citizens, Australian permanent residents or New Zealand passport holders;
(b) 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:
(i) have a net value of at least AUD250 000; and
(ii) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and
(iii) 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;
(c) the assets owned by 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:
(i) have a net value of at least AUD75 000; and
(ii) had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and
(iii) 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.
In one of the two matters decided by the Federal Court (FCA), the Tribunal stated in its reasons:
33. When invited to do so, the applicant’s representative requested that, if the Tribunal finds that the applicant does not meet the requirements of cl 892.212, it refer the matter to the Minister for the exercise of his discretion under s 351 of the Act.
34. The Tribunal observed that in his written submissions, the representative did not seek the referral, nor did he provide submissions and documentary evidence in support of such a request. The Tribunal further noted that the applicant can approach the Minister directly.
...
79. The applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister discretion to substitute a decision of the Tribunal for another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
80. The representative submitted that the applicant and his family have been living in Australia for almost 10 years, that they operate a successful business in Australia and employ Australian citizens. He further submitted that the applicant relied on the advice of his former migration agent and that he has made significant contributions to Australian society.
81. The Tribunal has considered the applicant’s submissions and the ministerial guidelines relating to the discretionary power set out in PAM3 [the Department’s Procedures Advice Manual] “Minister’s guidelines on ministerial powers (s.351, s.417, and s.501J)”.
82. Based on the evidence before it, the Tribunal is not satisfied that this matter exhibits unique or exceptional circumstances that warrant referral to the Minister. However, the Tribunal notes that following this decision the applicant can make a direct request to the Minister under s 351 of the Act should he wish to do so.
Some of the questions to the FCA were as follows:
Question 1: For the purpose of cl 892.212(c), may financial statements prepared in accordance with accounting standards provide evidence of the value of the net assets of a business?
Question 2: If the answer to Question 1 is 'yes', and the financial statements prepared for a fiscal year overlap only partially with the period described in cl 892.212(c), is a period different from the period provided for in the provision acceptable?
Question 3: Can it be said that the Tribunal decided not to make a request on the applicant's behalf to the Department for a Ministerial referral, instead of making a decision not to refer the matter to the Minister, with the result that there was no decision of the Tribunal or exercise of power by the Tribunal that was prohibited by s 351 of the Migration Act 1958 (Cth)?
Question 4: If the answer to Question 3 is 'no', should the Court in its discretion refuse to make a declaration of the kind sought by the applicants, as relief could not oblige the Tribunal to reconsider whether or not to “refer” the applicants to the Minister?
The FCA answered those questions as follows: