Federal Court. Did para 9.4(1) of Direction 99 apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company? If so, did the Tribunal misinterpret para 9.4(1) in circumstances where the Applicant was self-employed?
Paragraph 9.4 of Direction 99 provided:
9.4 Impact on Australian business interests
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal said as follows in the context of reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth):
89. Paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on the interests of Australian business if the non-citizen is not allowed remain in Australia.
90. The Applicant submits that in 2021 the Applicant commenced a business registered under the name ‘I help you Move’ and also worked as a sub-contractor to Allied Couriers moving antique furniture, on the Gold Coast. The Applicant submits that this business was financially viable for more than 12 months, prior to the Applicant’s incarceration such that this other consideration should be assessed as affording weight in favour of revocation of the visa cancellation decision.
91. Paragraph 9.4(1) of the Ministerial Direction makes clear that this Other Consideration should only generally be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal considers that the Applicant’s circumstances do not meet this requirement. Accordingly, the Tribunal finds that this is Other Consideration now weighs neutrally.
(Footnotes omitted and emphasis in original).
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did para 9.4(1) apply in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company?
Question 2: If the answer to Question 1 is 'yes', did the Tribunal misinterpret para 9.4(1) at [91] in circumstances where the Applicant was self-employed?
Question 3: Is it inherently wrong for decision-makers to make differential findings in relation to issues on which they have some uncertainty? For instance, in a case similar to the present, had the Tribunal been aware of an issue of interpretation in relation to paragraph 9.4(1), could it have made a finding that, if it had to consider the impact on the business of the Applicant and his partner, it would have been of such little weight that it would not have altered the overall conclusion?
Question 4: Does the existence of a power to reach the state of satisfaction required by s 501CA(4)(b)(ii) involve some discretion?
The FCA answered those questions as follows: