Cheng v Minister for Immigration and Citizenship [2013] FCA 405

Cheng v Minister for Immigration and Citizenship [2013] FCA 405

The Tribunal did not commit jurisdictional error by construing "turnover" in cl 892.213 so that, for a business operating as an agent in the provision of services, only service revenue counted rather than the total invoice value of goods. PAM3 was not binding, but the Tribunal was entitled to refer to it for guidance and consistency. The Tribunal's application of that construction to Nisi's transactions, including its conclusion that only $27,250 service revenue counted, was a factual assessment open on the material and therefore did not disclose jurisdictional error. The Federal Magistrate therefore did not err in dismissing the judicial review application.

Jurisdiction
Australia
Judgment Date
06 May 2013
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal From Orders Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of Visas
Outcome
Appeal dismissed with costs.
Legal Topics
['subclass 892 Visa' 'business Skills (residence) (class Df) Visa' 'meaning of Turnover' 'use of Ministerial Policy by the Migration Review Tribunal' 'jurisdictional Error' 'agency and Legal Title to Goods']
['migration Law' 'administrative Law'] ['subclass 892 Visa' 'business Skills (residence) (class Df) Visa' 'meaning of Turnover' 'use of Ministerial Policy by the Migration Review Tribunal' 'jurisdictional Error' 'agency and Legal Title to Goods']

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal From Orders Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of Visas

Legal Issues

  1. 1 ['Whether the Tribunal erred in its construction of the word "turnover" in cl 892.213 of the Migration Regulations 1991 (Cth).' 'Whether the Tribunal erred in applying its meaning of "turnover" to Nisi Group (Australia) Pty Ltd\'s transactions by limiting turnover to service revenue rather than invoice value.' 'Whether the Tribunal permissibly referred to PAM3 ministerial policy guidelines when construing and applying the relevant regulation.']

Ratio Decidendi

The Tribunal did not commit jurisdictional error by construing "turnover" in cl 892.213 so that, for a business operating as an agent in the provision of services, only service revenue counted rather than the total invoice value of goods. PAM3 was not binding, but the Tribunal was entitled to refer to it for guidance and consistency. The Tribunal's application of that construction to Nisi's transactions, including its conclusion that only $27,250 service revenue counted, was a factual assessment open on the material and therefore did not disclose jurisdictional error. The Federal Magistrate therefore did not err in dismissing the judicial review application.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' 'The Appellants pay the costs of the First Respondent.']