A common problem which has been on the boil since the decision in Berenguel
http://eresources.hcourt.gov.au/showCase/2010/HCA/8
A recent enquiry from a Colleague has generated the following draft which may be of assistance to my colleagues generally; the alternative is to simply concede and then throw yourself at the feet of the Minister under section 351 and beg for mercy..
This was the problem....the draft below addresses the issues before the Tribunal and articulates a position so that if the tribunal does not agree and prefers the requirement "included in..."; the Applicant may lose well and position on an appeal to the FCC, which in my opinion has got it wrong and ultimately proceed to the Full Federal Court
The Tribunal has highlighted a potential problem arising by reason of criterion 890.211 expressed by the Tribunal in the following terms:
“You are invited to appear before the AAT to give evidence and present arguments
relating to the issues arising in your case. These issues include the requirement in
relation to a main business for all Business Activity Statements required by the
Australian Taxation Office to have been included with the visa application (cl.
892.211). It is open to you to make a submission on this, or other, issues prior to
hearing.”
Relevant Law
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. (my emphasis)
The facts
In the current case it appears that the BAS and GST for the relevant period have not been “included in the application”.
The legal argument
The requirement embodied in criterion 890.211 to have included the relevant BAS and GST appears on its face to require that at the time of the making of the application the documents have been submitted.
With respect that is not the case by reason of the relevant requirement being at odds with section 55 of the Migration Act 1955. In addition the decision at first instance is the subject of a merits review and the AAT is constituted to hear the matter “De Novo”.
Section 55 of the Migration Act 1958 provides as follows:
MIGRATION ACT 1958 - SECT 55
Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
It is submitted on behalf of the Applicant that the relevant statutory provision incorporated in criterion 890.211 is ultra vires by reason of the temporal component embodied in Section 55 “Until the Minister has made a decision” which is at odds with criterion 890.211 which purports to impose a different temporal requirement, namely the requirement to include the documents in the application at first instance.
That being the case, the Tribunal would read down the requirement “included in the application” and proceed to determine the Application before it which now includes all of the relevant documents.
Conclusion
I now attach all of the relevant GST and BAS statements for each of the main Businesses sought to be relied upon at the hearing of this matter.
Please do not hesitate to contact me should you have any further enquiries.
I hope this helps any colleague who may be facing a similar problem
Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
It is submitted on behalf of the Applicant that the relevant statutory provision incorporated in criterion 890.211 is ultra vires by reason of the temporal component embodied in Section 55 “Until the Minister has made a decision” which is at odds with criterion 890.211 which purports to impose a different temporal requirement, namely the requirement to include the documents in the application at first instance.
That being the case, the Tribunal would read down the requirement “included in the application” and proceed to determine the Application before it which now includes all of the relevant documents.
Conclusion
I now attach all of the relevant GST and BAS statements for each of the main Businesses sought to be relied upon at the hearing of this matter.
Please do not hesitate to contact me should you have any further enquiries.