High Court Rules Post Cancellation Evidence Relevant


The High Court has dramatically changed the landscape in favour of business visa holders as far as the business visa cancellation regime is concerned.  The Court has determined that there is no limit to the relevant evidence that the Administrative Appeals Tribunal (AAT) can take into account when it conducts its hearing. Previously the AAT & the Federal Court had determined that the AAT was generally limited to looking at the facts and circumstances existing at the time of the original business visa cancellation decision by the DIAC delegate.  Following the High Court decision this is no longer the case, and it means that even after a business visa is cancelled the visa holder can set up a new business and the AAT can take that into account on review.

The High Court is Shi v MARA [2008] HCA 31 (30.7.08) where it determined that the AAT could look at fresh evidence and facts which occurred after the original cancellation decision.  Shi was about the decision by the Migration Agents Registration Authority to cancel or suspend a migration agent’s registration.  The reasoning of the High Court is just as apposite in relation to business visa cancellations.  Here is what Hayne & Heydon JJ said about the AAT’s role in a review of an original decision:

  1. In reviewing MARA’s decision to cancel the appellant’s registration, the [AAT] was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the [AAT] in reviewing the cancellation decision were first, whether the [AAT] was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the [AAT] should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the [AAT] were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.
  2.  MARA’s contention, in this Court and in the courts below, that the question for the [AAT] was whether the correct or preferable decision when MARA made its decision was to cancel the appellant’s registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the [AAT’s] task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal  in judicial proceedings. But that is not the [AAT’s] task.
  3.  It has long been established that:

“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT].”[ Drake (1979) 24 ALR 577 at 589 per Bowen CJ & Deane J.]

And MARA accepted in argument in this Court that in conducting its review the [AAT] was not limited to the record that was before MARA[78]. It submitted, however, that the [AAT] had to consider the circumstances “as appear from the record before it as they existed at the time of the decision under review”.

  1.  Once it is accepted that the [AAT] is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the [AAT] will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

So applying this to business visa cancellations it means that what a visa holder does between when the visa is cancelled and when the AAT makes its decision is relevant for determining if the visa should be cancelled or not.

Recapping the Minister can cancel a business visa under s. 134 of the Migration Act which says:

  1. (1)…the Minister may cancel a business visa…if the Minister is satisfied that its holder:

(a)       has not obtained a substantial ownership interest in an eligible business in Australia; or

(b)       is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(c)       does not intend to continue to:

(i)         hold a substantial ownership interest in; and

(ii)        utilise his or her skills in actively participating at a senior level in the day-to-day management of;

an eligible business in Australia.

There is a whole line of authority in the AAT typical of which one would find statements like this:

In the case of a decision to cancel, the Tribunal is limited to a consideration of events up to the time of the primary decision. [from Yuk Chun Wong v. MIMIA [2002] AATA 54 (31.1.02).]  Some evidence of events after the cancellation could be given but only the basis that it confirmed plans in place prior to the cancellation.

All AAT decisions taking a similar approach over the years are wrong.

In practice what this means is that even after the primary decision is made to cancel a business visa the business visa holder can still start new business ventures in order to meet the requirements of s. 134 and then bring all the evidence into the AAT right up until the day of hearing.

In the first post-Shi AAT decision, Kushner v MIAC [2008] AATA 1170 (24.12.08), the Tribunal ruled that facts occurring after the visa cancellation could be taken into account in business visa cancellations.  The AAT concluded (at para 17) :

I do not understand the provisions to have the effect that the Tribunal is limited to considering only the material that was before the primary decision-maker or only evidence relating to the circumstances at that time.

Just confirming the visas affected are the offshore subclasses 127 (business owner), 128 (senior executive), 129 (State/T’tory sponsored business owner), 130 (State/T’tory sponsored senior executive) & 131 (Investment-linked) & the comparable onshore visas – 840 business owner, 841 senior executive, 842 State/T’tory sponsored business owner, 843 State/T’tory sponsored senior executive & 844 Investment-linked and the new visa subclass 132 business talent visa.  (Technically the 160 series business visas are also affected but the writer knows of no cases of cancellation of these visas because they are only temporary visas and if a person has not set up a business under those visas then ordinarily the person would not be granted a permanent residence business visa.