Chaddha v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 9 The Tribunal noted that, at the time of lodgment of the application for a visa, class UC contained two subclasses, 456 (Business (Short Stay)) and 457 (Business (Long Stay)). The Tribunal held that subclass 456 was not relevant because such a visa could not be granted to a primary visa applicant in Australia and the applicants were seeking visas for longer than three months, using Form 1066. The Tribunal then identified the ground on which a subclass 457 visa had been sought by the applicants, namely "sponsorship by an overseas business". It said that no claim had been made in respect of any other ground and the material before the Tribunal did not suggest that the first applicant met any of the other grounds for a subclass 457 visa. 10 The Tribunal referred to the criterion that an application for a subclass 457 visa by a person who does not operate a business activity in Australia was that the application related to an activity the subject of an approved business nomination by the employer. It found that the sponsorship application by Somatico and its nomination of the first applicant as business executive officer were refused on 7 December 1998. It noted that this refusal could not be reviewed by the Tribunal at the instigation of the first applicant, but only on the application of the employer. The Tribunal held that review rights did not extend to an overseas business. 11 Without an approved business nomination, it was not possible for the first applicant to meet the criterion considered by the Tribunal. For this reason, the Tribunal did not consider other criteria. It affirmed the decision under review on the basis that there was no approved business nomination.

The refusal of a further adjournment 12 In their initial application filed on 24 April 2001, the applicants recited four of the grounds available under s 476(1) of the Migration Act. These were the grounds specified in par (a) (failure to observe procedures required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision), par (e) (error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts), par (f) (fraud or actual bias) and par (g) (the absence of evidence or other material to justify the making of the decision). No particulars of these grounds were supplied until an amended application was filed on 25 June 2001. The particulars supplied referred to a failure to act with procedural fairness and to obey the rules of natural justice. It was alleged "the applicant" (presumably the first applicant) was suffering from a painful medical condition and the Tribunal ought to have allowed the extension of time his doctor requested. It was suggested that the Tribunal's decision was based on the applicant's (again, presumably the first applicant's) failure to provide oral evidence, due to illness. 13 Written contentions filed on behalf of the applicants on 10 August 2001 concentrated on the failure of the Tribunal to provide a further adjournment of the hearing. The contentions relied on the judgment of Lindgren J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, 6 May 1997, unreported) (reversed in Sun v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71)). They argued that what Lindgren J said about s 425 of the Migration Act (the equivalent of s 360 in the provisions relating to protection visas) was approved by Gummow J and Callinan J in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at 642 and 668.

14 Even if this contention was correct, it foundered upon the fact that s 360 of the Migration Act had been amended by the time the Tribunal came to deal with the applicants' case. Like s 425 of the Migration Act (which applies to the Refugee Review Tribunal), s 360 no longer requires that the Tribunal give an applicant an opportunity to appear. It now only requires that the Tribunal invite an applicant to appear to give evidence and present arguments relating to the issues arising in relation to a decision under review. Section 425 in its current form has been considered in several authorities. It is clear that, in its current form, the section limits the obligation of the Tribunal to extending an invitation to an applicant and does not require the Tribunal to take further steps to ensure that an applicant avails himself or herself of the opportunity. See Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275 (2000) 101 FCR 434 at [43] per Branson J, Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 at [35] and Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 at [69]. Section 360 must be construed in the same way.

15 To the extent to which the contentions on behalf of the applicants sought to raise a complaint of denial of natural justice, they are excluded from consideration by the Court by s 476(2)(a) of the Migration Act. In saying this, I am not to be taken as suggesting that the Tribunal did deny the applicants natural justice. The Tribunal fixed no less than four dates for the hearing, to facilitate attendance by the first applicant. It offered the first applicant a hearing by telephone if he could not, or did not wish to, attend. The information supplied by the applicant's doctor by telephone on 7 March 2001 did not support any contention that he was unable to attend a hearing, or a telephone hearing, on medical grounds. It is hard to see that the Tribunal had any obligation to adjourn the hearing further. 16 The original contentions put on behalf of the applicants were therefore bound to fail. Further contentions were therefore filed shortly prior to the hearing of the proceeding. Counsel for the applicants concentrated upon those further contentions and it is to them that I now turn.

Failure to consider another kind of visa 17 Counsel for the applicants did not seek to challenge the Tribunal's conclusion that the first applicant failed to satisfy the criterion that the activity he proposed to carry on was the subject of an approved business nomination by an employer. Rather, he argued that, having reached this conclusion, the Tribunal should then have turned its attention to the question whether the first applicant could meet any of the other criteria for the grant of a business (long stay) visa, or whether he could meet the criteria for the grant of a business (short stay) visa. The contention was that the Tribunal had identified the wrong issue, asked the wrong question, ignored relevant material and relied on irrelevant material and had therefore made an error of law which deprived it of jurisdiction or authority under the Act to make the decision it made. Counsel relied on Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. 18 It is necessary to refer to some of the legislative provisions on which this argument is based. Section 31(1) of the Migration Act provides that there are to be prescribed classes of visas. Section 31(4) provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. Section 31(5) provides that a visa is a visa of a particular class if the Migration Act or the Migration Regulations specify that it is a visa of that class. Section 45 provides as follows: "(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. (2) Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class; or (c) an application in specified circumstances for a visa of a specified class. (3) Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant: (a) must be outside Australia; or (b) must be in immigration clearance; or (c) must have been refused immigration clearance and not have subsequently been immigration cleared; or (d) must be in the migration zone and, on last entering Australia: (i) have been immigration cleared; or (ii) have bypassed immigration clearance and not have subsequently been immigration cleared." 19 Section 46 specifies when an application for a visa is valid. One of the conditions for validity of an application is that it be for a visa of a class specified in the application. Section 47(1) obliges the Minister to consider a valid application for a visa. Section 65(1) makes the grant of a visa dependent upon the satisfaction of the Minister as to various matters, including the satisfaction of criteria for a visa described by the Migration Act or the Migration Regulations. 20 Regulation 2.01 of the Migration Regulations provides that, for the purposes of s 31 of the Migration Act, prescribed classes of visas are such classes as are set out in the respective items in Sch 1, as well as transitional (permanent) and transitional (temporary) classes. Regulation 2.02 provides that Sch 2 is divided into parts, each identified by the word "Subclass" followed by a three digit number (being the number of the subclass of visa to which the part relates) and the title of the subclass. Regulation 2.03 provides that the prescribed criteria for the grant to a person of a visa of a particular class are those set out in the relevant part of Sch 2. The effect of reg 2.04 is that the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant part of Sch 2 are the circumstances set out in that part of Sch 2. 21 Regulation 2.07 provides as follows: "(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) other matters relating to the application. (3) An applicant must complete an approved form in accordance with any directions on it." Regulation 1.18 provides that the Minister may, in writing, approve forms for use in making an application for a visa.

22 Item 1223A in Sch 1 to the Migration Regulations makes provision for temporary business entry (Class UC) visas. Sub item (1) provides as follows: "(1) Form: (a) Subject to paragraph (c), if the applicant seeks a visa that will permit the applicant to remain in Australia (whether or not also a visa to travel to and enter Australia) for a period, or periods, of 3 months or less: (i) if the application is made on the applicant's behalf by an approved nominator within the meaning of clause 456.111 of Schedule 2: 1034. (ii) in any other case: 456. (b) If the applicant seeks a visa that will permit the applicant to remain in Australia (whether or not also a visa to travel to and enter Australia) for a period, or periods, of more than 3 months: 1066." 23 Item 1223A(2) provides for different fees, according to whether an applicant seeks to remain in Australia for up to three months or for more than three months. Item 1223A(3) provides, so far as is relevant: "(3) Other: (a) In the case of an applicant who seeks a visa that will permit the applicant to travel to, enter and remain in Australia for a period, or periods, of 3 months or less: (i) the applicant must be outside Australia; and (ii) subject to paragraph (ac), the applicant may only make the application outside Australia. (aa) Subject to paragraph (ab), an application by an applicant who seeks a visa that will permit the applicant to travel to, enter and remain in Australia for a period, or periods, of more than 3 months may be made in or outside Australia, but not in immigration clearance." Item 1223A(4) provides for two subclasses, 456 (Business (Short Stay)) and 457 (Business (Long Stay)). 24 Items 456 and 457 respectively in Sch 2 to the Migration Regulations make provision for those two subclasses. Each contains criteria to be satisfied in order for a visa of that subclass to be granted. 25 Both the delegate of the Minister and the Tribunal rejected the applicants' application for a Business (Long Stay) subclass 457 visa because the first applicant failed to meet the criterion (to be satisfied at the time of decision) found in item 457.223(6)(b), which is applicable where the visa is sought on the basis of sponsorship by an overseas business, and which requires that the proposed activity be the subject of an approved business nomination by the employer. Counsel for the applicants argued that the first applicant should also have been considered by reference to the criteria in item 457.223(7), which provides as follows: "Independent executives (7) The applicant meets the requirements of this subclause if the Minister is satisfied that: (a) the applicant proposes to develop in Australia a business activity that will be: (i) conducted by the applicant as a principal; and (ii) of benefit to Australia; and (b) the applicant has a genuine and realistic commitment: (i) to maintain or obtain an ownership interest in a business in Australia; and (ii) to maintain a direct and continuous involvement in the management of the business; and (iii) to make decisions that affect the overall direction and performance of the business from day to day; and (c) nothing adverse is known to Immigration about the applicant's business background; and (d) the applicant has net assets of: (i) not less than AUD250,000; or (ii) a lesser amount that the Minister considers to be adequate; to conduct or establish the business; and (e) the applicant has personal attributes and background that are relevant to, and consistent with, the nature of the proposed business; and (f) the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct or establish the proposed business." 26 The argument really amounted to an attempt to put in another guise the proposition that the Tribunal should have granted the first applicant a further adjournment of the hearing. It was not suggested that the first applicant had supplied to the Tribunal the material necessary to satisfy the criteria in item 457.223(7). Rather, it was contended that, if the first applicant had been present at a hearing, and had been given to understand that his application could not succeed because of the failure to meet the criteria in item 457.223(6), he might have been able to supply the material to satisfy another set of criteria. For the reasons given above, this argument must fail. 27 Counsel for the applicants was then driven to contending that the Tribunal should have considered whether to grant the first applicant another business (short stay) subclass 456 visa. The argument was based on the proposition that, because of the emphasis on classes of visas in ss 31, 45 and 46(1)(a) of the Act, an application for a visa in a particular subclass must be taken to be an application for a visa in any class to which that subclass belongs. It was contended that this principle gave rise to an obligation on the part of the Minister, and therefore on the part of the Tribunal on review of a decision of a delegate of the Minister, to consider any other subclass of visa in the same class before refusing an application for a particular subclass of visa. 28 This argument is fraught with difficulties. As was pointed out by counsel for the Minister, the use of the power in reg 1.18 to approve different forms for different subclasses of visa would give rise to considerable difficulties. As the extract from item 1223A in Sch 1 to the Migration Regulations set out above shows, different forms have been approved for applications for subclass 456 and subclass 457 visas. The application in the present case had been made on Form 1066, in accordance with item 1223A(1)(b). The Tribunal therefore did not have before it an application in the proper form for a subclass 456 visa. As counsel for the Minister also pointed out, different fees are often applicable to different subclasses of visa. That is the case under item 1223A(2) in respect of visas for up to three months and visas for more than three months. In the present case, the higher fee had been paid, so that it might be said that the requirement to pay the lower fee had been satisfied. The application of a universal principle that the decision-maker is bound to consider any visa in the relevant class would result in the failure of many applications simply on the ground that the fee paid was insufficient. 29 The practical answer to the argument put on behalf of the applicants is that the Tribunal did do exactly what counsel for the applicants claimed that it failed to do. In its reasons for decision, the Tribunal referred to both subclass 456 and subclass 457. It said: "Subclass 456 is not relevant as such a visa cannot be granted to a primary visa applicant in Australia and the visa applicants were seeking visas for longer than 3 months, using form 1066." In the application form, the applicants had indicated that their proposed stay in Australia was for two years. One of the criteria to be satisfied at the time of the application for a subclass 456 visa is found in item 456.211(b). It is that the applicant proposes in the application to remain in Australia for not more than three months on any single occasion. The applicants plainly failed to meet that criterion. By virtue of item 456.221(2)(a), it was a criterion that they were required to continue to satisfy at the time of decision.

30 Further, item 1223A(3)(a) in Sch 1 to the Migration Regulations required that an applicant for a visa for three months or less must be outside Australia and may only make the application outside Australia. The first applicant could satisfy neither of these requirements. Counsel for the applicants was driven to argue that, because the first applicant made frequent business trips outside Australia, the Tribunal ought to have considered that he might have been able to satisfy the requirement of being outside Australia when the visa was granted. The Tribunal was not bound to make the applicants' case for them. It was obliged to consider the material before it. Even with knowledge that the first applicant had undertaken previous business trips outside Australia, the Tribunal was not obliged to speculate as to whether he would do so in the future. In any event, his absence from Australia (if it should have occurred) would not cure the requirement that the application be made outside Australia. The application before the Tribunal was made in Australia. 31 The Tribunal was plainly correct as a matter of law in rejecting any consideration of a subclass 456 visa. 32 The Tribunal also gave consideration to the question of other criteria for a subclass 457 visa. In its reasons for decision, it said: "A Subclass 457 visa can be obtained on a number of grounds. The ground under which the visa application appears to have been made is 'sponsorship by an overseas business'. No claims have been made in respect of the other grounds and the material before the Tribunal does not suggest that the primary visa applicant meets any of the other grounds." 33 No argument was put to the Court to suggest that the Tribunal was wrong to conclude that the material before it did not suggest that the first applicant met any of the other grounds. As I have said, the argument was really based on the proposition that, if an adjournment had been granted, the first applicant might have been able to provide material that would bring him within one of the other grounds for a subclass 457 visa.

Conclusion 34 The decision of the Tribunal cannot therefore be overturned on that basis on any of the grounds available for review under s 476(1) of the Migration Act. For these reasons, the application must be dismissed. The applicants should pay the Minister's costs of the proceeding.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the Respondent: Australian Government Solicitor