Saravanan v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This application for review under Pt 8 of the Migration Act 1985 (Cth) (the Act) involves the construction the Migration Review Tribunal put on cl 676.211(a)(ii) of Sch 2 to the Migration Regulations 1994 (the Regulations). Clause 676 prescribes the conditions for a Short Stay (Class TR) visa subclass 676 (hereafter referred to as a "Tourist (Short Stay) visa", that being the heading of subclass 676 which is the only subclass of class 1218 Short Stay (Visitor) (Class TR) in Pt 2 of Sch 1). The criteria to be satisfied at the time of the application include cl 676.211(a) which is as follows: "The applicant: (a) seeks to visit Australia, or remain in Australia as a visitor: (i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or (ii) for a purpose other than a purpose related to business or medical treatment; …" 2 The applicant is a citizen of Sri Lanka. He is a film producer. He first arrived in Australia on 6 March 1996. He then held a Tourist (Short Stay) visa valid until 6 June 1996. On 2 July 2001 he was issued with a Student (Temporary) (Class TU) visa valid until 30 July 1998. 3 The applicant's student visa was cancelled pursuant to s 116(1)(b) of the Migration Act 1978 (Cth) (the Act) following advice that he was no longer studying and therefore was not complying with mandatory condition 8208 of that visa. 4 On 4 November 1996 the applicant was granted a Sri Lankan humanitarian visa subclass 435 valid to 31 July 1997. This was a new visa subclass created on humanitarian grounds by the government as a result of the civil war in Sri Lanka. 5 During the currency of the subclass 435 visa the applicant started a film production business with an Australian partner and began plans for their first film. The conditions of subclass 435 visas permitted work. 6 On 31 July 1997 all subclass 435 visas came to an end. On that day the applicant applied for a Tourist (Short Stay) visa for the period to 30 October 1997. The applicant sought that visa as his then solicitors were preparing a temporary business visa application which he intended to lodge at some time during the currency of his visitor visa. His advice from his solicitors was that this was proper as many such business visa applications were lodged by persons holding visitor visas and the regulations specifically allowed the holder of a visitor visa to go from that visa to a business visa. The applicant said in a statutory declaration sworn on 28 September 2000: "It was not my intention to use the visitor visa to conduct any sort of business activities as this would have been illegal. The major purpose in applying for a sub-class 676 visitor visa was to bridge the period between the expiry of my sub-class 435 visa and the lodging of my business visa so that I would not become an unlawful non-citizen in Australia." 7 There is nothing in the Tribunal's reasons to suggest that the truthfulness of this statement was doubted. 8 On 1 August 1997 a delegate of the Minister refused the application. The delegate found the applicant satisfied the criteria to be satisfied at the time of application (Sch 2 cl 676.21) but did not satisfy one of the criteria to be satisfied at the time of decision, namely an intent to comply with any conditions subsequent to which the visa is granted: cl 676.221(2)(g)(iii). 9 The applicant applied for internal review under the then applicable provisions of Pt 5 Div 2. 10 On 28 October 1997 an internal review officer set aside the decision and substituted a decision to grant the applicant a Tourist (Short Stay) visa for the three months which the applicant had requested, that is until 30 October 1997. The applicant's migration agent was advised of this decision on the day that the newly granted visa expired. 11 On the following day, 31 October 1997, the applicant applied for a Business (Long Stay) visa subclass 457. On 2 July 1998 a delegate of the Minister determined that the applicant was not valid for the purposes of s 48 of the Act because on the day when the application was made the applicant did not hold a relevant substantive visa. 12 On 27 August 1998 the applicant commenced a proceeding in the High Court contending, inter alia, that the decision was unreasonable. 13 On 13 April 1999 Hayne J ordered by consent that a writ of certiorari issue to quash the decision of the internal review officer of 28 October 1997 and that a writ of mandamus issue requiring the Minister to hear and determine the application for a Tourist (Short Stay) visa according to law. 14 Notwithstanding that order, nothing happened for more than a year. On 7 April 2000 the applicant's solicitors wrote to the Minister pointing out that all the applicant wanted was the opportunity to put his case fairly for a Business (Long Stay) visa and that he was prevented from doing that by the unlawful decision depriving him of a substantive visa at the time he applied for the visa. In a further letter dated 28 June 2000 the applicant's solicitors pointed out that it had always been their client's intention to apply for a temporary business visa as an independent executive to start his own movie business in Australia but at the time holders of Sri Lankan temporary visas could not move to a Business (Long Stay) visa. Accordingly, he was advised by his former solicitors to apply for a Tourist (Short Stay) visa as Business (Long Stay) visas could be accessed from such visas. 15 On 10 July 2000 a reconsideration officer refused the application for a Tourist (Short Stay) visa. 16 To recapitulate, the application in 1997 for a Tourist (Short Stay) visa was rejected. The decision-maker found the applicant satisfied the time of application criteria but failed the time of decision criteria. This decision was then set aside and the applicant granted a visa which was however quite useless because it expired on the day of the review decision. The applicant's immediate application for a Business (Long Stay) visa was refused because he did not have a substantive visa (although he would have had one had the review decision been given in time). The applicant had to go to the High Court to get this last refusal set aside. When a decision was made (fifteen months after the High Court granted certiorari and mandamus) the application was refused, this time on the basis that the applicant did not satisfy the time of application criteria. 17 The applicant lodged an applicant for review to the Migration Review Tribunal. On 6 December 2000 the Tribunal affirmed the decision. This is the decision under review.