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[2001] FCA 938
Federal Court of Australia
2001-07-20
Heerey J
Original judgment source is linked above.
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.
Tribunal's reasons 18 In the course of its reasons the Tribunal said: "18. The visa applicant's stated purpose is to apply for a business visa in order to engage in business as an independent executive. … Based on the written and oral evidence, the Tribunal finds that the intention of the visa applicant in applying for a subclass 676 visa was to 'qualify [him]to apply for a business visa'. It finds also that 'it had always been his intention to apply for a temporary business visa as an independent executive to start his own movie business in Australia …' The Tribunal finds that the visa applicant is a partner in Green Isles Films International and that he and his partner have engaged in film making since 1994. They are currently engaged in marketing their latest production. The Tribunal finds further that because the visa applicant was attending to his business activities in Australia, he did not wish to leave Australia in order to apply for a business visa off-shore. The Tribunal accepts the evidence of Mr Samarasinghe that he has found the visa applicant to be of good character. The Tribunal finds that the purpose of the application for subclass 676 visa by the visa applicant is to apply for a business visa in order to develop and conduct a business activity. The visa applicant's object, the result intended or sought, the end and aim in applying for a subclause [sic] 676 visa is to establish a relationship with something else, namely business, by enabling him to apply for a business visa which would enable him to then establish and conduct a business." 19 After referring to Policy Direction No 1 of 1996 under s 499 of the Act and the criterion for the grant of a visitor visa that the applicant intends to make a genuine visit to Australia, the Tribunal continued: "20. The visa applicant has not provided evidence of the fact that he intends a genuine visit other than he requires to be the holder of a subclass 676 visa in order that he may apply for a temporary business entry visa. The Tribunal by way of a Section 359(1) letter dated 18 September 2000 requested clarification as to the purpose of the visit. The visa applicant re-iterated that his reason for applying for a subclass 676 visa was that he could then validly make an application for a temporary business entry visa. This is the visa applicant's only stated plan for the visit. The Tribunal finds for all the above reasons that the application for a subclass 676 visa to enable the visa applicant to then apply for another class of visa does not satisfy the requirement for grant of a subclass 676 visa that the visa applicant intends a genuine visit. 21. On the basis of the evidence before the Tribunal, the Tribunal is unable to be satisfied that the intention of the visa applicant to visit Australia is genuine and therefore the visa applicant has failed to satisfy subclause 676.221(4)(h). The Tribunal has already found that the visa applicant has failed to satisfy subclause 676.211(a). 22. It is not necessary for the Tribunal to proceed to consider whether the visa applicant would meet the other criteria in Part 676 as an applicant must meet all of the prescribed criteria for the visa to be granted."
Conclusion on review 20 Classes of visas prescribed under s 31 of the Act (other than those created by the Act itself in ss 32-38) are either Permanent (Sch 1 Pt 1), Temporary (other than Bridging visas) (Sch 1 Pt 2) or Bridging visas (Sch 1 Pt 3). So the concept of a visa which permits a person to enter and remain in Australia for a particular purpose but only for a limited period is fundamental to the Act's visa system (see s 31(1) and (2)). 21 The visa in question here, the Tourist (Short Stay) visa, is quintessentially a temporary one, so the language of cl 676.211 has to be construed in the light of that circumstance and also in a way which is consistent with the structure of the Regulations. 22 "Purpose" in cl 676.211(a) is speaking of what the visa applicant proposes to do during the period for which the visa is to be granted. Of course the applicant may have in mind another purpose as to what he or she wants to do after the end of the visa period but that must necessarily involve another visa - or perhaps naturalisation. That is not the relevant purpose with which s 676.211(a) is concerned. 23 It may be true, as counsel for the Minister submitted, that activity which is preparatory to the establishment of a business, such as market research or raising finance, is "related" to that business. However in the present context the business must be one which is to be carried on during the period of the visa. 24 The point can be made by reference to the Business (Long Stay) visa. The criteria to be satisfied at the time of application include the following "457.211 If the applicant is in Australia: (a) the applicant is the holder of: (i) a visa of one of the following classes: (A) Business (Temporary) (Class TB); (B) Cultural/Social (Temporary) (Class TE); (C) Educational (Temporary) (Class TH); (D) Expatriate (Temporary) (Class TJ); (E) Family Relationship (Temporary) Class TL); (F) Interdependency (Temporary) (Class TM); (G) Medical Practitioner (Temporary) (Class UE); (H) Retirement (Temporary) (Class TQ); (I) Supported Dependant (Temporary) (Class UE); (J) Working Holiday (Temporary) Class TZ); or (ii) a visa of one of the following subclasses: (A) Subclass 303 (Emergency (Temporary Visa Applicant)); (B) Subclass 427 (Domestic Worker (Temporary) - Executive); (C) Subclass 457; or (b) the applicant is the holder of: (i) a visa of one of the following classes: (A) Border (Temporary) (Class TA); (B) Electronic Travel Authority (Class UD); (C) Long Stay (Visitor) (Class TN); (D) Short Stay (Visitor) (Class TR);" 25 It will be noted that a Tourist (Short Stay) visa is included as one of those visas which must be held by an applicant: cl 457.211(b)(i)(D). As their names suggest, almost all of these visas are of a temporary nature. It is possible that the drafters of the regulations had in mind people who apply for these visas with no thought of any subsequent purpose to be achieved in Australia after the end of the visa period and then, while they are in Australia, conceive the idea of applying for a Business (Long Stay) visa. However, the much likelier situation, and that which the regulations obviously contemplate, is that someone will come to Australia for a temporary period in the hope that they may apply for a subsequent visa later for another purpose, such as business. 26 As to the "genuine visit" point (pars 20-22 of the Tribunal's reasons quoted above), there is the initial problem that counsel agreed that the reference to cl 676.221.4(h) was an error, but could not agree as to what the Tribunal had in mind. But in any event this could not be a valid alternative basis for the decision. Clause 676.211(a)(ii) does not require any particular purpose, only that the purpose is not "related to business or medical treatment". If there is a purpose of the latter kind the appropriate visa would be one or other of 456 Business (Short Stay) 457 Business (Long Stay) 675 Medical Treatment (Short Stay) 685 Medical Treatment (Long Stay) 27 So once a decision-maker is satisfied that the purpose of the applicant, whatever it is, does not fall within the prohibited purpose, that is enough. The Tribunal appears to have misunderstood the requirement of "genuine visit". Read as a whole, the Tribunal's reasons contain no indication that it did not accept that the applicant's purpose was what he said it was, namely "to apply for a business visa in order to develop and conduct a business activity [scil, after he had obtained such a visa]". So if that purpose was not as a matter of law a prohibited purpose it must have been a purpose "other than" such prohibited purpose. 28 The application will be allowed and the decision set aside and remitted to a Tribunal differently constituted. There will be an order that the respondent pay the applicant's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Solicitor for the Applicant: Erskine Rodan & Associates
Solicitor for the Respondent: Australian Government Solicitor
Saravanan
Minister for Immigration and Multicultural Affairs