Second Appeal Ground
34 The second ground of appeal was premised upon its being permissible for the Tribunal to have considered United's business as a second "main business". The dismissal of the first ground of appeal and the business nomination limit found in the definition of "main business" in reg 1.11 have the necessary consequence that there was no error in the Tribunal's concluding that it was not able to consider United's business for the purposes of deciding whether it was satisfied that the Appellant met the visa criteria. This consequence was accepted by the parties and, in the court below, by the learned Federal Magistrate (reasons for judgement, para 54). The point was though fully argued. I conceive that it is appropriate to address it in the event that the conclusion which I have reached in respect of the first appeal ground is in error. The learned Federal Magistrate dealt with the point on a similar basis.
35 The central point raised is, what is the true meaning and effect of the words "continues to" as they appear thus in cl 845.221: "the applicant continues to satisfy the criteria in clauses 845.213 to 845.218"?
36 On the assumption that it was not otherwise precluded by considering United's business to be a "main business", and having referred to cl 845.213, cl 845,216, cl 845.221, and the definition of "main business", the Tribunal observed:
[T]he definition of main business must be met by the business the applicant has an ownership interest or is the owner of an interest, both at the time of the application and at the time of this decision. For these reasons the Tribunal finds that United is not a main business as it does not meet the definition of main business as the visa applicant did not have an ownership interest in United for at least 18 months immediately preceding the making of the visa application. Therefore the applicant does not have an ownership interest in one or more established main businesses, at the time of this decision, and the Tribunal finds accordingly. Further, the visa applicant is not involved in the management of a business or makes decisions affecting that business as the owner of an interest in a main business or main businesses in Australia, at the time of this decision, and the Tribunal finds accordingly. [Italics and emphasis in original]
37 In the Federal Magistrates Court attention centred upon whether the words "continues to" ought to be afforded the meaning given to those same words in another clause of Sch 2 to the Regulations by Allsop J (as his Honour then was) in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 (Rao's Case)or that which commended itself to a Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 (Xiang's Case) in respect of like words in yet another clause in Sch 2 to the Regulations. In the result, the learned Federal Magistrate considered that contextual similarities as between the words as used in cl 845 and as used in the provisions considered in Rao's Casefavoured following the construction of "continues to" adopted in that case rather than, as the Appellant had submitted, that given to those same words by the Full Court in Xiang's Case
38 Put succinctly, the differing positions are these. The Appellant's submission, said to be supported by Xiang's Case, was that there was nothing in the language of either cl 845.213 or cl 845.221 which required that, in the interval between date of application and date of decision, a visa applicant have an interest in a particular business or indeed any business. The Appellant noted in submissions, as is the case, that the learned Federal Magistrate had made reference to the word "continuous" in his reasons for judgement (para 67 and para 81) in a context which suggested a belief by him that this word appeared in cl 845,221, which is not the case. This error, it was submitted, may have influenced his Honour's interpretative preference. It was further part of the Appellant's submission that the words "of that kind" in cl 845.213 (b) indicated that the "main business" at the time of decision need not be one and the same as that at the time of application.
39 The Minister's submission, said to be supported by Rao's Case, was that a visa applicant had to maintain a direct and continuous involvement in the main business (or businesses) nominated at the time of application and throughout the interval up to and including the date of decision; Xiang's Casewas said to be distinguishable.
40 The following passage from Xiang's Case, which was cited by the learned Federal Magistrate, sets out the views of the Full Court with respect to the meaning of the words "continues to", as well as that earlier voiced by Allsop J in Rao's Case:
[8] The tribunal also fell into error in the meaning it placed on the word "continues" in subcl 806.221 of the Regulations. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal "[t]o hold otherwise would deny any use or purpose to the inclusion of the word 'continues' in the regulations". Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213 of the Regulations. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application.
[9] Returning to the meaning of the word "continues" in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a "special need relative" both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb "continues" and not the adjective "continuing". Second, it is plain that the word "continues" is not concerned with any activity on the part of the visa applicant, but rather with the applicant's status; a status which has a temporal condition.
[10] Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a "special need relative". That is to say, the applicant "continues" that status if the applicant still is a "special need relative" at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a "special need relative" at the time of the application and continues to satisfy that condition on the day of decision would be a "special need relative" throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755.There on a slightly differently worded regulation Allsop J decided that the word "continues" was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word "continues" was used in a different context. This issue need not be resolved.
41 The relevant visa class considered in Xiang's Case is evident from the passage quoted. The "slightly differently worded regulation" considered by Allsop J in Rao's Case was that part of the Regulations which governed eligibility for the Student (Temporary) (Class TU Subclass 560) visa sought by the visa applicant in that case. One condition to which that applicant's existing visa was subject was condition 8105, which prescribed that the holder must not engage in work in Australia (other than in relation to her course of study or training) for more than 20 hours per week during any week when the institution at which the holder was studying was in session. Within Subclass 560, cl 560.21 set out the criteria to be satisfied at the time of application. Subclause 560.22 set out the criteria to be satisfied at the time of decision. Subclause 560.213 provided:
If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
In turn, cl 560.227 provided:
If the application is made in Australia, the applicant continues to satisfy the criterion in cl560.213. [Emphasis added]
There was a finding of fact at tribunal level in Rao's Case that, in the interval between date of application and date of decision, the visa applicant had consistently breached the working hours limitation.
42 The learned Federal Magistrate was keenly aware of the authority of a decision of a Full Court of this Court, if in point, as the following passage reveals. I cite it not only to highlight this but also because it evidences a correct understanding by his Honour of the language actually employed in cl 845.221 and the essence of why his Honour preferred the meaning given to the words "continues to" in Rao's Case:
[75] It follows that for the decision in Xiang to be binding the context in which the word "continues" is used has to be materially similar to the context in that case. In my view for reasons which follow the context in which the word "continues" appears in clause 845.221 is not similar to the context to which the word appeared in clause 806.221.
Though His Honour's use of the word "continuous" both before and after this passage was unfortunate, this passage is pivotal in his reasons for judgment. Noting this, and reading the reasons as a whole, I am not persuaded that the erroneous references to "continuous" were material to his Honour's interpretative conclusion. What was material was the learned Federal Magistrate's apprehension that it had been recognised in Xiang's Case that the meaning to give to the word "continues" may depend on whether it was used in relation to a status or an activity. It was because his Honour considered that it was used in the latter context that he concluded that, in this regard, there had been no error made by the Tribunal.
43 The requirement for a duality of satisfaction by a visa applicant of particular criteria at both the time of application and the time of decision is not unique to cl 845, nor even to those considered in Xiang's Case and Rao's Case. It is a feature which permeates the Regulations. It is a further permeating feature that the verb "continues" is employed so as to require satisfaction on the part of the administrative decision maker at the time of decision that a visa applicant "continues to" satisfy nominated criteria which were first required to be satisfied at the time of application.
44 Against this background, it is highly unlikely, in my opinion, that it was intended by the Governor-General-in-Council when making and amending the Regulations that the meaning, as opposed to the effect in context, of "continues to" would vary throughout those regulations.
45 Though, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 at [5] per Hely J.
46 Xiang's Case is in point to the extent that the Full Court has counselled that "continues" is a word the effect of which depends on the context in which it is used. It must not, as the Full Court stated in the passage quoted above, be read in isolation. The Full Court noted usages of the word in respect of both an activity and a status. As it happened, it was in the latter context that it was used in Xiang's Case to the end that there it did not carry with it any requirement that the status be held in the interval between application date and decision date by the visa applicant. In Rao's Case, as the Full Court noted, the word "continues" was used in a different context.
47 In those parts of the Regulations considered in Xiang's Case and in Rao's Case, as well as in the present case, "continues" is used as a transitive verb. So used, the sense of the word is "to carry on, keep up, maintain, go on with, persist in (an action, usage, etc.) (Oxford Dictionary, 2nd Ed, 1989) or "to go forwards or onwards in any course or action; keep on" (Macquarie Dictionary, Online Edition). When used for the purposes of cl 845.221 in conjunction with "a status which has a temporal condition", it requires nothing more than that that status is possessed at the time when the assessment falls to be made, relevantly, at the time when the administrative decision in respect of the visa application is made. If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily "continues" to have that status. Furthermore, the visa applicant will "continue" to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant "continues to" meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.
48 The point may illustrated by reference to the operation of cl 845.221 with respect to the "continues to satisfy" criteria referred to in that clause.
49 The criterion in cl 845.212 is status based and also temporally focussed by reference to the time of application. If that criterion is met at the time of application, it will "continue" to be met at the time of decision. I shall pass over cl 845.213 for the moment because it requires more detailed analysis in light of the circumstances of this case and the submissions made on the appeal.
50 Subclauses 845.214 and 845.215 are status based by reference to assets and, in part, temporarily limited by reference to the period ending immediately before the application is made. Insofar as they are not temporally limited in that way, asking whether the visa applicant "continues to" meet them involves in any event no inquiry as to the position obtaining during the period which has elapsed since the time of application, only what is the position at the time of decision. Subclause 845.216 entails a status ("as the owner of an interest") but a status possessed while engaging in activity. However, there is a temporal limitation in respect of that activity, "In the 12 months immediately preceding the making of the application". In light of that limitation, if there is satisfaction that the visa applicant met this criterion at the time of the application, there must necessarily at the time of decision be satisfaction that the applicant "continues to satisfy" this criterion.
51 Subclauses 845.217 and 845.218 are different. Each of them is activity focussed; "overall had a successful business career" and "has a history of involvement". Deciding whether a visa applicant "continues to satisfy" these criteria will necessarily involve examining what that applicant has been doing in whatever interval has elapsed between the time of application and the time of decision. The conclusion one reaches as to the position which obtained at the time of application in respect of these criteria may differ from that reached at the time of decision because of what has occurred in the interval.
52 I apprehend that each of these conclusions as to the meaning and effect of "continues to" is consistent with the Full Court's observations in Xiang's Case.
53 These are Delphic qualities attending ascertaining the effect of cl 845.221 in relation to continued satisfaction of cl 845.213, even with the benefit of the guidance offered in Xiang's Case. As a matter of first impression, cl 845.213 appears to be status based in the sense that it looks to the possession of an "ownership interest" in a "main business" or businesses. Subclause 845.213(a) carries a temporal limitation which looks to the 18 months immediately preceding the application. There is though a further and cumulative temporal limitation itself utilising the transitive verb "continues" found in cl 845.213(b).
54 The evident concern of the further temporal limitation in cl 845.213(b) is that the "ownership interest" in one or more "main businesses" over the period of 18 months immediately preceding the application must be maintained, "continue", throughout whatever period elapses thereafter until the application is made. In other words, the intention, reflected in the language of cl 845.213(b), is that there should be no gap in the holding of an "ownership interest".
55 Further, the continued interest must be one "of that kind". In context, the reference in cl 845.213(b) to "of that kind" is, in my opinion, to be read as a reference to the "main business" or businesses referred to in cl 845.213(a). The use of "kind" in drafting might in other contexts admit of a more generic coverage. The embrace of the word has given rise in other contexts to sharp divisions of judicial opinion, see, for example, Bird v The Commonwealth (1988) 165 CLR 1. Here though, "kind" is governed not by an indefinite but by a very specific definite article, "that". It is also necessary to recall that "main business" is itself a defined term. One feature of that definition, to which I have already referred, is a limit on the number of businesses which may be nominated as a "main business". To give "of that kind" an open ended, generic construction so as to embrace yet another business, albeit one akin to that or those nominated, would be to subvert:
(a) The limitation found in the definition of "main business"; and
(b) The very managerial particular involvement, found in para (1)(b) of the definition, required for a business to be a "main business".
56 There is no obvious reason for such subversion in respect of this particular visa subclass. On the other hand, construing "of that kind" as a reference to the "main business" or businesses referred to in cl 845.213(a) sits comfortably with a subclass the intent of which seems to be to provide a basis for the granting of a visa to those (and to the family of those) who have made a significant and continuing investment in and managerial involvement with at least one and not more than two nominated main businesses in Australia.
57 Another feature of para (1)(b) of the definition of "main business" in reg 1.11 of the Regulations is that it is activity related. Furthermore, the language employed in respect of the activity is "maintains or has maintained continuous involvement". Necessarily, the determining of whether at the time of decision the requirements of this paragraph are met requires an assessment of an activity over a continuum. What has the visa applicant been doing in relation to the "main business" or businesses since the date of application? Further, the requirements specified in the paragraphs of the definition are cumulative.
58 Even though the other criteria in the definition of "main business" in reg 1.11 of the Regulations are status based with the consequence in respect of satisfaction as at date of decision described in Liang's Case, the criterion in para 1(b) is not. To satisfy that criterion as at the date of decision, the visa applicant must do more than just be engaging in that activity at that time.
59 It follows that, because not all paragraphs in the definition of "main business" in reg 1.11 of the Regulations are activity related, I am not in complete agreement with the learned Federal Magistrate's observation in respect of so much of the Tribunal proceeding that related to United (reasons for judgment, para 84) that, "the issue was not the visa applicant's status but rather his activity". However that may be, the learned Federal Magistrate upheld (reasons for judgment, para 85), as not attended by legal error, the Tribunal's conclusion (reasons, para 34) that the Appellant did not have an interest in a main business at the time of the decision. Having regard to the activity related aspect of "main business" and when United was established, this conclusion flowed inevitably from what I regard as the correct meaning and application of cl 845.221, read with cl 845.213. Further, and again as found by the Tribunal (ibid) the Appellant did not have (and could never have had) an ownership interest in United in the 18 months preceding the date of the visa application. Thus, were it necessary to decide the appeal by reference to ground 2, I should dismiss it, albeit for reasons which differ somewhat from those of the learned Federal Magistrate.
60 It is difficult in the circumstances not to feel some sympathy for the Appellant with the outcome. In the period of time that it ultimately took to decide his application, business events were not static. Had the application been decided when each of GNI's businesses was operating, the fate of the application may well have been different. Equally though, as the process elongated it was a matter for the Appellant as to whether or not GNI continued to operate the two nominated "main businesses". If it did not, then the provisions of the Regulations governing this subclass were unforgiving.
61 For these reasons the appeal must be dismissed, with costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.