Yao v Minister for Immigration and Ethnic Affairs

This is an application for review by the Court of a judicially reviewable decision within the meaning of s 475 of the Migration Act 1958 (Cth) ("the Act"). The decision in question is a decision of the Immigration Review Tribunal ("IRT") made on 29 April 1997, whereby the IRT affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse the applicant a subclass 414 Business (temporary) visa. BACKGROUND The following facts are taken from the reasons for decision of the IRT. The applicant is a Korean citizen who was born in Korea on 17 May 1960. He is married and has two children. He arrived in Australia on 25 March 1993. At that time, he held a class 670 visitors Australia entry visa which had been issued on 11 December 1992 for one year for multiple travel. It permitted stays of three months on each entry. Upon the applicant's arrival in Australia he was granted an entry permit for temporary stay until 25 June 1993. On 24 June 1993, the applicant lodged an application to remain permanently in Australia on "special need relative" grounds. This application had not been determined when, on 13 March 1995, the applicant applied for the temporary business visa with which this application is concerned. LEGISLATIVE BACKGROUND Section 29 of the Act authorises the Minister to "grant a non-citizen permission, to be known as a visa", to remain in Australia. Section 30 of the Act provides that visas may be either permanent or temporary. A temporary visa may authorise a non-citizen to remain in Australia: "(a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status." Section 31 of the Act provides for different classes of visas, and for regulations to be made which prescribe criteria for a visa or visas of a specified class. Regulation 2.01 of the Migration Regulations provides as follows: "For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and (b) the following classes: (i) transitional (permanent); and (ii) transitional (temporary)." The class of visa for which the applicant applied on 13 March 1995 was a Business (Temporary) Visa (Class TB) Subclass 414 (Specialist) visa ("subclass 414 visa"). Criteria for the subclass 414 visa as at 13 March 1995 were set out in Schedule 2 of the Migration Regulations, in Part 414. Such criteria incorporated by reference certain criteria from Schedule 3 of the Migration Regulations, namely, criteria 3002, 3003, 3004 and 3005. On 1 November 1995, the subclass 414 criteria, including criteria 3002, 3003, 3004 and 3005, were amended. Statutory Rule No 76 of 1996, which amended the Migration Regulations, deleted from the Migration Regulations Part 414 of Schedule 2. It provides that an application for a Business (Temporary)(Class TB) visa that had not been finally determined within the meaning of subsection 5(9) of the Act before 1 August 1996 must be decided in accordance with the criteria that applied to the application on 31 July 1996. Section 5(9) of the Act provides as follows: "For the purposes of this Act, an application under this Act is finally determined when either: (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or (b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed." Part 5 of the Act provides, amongst other things, for review of certain decisions by the IRT. As at 1 August 1996, the applicant's application for a Business (Temporary)(Class TB) visa had not been finally determined. The decision of the delegate of the Minister had been affirmed by a review officer of the Migration Internal Review Office on 13 December 1995, and an application for review by the IRT had been made on 22 December 1995. A decision on that application to the IRT had not been delivered by 1 August 1996. REASONS OF THE IRT The IRT reviewed the changes made to the prescribed criteria for a subclass 414 visa. It noted: "The transitional provisions of Statutory Rule No 76 of 1996, which effected the amendments, provide that applications for subclass 414 visas which were not finalised prior to 1 August 1996 are to be determined according to the provisions of subclass 414 of Schedule 2 as they stood at 31 July 1996." The IRT purported to set out in its reasons for decision the provisions of Part 414 of Schedule 2 of the Migration Regulations as in force on 31 July 1996 so far as they were relevant to the application. In fact, the provisions which it set out were those in force between 1 September 1994 and 31 October 1995. However, nothing in the event turns on the differences between the two sets of provisions. Each of the two sets of provisions included a paragraph 414.211(e), in the same terms. Such paragraphs incorporated by reference the Schedule 3 criteria 3002, 3003, 3004 and 3005. The IRT concluded that the only real issue before it was that of whether the applicant was able to meet the requirements of paragraph 414.211(e) of Schedule 2 of the Migration Regulations. It set out in its reasons for decision the Schedule 3 criteria as in force as at the date of the applicant's application (ie 13 March 1995) and as in force on 31 July 1996. However, it appears to have regarded the criteria as in force as at 13 March 1995 as those relevant to its consideration. It concluded that the applicant could not meet the requirements of either criteria 3002 or 3003 of the Schedule 3 criteria.