Khanna v MIMIA

[2005] HCATrans 150

[2005] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S182 of 2004

B e t w e e n -

CHANDER KHANNA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 2.34 PM

Copyright in the High Court of Australia

MR M.D. SEYMOUR:   May it please the Court, your Honours, I appear for the applicant.  (instructed by Newman & Associates)

MR S.B. LLOYD:   May it please, your Honours, I appear in this matter for the Minister.  (instructed by Clayton Utz)

GUMMOW J:   Yes, Mr Seymour.

MR SEYMOUR:   Your Honours, we say this application raises a matter of general importance.  The error of the Tribunal and, with respect, that of the Federal Magistrate and Justice Dowsett, who in this case was exercising the jurisdiction of the Full Federal Court, was the same, we say, primarily because the Federal Magistrate and Justice Dowsett adopted the construction put on the criteria of the visa application without further explanation of why that construction should be adopted, so before I can take your Honours to the germane passage of the judgment of Justice Dowsett, if I can take your Honours to the decision of the Tribunal first. 

At page 3 of the court book your Honours will see in paragraph 10 – the factual background was that at the time of the application the applicant held a “subclass 457 (Business (Long Stay))” visa which was valid until 23 July 2002 at that time making the application for the subclass 845 (Established Businesses in Australia) visa.  Now, if your Honours turn to page 6 of the court book under the heading “FINDINGS” your Honours will see the Tribunal set out in graphical form some dates in which the applicant was in and out of Australia creating a total.  The reason for that ‑ ‑ ‑

GUMMOW J:   We have read it all – but what do you say looking at page 25 of the application book.  His Honour sets out the text:

‘The applicant has been in Australia -

then at line 35, the:

use of the compound verb “has been” suggests a degree of continuity -

That seems, prima facie, right.

MR SEYMOUR:   Yes, it does, your Honour, and on a literal reading it would appear, prima facie, right but, your Honour, in my submission, the error that was at first created by the Tribunal and then subsequently adopted by the Federal Magistrate and his Honour below was to take that criteria out of the context of the entire criteria set out in the subclass and indeed, your Honours, I had sent up to the Court Statutory Rules 1995 No 38.  Has that made its way to the Court’s files?

GUMMOW J:   We have that, yes.

MR SEYMOUR:   Indeed, your Honours, this was the relevant amendment to the Migration Regulations which inserted the subclass 845 as well as subclasses 840 to 844, which have since been repealed, but your Honours will see there is a continuity of drafting in each of the subclasses 840 through to 844.  The first criterion to be satisfied in each case is that the applicant is in Australia so for each of the other business type subclass visas, if I can call them that, the first criterion to be satisfied at least at the time that the application is made is that the applicant is physically in Australia.  That, in my submission, is different when this particular subclass which appears at page 380 of the photocopy that I have handed up, your Honours will see the criterion there does not appear as it does for each of the others in this relevant amendment.  The first criterion to be satisfied is that:

“The applicant holds a temporary substantive visa -

which this applicant did; which is other than a listed one, which this applicant did.  In my submission, the next criterion which was the relevant one under construction then takes on a different complexion when it is looked at in that context:

The applicant has been in Australia as the holder of the temporary substantive visa for at least 9 months during the period of 12 months immediately preceding the making of the application.

In other words, your Honours, we submit that the phrase is a compound one involving that the applicant be the holder of a temporary substantive visa for a given period of time, not that the applicant be physically present in Australia, because if that was in any way required, in my submission it would be similar to the other subclasses in requiring as a first criterion of satisfaction ‑ ‑ ‑

GUMMOW J:   You want to read “has been” as if it said “has entered Australia”.

MR SEYMOUR:   Well, in my submission, your Honour, what makes this subclass different ‑ ‑ ‑

GUMMOW J:    At least once.

MR SEYMOUR:   Well, what makes this subclass different is that the applicant does not have to be in Australia at the time the application is made.  All that is required is that they have been here and held the visa for the period of 9 months during the 12 months immediately prior.  I am supported in that construction, in my submission ‑ ‑ ‑

GUMMOW J:   So how do you connect “at least 9 months” - what, that he has held this status for at least 9 months?

MR SEYMOUR:   Yes, in my submission, that is so and, in my submission, that is supported by numerous considerations given the context of subclass 845 on its own, subclass 845 in the context of the relevant amendment and also because if the construction that has been imposed thus far is maintained, in my submission, it leads to quite absurd results.  Your Honours, the various ways of the construction of the subclass 845, in my submission, supports that criterion .212 simply requires that they – that is a status provision rather than a residency requirement is that it is consistent with the following criterion each of which qualify the status of the applicant.  So, criterion 845.213 requires that the applicant have an ownership interest.  Criterion .214 requires that they have assets in excess of 250,000 and that follows through.  In my submission, each of ‑ ‑ ‑

CALLINAN J:   Does that mean that an applicant under 845, on your construction, would always have to have some other form of visa than the one for which 845 makes provision?

MR SEYMOUR:   Yes, well criterion .211 requires that they hold a temporary substantive visa other than one listed.  Certainly, in this applicant’s case that was a temporary business visa and so, in my submission, there is a great deal of commonsense in my construction, with respect to the learned judges below, in the sense that to impose a quasi‑residency requirement would lead the Tribunal into asking itself many questions of fact of which it would be quite difficult to satisfy itself where a person comes in and out of the country, whereas, my construction or the submission that I put to your Honours on the construction of .212, the criterion there is simply one that the Tribunal can satisfy itself by looking at the visa as endorsed in a passport, which your Honours will see is the prescribed method for the giving of evidence which is prescribed in clause 845.711.  The way of giving evidence of holding the visa is simply to provide the label that is affixed in the passport.  So, in my submission, that supports the construction that I would put to your Honours. 

Now, your Honours, if I can also just for a moment take the construction that has been put on the clause by the courts below and just explore the limits of that construction for a moment.  If it is required of the Tribunal that they satisfy themself that a person has been in Australia for a given period of time, here 9 months out of 12, the term “month” as defined under the Acts Interpretation Act is a calendar month.  Now, in my submission, if a person is in and out of the country and say is within the country for 28 days and then happens to leave the country, well that would not be a calendar month and so it would not be counted as time for the purposes of this construction.

Now, in my submission, the Tribunal really is not being required to look into that depth of that level of factual analysis to determine if a person is eligible for this visa because there are much more important considerations which are namely those of does the applicant have a business, is the business beneficial to Australia, do they have assets.  Those are the kinds of consideration which would support a temporary business visa, not, in my submission, some quasi-residential requirement that they have been physically present in the country.

CALLINAN J:   The more natural way to put the proposition that you are putting is, the applicant has held for at least 9 months of the 12 months preceding the application.

MR SEYMOUR:   Yes.

CALLINAN J:   It would be a much more natural way to put it, would it not?

MR SEYMOUR:   Yes, it is, your Honour, and perhaps infelicity in the drafting of this clause is manifest by the fact that all other subclauses in this particular amendment had that requirement that the person be in Australia at the time and so because this one was different to each of the other subclasses in this particular amendment, perhaps there was infelicitous drafting at least in relation to this requirement.  In my submission, it is certainly open and arguable that the courts below have placed upon this criterion a construction which, in my submission, leads to quite absurd results and is not supported by the context of the criteria in the subclass as a whole. 

Your Honours, there was one further point that I would wish to make on that.  Yes, if your Honours turn to clause 845.22, your Honours will see that there are different criteria to be satisfied at the time that a decision is made than the criteria to be satisfied at the time that the application is made.  Now, your Honours will see in clause 845.221 that the applicant must, at the time of the decision, continue to satisfy from clause 845.213.  Now, your Honours, clause 213 takes up the ownership interests, but it does not take up the residency requirement.  So the context of that is that at the time of the application, if the construction put below is right, that a person be in

the country for a given period of time before the application is made but it is not so important when the decision is made.

In my submission, that does not support the construction put below but it does support my construction which is that simply the applicant have a status at the time the application is made.  It is less important that they have that status at the time the decision is made because their temporary substantive visa may well have expired by the time a decision is made and here, what is being applied for is a permanent visa, so they may well be on some form of bridging visa pending the determination of the decision.   So, in my submission, that is yet another construction of the criteria as a whole that supports a construction that is different to the one put below.  Your Honours, those are the submissions for the applicant.

GUMMOW J:   Yes, thank you, Mr Seymour.  We do not need to hear from you, Mr Lloyd.

The applicant seeks special leave to appeal from a decision of Justice Dowsett.  His Honour was exercising the powers of the Full Court of the Federal Court in an appeal from a decision of a Federal Magistrate upholding a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister.

The delegate’s decision was not to grant to the applicant a Business Skills (Residence) (Class BH) visa. The decision to grant the visa was based on the fact that the applicant could not satisfy clause 845.212 of subclass 845 of the relevant regulations under the Migration Act 1958 (Cth).

Clause 845.212 requires an application to show that:

The applicant has been in Australia as the holder of the temporary substantive visa for at least 9 months during the period . . . immediately preceding the making of the application.

The applicant had been physically present in Australia for 113 days only of the year preceding his application.

Counsel for the applicant has clearly put the considerations which are said to support a construction which would favour his client.  However, we see no error in the construction adopted below which gives effect to the ordinary meaning of the words used in the provision.  In those circumstances, the application for special leave is refused with costs.

We will now adjourn to 9.30 am on Monday, 21 March 2005 in Brisbane.

AT 2.49 PM THE MATTER WAS CONCLUDED