Khanna v Minister for Immigration
[2004] FMCA 53
•27 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHANNA v MINISTER FOR IMMIGRATION | [2004] FMCA 53 |
| MIGRATION – Business migration – review of Migration Review Tribunal decision – meaning of “in Australia”. Acts Interpretation Act 1901 (Cth), s.15AA Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 |
| Applicant: | CHANDER KHANNA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1211 of 2003 |
| Delivered on: | 27 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Howen |
| Solicitors for the Applicant: | Ward Maxwell & Co. |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to this Application in the sum of $4650.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1211 of 2003
| CHANDER KHANNA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal, affirming the decision of the Delegate of the Respondent Minister not to grant to the Applicants Business Skills (Residence)(Class BH) visas. The decision not to grant the visa is based on the fact that the primary applicant, Mr Khanna, has not met the criterion in clause 845.212 of Part 845 of Schedule 2 to the Migration Regulations 1994.
Clause 845.212 requires an applicant 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 respondent’s records indicate that during the twelve months immediately prior to lodging his application, Mr Khanna had been out of Australia for a total of 252 days, meaning that he had only been physically situated in Australia for 113 days during the relevant period. The Migration Review Tribunal found that even if the Tribunal were satisfied that the applicant had legitimate reasons for being out of Australia for that period of time during the twelve-month period, the Tribunal had no power to waive the operation of clause 845.212.
The applicant submits that the Tribunal has applied the wrong test, by misunderstanding the meaning of the requirement set out in clause 845.212.
Background
The applicant first came to Australia in August 1996. He has come and gone on several occasions, usually on a Temporary Business Entry (Class UC) visa, subclass 456 (Short Stay) or on a Bridging visa. On 23rd July 1998, the applicant was granted a Temporary Business Entry (Class UC), subclass 457 (Long Stay), which was valid for four years. On 19 July 2002, shortly before the expiry of his Temporary Business Entry visa, the applicant applied for the Business Skills (Residence) (Class BH) visa, which is the subject of this application. He included his wife and two children in that application.
The applicant has been involved in two businesses since April 2000, Pinnacle Pharmaceuticals Pty. Ltd. And Zifam Pty. Ltd. His wife and children reside with him in Australia. The applicant himself has been absent from Australia on a number of occasions since 19 June 2001, being 12 months before the date he lodged the application, for periods of between 20 and 45 days. He asserts that he was still occupied in managing and operating his business on a daily basis, even though he was out of the country.
On 13 August 2002, the delegate of the respondent informed the applicant that his application had been refused, on the basis that he had not been in Australia as the holder of a temporary visa for at least 9 months during the period of 12 months immediately preceding the making of the application.
The applicant applied to the Migration Review Tribunal for a review of the delegate’s decision. On 19th May 2003 the Migration Review Tribunal affirmed the decision of the delegate not to grant the visa.
Issues
The requirement to be in Australia for at least 9 months out of the 12 months immediately prior to the making of the application is an essential criterion. The Federal Court has held, in Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596, that, if one essential criterion has not been satisfied, then the Tribunal is not obliged to make a finding in relation to any other criteria.
The applicant contends that the Tribunal has used the wrong test in relation to clause 845.212, by interpreting the words “in Australia” as meaning “physically in Australia” and then applying a mathematical test in adding up the number of days that the applicant spent outside the Commonwealth of Australia during the relevant time.
The applicant, through his counsel, Mr Howen, submits that the correct approach is not to interpret the words in a literal fashion, but to apply the purposive approach, as recognised by section 15AA(1) of the Acts Interpretation Act 1901 (Cth). By applying the purposive approach, the Court would find that the words “in Australia” would mean “ordinarily resident in Australia.”
Mr Howen submits that the evidence clearly supports the proposition that the applicant is ordinarily resident in this country, even though he spent so much time out of the country, travelling on business. The applicant’s family is currently living in Australia, and he appears to have sold property in India before moving to Australia. His family does not travel overseas with him. The applicant travels for the purpose of facilitating his business, which is involved in the export of pharmaceutical products overseas. Mr Howen described his client as one “who runs his business out of a briefcase in the QANTAS Business Class Lounge.”
In support of this proposition, Mr Howen relied on the decision of the High Court in Mills v Meeking & Anor (1990) 91 ALR 16. In that case, Mason CJ, and Toohey J, (with whom Brennan J agreed) said in a joint judgment at page 21:
“If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to the words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended: see generally Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151; 147 CLR 297 at 304-5, 320-1; also Catlow v Accident Compensation Commission (1989) 63 ALJR 619 at 622; 87 ALR 663 at 668. This legislation is not relevantly ambiguous or uncertain.”
The applicant also relies on the decision of Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781, where the Court considered the operation of section 15AA of the Acts Interpretation Act 1901 (Cth). Section 15AA says this:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
Lindgren J pointed out that the provision was mandatory and did not require there to be any obscurity or ambiguity. What there has to be is a situation where there are two competing constructions “one which does, and one which does not, promote the purpose or object underlying ‘the Act’”.[1]
[1] At paragraph 66 of the judgment.
The applicant argues that a construction that the words “in Australia” mean “ordinarily resident in Australia” is a construction that promotes the purpose or object underlying the Migration Act. The applicant’s written submission argues that neither the Act nor the Migration Regulations provide a definition of the words “in Australia”.
The applicant submits that there are two elements that must be present to find that a person is usually resident in a country:
a)a physical presence in a particular place; and
b)an intention to treat that place as home, at least for the time being.
The applicant relies on Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241, and Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1523. Burchett J held in Re Vassis Ex parte Leung (1986) 64 ALR 407 that the question where a person was ordinarily resident was a question of fact. If a man’s home was in Australia a mere temporary absence would not prevent his being “ordinarily resident in Australia”.
Mr Howen submitted for the applicant that a literal construction of the words “in Australia” would make it impossible for a person in the position of the applicant to carry on an import-export business. The Government clearly sees a benefit in the establishment of export businesses such as that run by the applicant. The applicant is a substantial exporter of pharmaceutical goods. The Migration Review Tribunal, he submitted, had asked the wrong question when conducting its review. The test is not, he submitted, “Are you sitting at your desk in Rydalmere?[2]” but “Are you continuously involved in the running of your business?”
[2] A suburb of Sydney
For the respondent, Mr Smith of counsel submitted that the interpretation urged on the Court by the applicant is not open. The words “has been in Australia…for at least 9 months” are perfectly clear and do not carry any concept of residence in them. The words “in Australia” and “Usually resident in Australia” have two distinct meanings.
The words “in Australia” are defined by reg. 1.03 as meaning “in the Migration Zone.” The words “usually resident in Australia” are used elsewhere in the Regulations, such as in reg. 1.15. As such, he submits, the words “usually resident” have been placed in the regulations where the drafters have seen fit to do so.
Mr Smith further submitted that the purpose of making the regulation was to allow people with a business to stay permanently in Australia. It is not an absurd or capricious meaning to say that a person has to stay in the country for 9 out of the previous 12 months. If the applicant does not have to be in Australia to carry on the person’s business, does the applicant have to be in Australia at all?
Mr Smith also referred to the decision in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (supra), pointing out that the requirement for the use of section 15AA of the Acts Interpretation Act is that there should be two separate constructions of the words or phrase. Here, he submitted, there is only one.
Conclusions
After considering the submissions and reading the authorities quoted by counsel, I am of the view that the meaning of the words “in Australia” as they appear in Clause 845.212 should be interpreted as having their ordinary English meaning, so as to mean that the applicant must be physically present in Australia, ie, the Migration Zone (see reg. 1.03). It does not appear to me to be permissible to import the meaning of “usually resident in Australia”.
As Dawson J, in his dissenting judgment in Mills v Meeking (supra) pointed out, referring to the decision of Gibbs CJ in Cooper Brookes (Wollongong) Pty. Ltd. V FCT (supra), if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning. In my view, the words of Clause 845.212 are clear and unambiguous, even if they are inconvenient to the applicant in this case.
I do not consider that the applicant can gain any comfort from the provisions of section 15AA of the Acts Interpretation Act, either. Whilst, as Lindgren J pointed in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (supra), section 15AA is mandatory and does not depend for its operation on the existence of some obscurity or ambiguity, it does require that there should be two competing constructions. Here, there is only one. The construction urged on the Court by the applicant, namely that “in Australia” means something different, is not a competing construction at all, in my view. It is merely an interpretation that would suit the applicant, by not requiring him to have been physically present in Australia at the relevant time, but ordinarily resident in Australia, which is quite different.
It appears to me that the Migration Review Tribunal did not fall into error by applying the wrong test when considering the applicant’s application. The Tribunal did not misunderstand the requirement of clause 845.212 by applying the ordinary meaning of the words “in Australia”. The Tribunal correctly interpreted those words as meaning physically situated in Australia rather than being ordinarily resident in Australia.
It follows that there is no reviewable error.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 3rd February 2004
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