Khanna v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 692

FEDERAL COURT OF AUSTRALIA

Khanna v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 692

CHANDER KHANNA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 185 OF 2004

DOWSETT J
21 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 185 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	CHANDER KHANNA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	21 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 185 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	CHANDER KHANNA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	21 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The facts of the case appear sufficiently from the judgment under appeal, in particular at [5] and [6].  The appellant came to Australia in August, 1996 and has since come and gone on several occasions, using various visas.  On 23 July 1998, he was granted a Temporary Business Entry (Class UC), subclass 457 (Long Stay) visa, which was valid for four years.  On 19 July 2002, shortly before the expiry of that visa, he applied for a Business Skills (Residence) (Class BH) visa, which application is the subject of the present appeal.  He included on the application his wife and two children.  His wife and children reside with him in Australia. 

2. He had been absent from Australia on a number of occasions in the twelve months prior to the date of lodging his application.  Such absences were for periods between 20 and 45 days.  He asserted that he continued to manage and operate his business on a daily basis, even when he was out of the country.  His application was unsuccessful because the Minister considers that in order to satisfy the relevant visa criteria, he must have been in Australia for a period of nine months during the period of twelve months immediately preceding the making of his application.  It is the correctness of that view which is the subject matter of this appeal.

3. The relevant regulations appear in Schedule 2, particularly at cl 845.1 et seq.  In particular, cl 845.212 requires that:

   ‘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.’

4. The applicant was not in Australia, for at least nine months during the period of twelve months immediately preceding the making of the application.  On appeal, counsel has sought to demonstrate that the Minister’s interpretation of the regulation is incorrect.

5. It is submitted firstly that the regulation should be construed as requiring only that the applicant be in Australia at the time of the application and that he, at that time, be the holder of the relevant temporary substantive visa, having held that visa for at least nine months during the preceding period of the twelve months.  There are two difficulties with that interpretation.  The first is that cl 1104A in Schedule 1 deals specifically with the applicant’s geographical location at the time at which the application is made.  Paragraph 3(b) provides that he must be in Australia, but not in immigration clearance.  The second is that if this interpretation were intended, one would expect the regulation to be worded to the following effect:

   ‘The applicant, being in Australia and having held the temporary substantive visa for at least nine months during the period of 12 months.’

6. In other words, use of the compound verb “has been” suggests a degree of continuity consistent with the reading of cl 845.212, which was adopted by the magistrate and the Minister.  It is a view which I prefer. 

7. The second argument is that the magistrate erred in construing the regulation as requiring the applicant to have been physically in Australia for the relevant period of nine months.  It is said that the applicant need only be resident in Australia for the whole of that period.  It seems that the question of residence has never been addressed as a question of fact, but there is sufficient in the material to suggest that he is presently resident here.  The difficulty with the argument is that the regulation does not address residence.  It rather focuses upon geographical presence, or at least that is the natural meaning of the words.  As has been pointed out in argument, the various provisions refer expressly to residence where that status is deemed relevant.  See, for example, reg 1.05 and reg 1.15.  I am otherwise in agreement with the reasons given by the magistrate for dismissing this submission and need not add anything further.

8. The third submission is that the expression “in Australia” is capable of bearing possible meanings other than “physically in Australia”.  The alternative meaning urged was not expressly identified.  Reference was made to the decision in Smith v Campbell 19 Ves. Jun. 400. In that case, a testator had left;

   ‘The remains of my property of every description to be sent home as it may be realized and equally distributed among my nearest surviving relations in my native country Ireland.’

9. The question was whether or not relations not in Ireland would take.  The Master of the Rolls said at 568:

   ‘The words, it must be confessed, are in a degree ambiguous; admitting either construction; a restriction, implying that no relations, unless residing in Ireland, should take; or superadded description, only denoting the place of their residence.  The latter seems to me the true construction: for there is in the context nothing to show, that he contemplated any distinction between relations living in and out of Ireland; which is not put in contradistinction to any other country, but in a simple and absolute sense.  If a distinction of that kind had been present in his mind, his meaning would have been more clearly expressed.  He has not said “residing in Ireland” but simply “in Ireland”.  What would answer that description?  domiciled there; residing there at the date of his Will, or at the time of his death; or just returned there after a long absence?  If he had had it in contemplation to make residence in Ireland a condition, he would in some way have marked the sort of residence he required.  It is not probable, considering that he had himself been many years out of the kingdom, that he should have excluded those, who had imitated his example, and gone to seek their fortune in another country.

10. It seems to me that the effect of the decision in that case was to determine as a matter of construction, whether the intention of the testator was that the words ‘in my native country, Ireland’ describe the class of persons to take under the will or whether those words were surplusage.  It is not possible to see any such ambiguity in cl 845.212.  Quite clearly, the intention of the draftsman was to identify criteria for entitlement to a visa of the relevant class.  There is no reason why the words used in the regulation should not be given their natural meaning.

11. I was also referred to the decision in Kingsland v Haben, 90 Law Times 449.  That case concerned the expression ‘in any building’ used in connection with the construction or reconstruction of pipes, drains and other connections to sewers.  The use of the language to describe the relationship between sewerage pipes and a building has no immediate relevance, in my view, to the interpretation of the regulation with which we are presently concerned.  It is true that the Court concluded that the words ‘in any building’ were not necessarily limited to the physical limits of the building but might include things connected to the building.  I find little of assistance in that decision.

12. The words must be given their natural meaning.  There is no justification for any other course.  The appeal must be dismissed.  I order that the appellant pay the respondent’s costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             1 June 2004

Counsel for the Appellant:	Mr Evatt
Solicitor for the Appellant:	Ward Maxwell
Counsel for the Respondent:	Mr Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 April 2004
Date of Judgment:	21 April 2004