Lee v MIMAC
[2013] FCA 854
•8 August 2013
FEDERAL COURT OF AUSTRALIA
Lee v Minister Immigration, Multicultural Affairs and Citizenship [2013] FCA 854
Citation: Lee v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 854 Appeal from: Lee & Ors v Minister for Immigration & Anor [2013] FCCA 396 Parties: CHAE HEE LEE, MYUNG KYU KIM, MIJUNG KIM and WOOMIN KIM v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: QUD 291 of 2013 Judge: LOGAN J Date of judgment: 8 August 2013 Catchwords: MIGRATION – judicial review – appeal from Federal Circuit Court of Australia – Migration Review Tribunal – appeal against decision of Minister’s delegate, as affirmed by the Migration Review Tribunal and the Federal Circuit Court of Australia, not to grant the appellants a Class DF – Business Skills (Residence) Visa – first appellant did not meet criteria in clause 892.215 of the Migration Regulations 1994 (Cth) as she had not been resident in Australia for at least one year in the two years before her relevant visa application – the second appellant (the first appellant’s husband) did satisfy clause 892.215 of the Regulations – first appellant was nominated as the primary applicant seeking to satisfy the criteria for the grant of the visa pursuant to paragraph 1004B(3) – whether the primary criteria in paragraph 892 of the Migration Regulations capable of being satisfied by one other than the primary applicant in light of note appearing at clause 892.2 which states that the primary criteria must be satisfied by at least one member of the family unit
Held: the applicant seeking to satisfy the primary criteria pursuant to paragraph 1004B of the Migration Regulations 1994 (Cth) must satisfy the criteria of clause 892.215 personally – appeal dismissed
Legislation: Acts Interpretation Act 1901 (Cth) ss 2, 13
Legislative Instruments Act 2003 (Cth) s 6
Migration Act 1958 (Cth) ss 30, 31
Migration Regulations 1994 (Cth) Sch 2Cases cited: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited Date of hearing: 8 August 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Appellants: Mr L Boccabella Solicitor for the Appellants: A.S. Torbey & Associates Counsel for the Respondents: Ms AL Wheatley Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 291 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CHAE HEE LEE
First AppellantMYUNG KYU KIM
Second AppellantMIJUNG KIM
Third AppellantWOOMIN KIM
Fourth AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
8 AUGUST 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the first respondent’s costs, fixed in the sum of $6,270.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 291 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CHAE HEE LEE
First AppellantMYUNG KYU KIM
Second AppellantMIJUNG KIM
Third AppellantWOOMIN KIM
Fourth AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
8 AUGUST 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
An application was made by the appellants to the Minister for Immigration, Multicultural Affairs and Citizenship (the first respondent), on 10 December 2010 for a Class DF – Business Skills (Residence), Subclass 892 – State/Territory Sponsored Business Owner Visa (Class DF Business Skills (Residence) Visa). On 3 March 2011, a delegate of the Minister decided to refuse their application for those visas. The appellants then applied to the Migration Review Tribunal (Tribunal) for a review of that refusal decision. On 2 January 2013, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant to the appellants’ Class DF Business Skills (Residence) Visas.
The appellants then sought the judicial review of the Tribunal’s decision by what is now known as the Federal Circuit Court. On 31 May 2013, that court dismissed the appellant’s application for judicial review. It is from the judgment of that court that the appellants appeal to this court. The grounds of appeal are that:
1.The Federal Circuit Court failed to properly interpret and apply paragraph 1004B of Schedule 1, and the criteria contained in Schedule 2 to the Migration Regulations 1994 (Cth) in relation to the Subclass 892 State/Territory Sponsored Business Owner Visa.
2.A proper interpretation of those provisions would have lead to the conclusion that the Tribunal erred in its interpretation of those provisions.
I should observe that a Subclass 892 State/Territory Sponsored Business Owner Visa, as it is referred to in ground 1 of the grounds of appeal, is a particular type of Class DF Business Skills (Residence) Visa. That type of visa is a permanent visa; in other words, one which in terms of s 30 of the Migration Act 1958 (Cth) (Migration Act) enables its holder to travel to and enter Australia, and to remain here indefinitely. By s 31 of the Migration Act it is provided that there are to be prescribed classes of visa. A Class DF Business Skills (Residence) Visa is one such prescribed class of visa.
Section 46 of the Migration Act makes provision for what is, for the purposes of the Migration Act and the regulations, a valid visa application. It is common ground in this case that the appellants have made a valid visa application. It does not follow from this, in my view, that the provisions in Schedule 1 of the Migration Regulations 1994 (Cth) (Migration Regulations) are entirely irrelevant. Indeed, the grounds of appeal acknowledge as much in their reference to paragraph 1004B of Schedule 1 of the Migration Regulations. It is necessary now to set out certain material provisions, or certain material parts, of the regulations:
Clause 1004B of the Migration Regulations relevantly provides:
1104B Business Skills (Residence) (Class DF)
(1) Forms:
(3) Other:
(a)Application must be made in Australia, but not in immigration clearance.
(b)Applicant seeking to satisfy the primary criteria must be in Australia, but not in immigration clearance.
(c)Applicant seeking to satisfy the secondary criteria may be in or outside Australia, but not in immigration clearance.
(d)Applicant seeking to satisfy the primary criteria for the grant of a Subclass 890 (Business Owner) visa must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any), or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.
(e)Applicant seeking to satisfy the primary criteria for the grant of a Subclass 891 (Investor) visa must hold a Subclass 162 (Investor (Provisional)) visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.
(f)For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa, applicant must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any), or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.
(g)Applicant seeking to satisfy the primary criteria for the grant of a Subclass 893 (State/Territory Sponsored Investor) visa must hold a Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.
(h)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Business Skills (Residence) (Class DF) visa may be made at the same time and place as, and combined with, the application by that person.
(i)For applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) or 893 (State/Territory Sponsored Investor) visa:
(i)applicant must be sponsored by an appropriate regional authority; and
(ii)form 949 must be signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
Subclass 892 - State/Territory Sponsored Business Owner
892.1 Interpretation
Note 1 appropriate regional authority, AUD, ownership interest and qualifying business are defined in regulation 1.03 and main business is defined in regulation 1.11.
Note 2 As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.
Note 3 Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12(1) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa.
Note 4 There are no interpretation provisions specific to this Part.892.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
In both paragraph 1104B(3) and paragraph 892.2 one finds reference to “primary criteria”. Paragraph 2.03 of the regulations informs one that:
2.03 Criteria applicable to classes of visas
(1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulation 2.03A, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
…
So it is that the paragraphs which fall under paragraph 892.2 in Schedule 2 of the Migration Regulations are primary criteria. In contrast, those which fall under paragraph 892.3 in Schedule 2 are secondary criteria. The appellants’ visa application failed before the Minister’s delegate and the Tribunal, because of a conclusion reached by each that it was necessary in the circumstances of the application and having regard to the regulations for the first appellant, Mrs Lee, materially to satisfy clause 892.215, and that she did not satisfy the criterion there found because, during the period 11 December 2008 to 10 December 2010, she had been present in Australia as the holder of a class UR visa for 295 days. That is a period some 70 days short of the one year necessary in order to meet the criterion set out in clause 892.215(a).
In his reasons for judgment, the learned Federal Circuit judge observed at paragraphs 47 to 50:
47The scheme of the Act and the Regulations as a whole indicates that for any application for a Business Skills (Residence) (Class DF) subclass 892 visa there will be an applicant or applicants, identified in the visa application, who seeks to satisfy the primary criteria for the grant of the visa. That application may be joined by other members of the applicant’s family unit and those others may seek to satisfy the secondary criteria for the grant of the visa.
48In my view, “the applicant” referred to in cl.892.215 is the person who seeks to be assessed against the primary visa criteria. It is not a reference to “that person or any other member of that person’s family unit”. The phrase “the applicant” does not refer to any person other than the person who has sought in the relevant visa application to satisfy the primary visa criteria for that visa.
49To the extent that it is suggested that such an interpretation renders cl.892.2 otiose, it seems to me that nonetheless the note to cl.892.2 has work to do. It makes it clear that the primary criteria must be satisfied by at least one person who is a member of the family unit. That is not to suggest that it can be any person in the family unit but merely that there must be one person who satisfies the criteria. It says nothing of who that person should or must be. That answer is supplied by the text of the other clauses which describe the primary criteria for the grant of the visa. Some of the relevant criteria might be satisfied by considering not just the applicant but the applicant’s de facto or the applicant’s spouse or a member of the family unit of the applicant.
50In my view the tribunal’s decision is not attended by any error, let alone jurisdictional error, and the application must be dismissed with costs.
It is common ground between the parties and with respect correctly, that the note which appears under clause 892.2 forms part of the Migration Regulations. So much flows from section 13 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), read in conjunction with the Legislative Instruments Act 2003 (Cth) (Legislative Instruments Act). By s 6 of the Legislative Instruments Act, regulations are declared to be Legislative Instruments. By s 2 of the Acts Interpretation Act, that Act applies to all Acts, and also to legislative instruments.
In approaching the question of the proper construction of the material provisions of the regulations, the appellants submitted that the observations made by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paras 69 – 71 (Project Blue Sky), were pertinent:
69The primary object of statutory construction is to construe the relevant provision so that is it consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined, “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways New South Wales v Alieonas, Dixon CJ pointed out that the context, the general purpose and policy of a provision, and it’s consistency and fairness assure ….. to it’s meaning and the logic with which it is constructed. Thus the process of construction must always begin by examining the context of the provision that is being construed.
70A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated so far as possible by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions, while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision, and which the subordinate provision, and which must give way to the other. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision which best gives effect to the purpose and language, while maintaining the unity of the statutory scheme.
71Furthermore, the court construing a statutory provision must strive to give meaning to every word of the provision. In the Commonwealth v Baume, Griffith CJ cited The King v Berchet to support the proposition that it was, “a known rule in the interpretation of statutes that such a sense as to be made upon the whole as that no clause, sentence or word should prove superfluously, void or insignificant. If by any other construction they may all be made useful and pertinent”.
The appellants emphasised that it was necessary to recall that the note to clause 892.2 not only formed part of the Migration Regulations, but was also required to be construed in a way, as the passage in Project Blue Sky cited requires, that did not render it superfluous, void or insignificant. The appellants also recalled in their submissions the evolution of Migration Regulations made under the Migration Act from a compact, concise set of subordinate legislative provisions under which hundreds of thousands of people had migrated successfully to this country to the Byzantine labyrinth which one finds today in the present regulations. In so doing, they highlighted that context, general purpose and policy of a provision was very probably, against that background, a much surer guide than logic, as Dixon CJ allowed in the passage quoted in Project Blue Sky having regard to the ad hoc manner in which the regulations had reached their present form.
As to matters of policy, and with a review to assisting in the understanding of the rationale for paragraphs 1104B and 892, the appellants drew attention to statements made in the explanatory statement issued by the then Minister in respect of Statutory Rules 2002 (No 10) 2002 No 348, Migration Amendment Regulations 2002 (No 10) 2002 No 348, by which the current regime for the visa sought by the appellants came to be introduced. One sees there the following statement made with reference to that, and another type of visa:
In relation to both types of visa an applicant may hold, the visa must have been granted on the basis that the applicant, his or her spouse, or his or her former spouse, satisfy the primary criteria for the grant of the visa.
…
This is to allow spouses who are involved in the business activities to become the main applicant at the permanent visa stage. The scheme is for there to be initially a temporary visa, and then a permanent visa.
In clause 1104B(3) the following descriptions are employed; “applicant seeking to satisfy the primary criteria”, “applicant seeking to satisfy the secondary criteria”, and “applicant”. In particular, in clause 1104B(3)(f) and 1104B(3)(i), the description “applicants seeking to satisfy the primary criteria” is used in conjunction with “for the grant of a subclass 892 (State/Territory Sponsored Business Owner) visa”. The utility on that description is not, in my view, exhausted by a conclusion that there is a valid visa application.
Reading material provisions of the Migration Regulations as a whole, it becomes apparent that the applicant referred to in clause 829.215(a) is the person seeking to satisfy the primary criteria. Such a person in relation to an application made by the members of a family unit will be at least one member of a family unit. The note to clause 892.2 highlights that but one member of the family unit needs to satisfy the primary criteria. In an application for this class of visa made by the members of a family unit, it is necessary for a discriminating choice to be made by them as to who will be put forward as the “applicant seeking to satisfy the primary criteria”. The note to clause 892.2 reminds that they must choose one, but need not choose more than one. The chosen person, the person, “the applicant seeking to satisfy the primary criteria”, must materially satisfy clause 892.215 for the relevant primary criteria for this class of visa to be satisfied.
It was put on behalf of the appellants that one of Mrs Lee or her spouse, Mr Kim, the second applicant, must meet the primary criteria. I do not see that Mrs Lee as the person seeking to satisfy the primary criteria in terms of clause 1104B(3) would successfully satisfy the primary criteria, materially, clause 892.215, by pointing to the length of time that Mr Kim had been in Australia. For better or for worse and, unfortunately, for the appellants in this case for the worse, it is Mrs Lee who must on the true construction of the Migration Regulations satisfy clause 892.215.
The approved form is not inconsistent with the construction, which I prefer. Its author has chosen to use the terminology “main applicant” in relation to the person who is the subject of the discriminating choice which I have mentioned. That is not misleading but rather it seems to me a convenient shorthand way of describing the person who is put forward in the application as the “applicant seeking to satisfy the primary criteria.”
A degree of flexibility is permitted in relation to a progression to the successful obtaining of a class 892 State/Territory Sponsored Business Owner Visa. So much is evident from clause 1104B(3)(f). In that sense, there is nothing misleading in the explanatory statement. That degree of flexibility does not, in my view, extend to the flexibility for which the appellants contend in relation to the construction of clause 892.215 and the role to be given to the note which appears under clause 892.2.
In short, I respectfully agree with the construction adopted by the learned Federal Circuit judge and with the reasons for that construction given by his Honour in the passage which I have quoted. It follows that the appeal must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 22 August 2013
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