Lee v Minister for Immigration

[2013] FCCA 396

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 396

Catchwords:
MIGRATION – Migration Review Tribunal – Business Skills (Residence) (Class DF) (subclass 892) visa – whether cl.892.215 could be satisfied by secondary visa applicant.

Legislation:
Acts Interpretation Act 1901, s.13
Migration Act 1958, ss.31, 31(3), 45(1), 46, 46(1), 65
Migration Regulations 1994, reg.207(1), 2.07AO, 2.02, cl.892.2, 892.21, 892.24, 892.212, 892.215, 1104B, 1104B(1)(a), 1104(2)(c), 1104(3)(b)(i), 1104B(3)(i)(i), 1104B(3)(i)(I), 1104B(3)(h)

Cases cited:
Minister for Immigration v Hart [2009] FCAFC 112

First Applicant: CHAE HEE LEE

Second Applicant: MYUNG KYU KIM

Third Applicant: MIJUNG KIM

Fourth Applicant: WOOMIN KIM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 66 of 2013

Judgment of: Judge Jarrett

Hearing date: 2 May 2013

Date of Last Submission: 2 May 2013

Delivered at: Brisbane

Delivered on: 31 May 2013

REPRESENTATION

Counsel for the Applicants: Mr Boccabella

Solicitors for the Applicants: A J Torbey & Associates

Solicitor for the Respondents: Ms O’Connor

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 25 January, 2013 is dismissed.

2. The applicants pay the first respondent’s costs of the application fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 66 of 2013

CHAE HEE LEE

First Applicant

MYUNG KYU KIM

Second Applicant

MIJUNG KIM

Third Applicant

WOOMIN KIM

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicants Business Skills (Residence) (Class DF) subclass 892 visas.  In this application they seek prerogative relief which will set aside the decision of the tribunal.  They seek that the matter be remitted to a tribunal to be heard and determined according to law.

2. The applicants submit that this application turns on the meaning of a note to cl.892.2 found in schedule 2 to the Migration Regulations 1994. The way in which both parties argued the case focused attention upon that clause and the way in which this Court ought to interpret it. In my view, however, the issue for determination in this application is the correct meaning to be ascribed to the phrase, “the applicant” where it appears in cl.892.215 in schedule 2 of the Regulations.

The statutory scheme

1. In their written submissions both parties have set out at some length the regime by which the Minister might grant a visa to a person that applies for one.  Out of deference to those submissions and to give some context to these reasons, I will step through the visa application and grant process. 

2. Section 31 of the Migration Act1958 provides that there are to be prescribed classes of visa. By s.31(3), the Regulations may prescribe criteria for a visa or visas of a specified class.

3. By s.45(1) of the Act, a non-citizen who wants a visa must apply for a visa of a particular class.

4. Section 46(1) and its subsequent subsections provide that an application for a visa is valid if, and only if, it is for a visa of a class specified in the application, it satisfies the criteria and requirements prescribed under s.46 to be a valid application, and subject to the Regulations any relevant visa application charge has been paid and any fees otherwise payable in respect of the application have been paid. There are other criteria that need to be met.

5. Section 65 of the Migration Act1958 provides that after considering a valid application for a visa the Minister, if satisfied that the criteria prescribed by the Act have been satisfied, may grant the visa.  If the Minister is not so satisfied then the Minister must refuse the visa.

6. Relevantly for the purposes of this application, regulation 2.07 of the Regulations provides:

   2.07Application for visa — general

   (1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

   (a)    the approved form (if any) to be completed by an applicant;

   (b)    the visa application charge (if any) payable in relation to an application;

   (c)    other matters relating to the application.

   (3)An applicant must complete an approved form in accordance with any directions on it.

   (4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:

   (a)    in the form; or

   (b)    in a separate document that accompanies the application.

7. The applicants point out that schedule 1 of the Regulations deals with matters that relate to the validity of visa applications.  That is to say, that schedule sets out the matters that need to be satisfied before a visa application can be said to be a valid application for a visa.

8. Relevant to this matter is cl.1104B in schedule 1 to the Regulations. To the extent that it is material, it is in the following terms:

   1104B   Business Skills (Residence) (Class DF)

   (1)   Forms:

   (a)    For applicant seeking to satisfy the primary criteria for the grant of a Subclass 890 (Business Owner) visa:   47BU and 1217

   (b)    For applicant seeking to satisfy the primary criteria for the grant of a Subclass 891 (Investor) visa:   47BU

   (c)    For applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa:   47BU, 1217 and 949

   (d)    For applicant seeking to satisfy the primary criteria for the grant of a Subclass 893 (State/Territory Sponsored Investor) visa:   47BU and 949.

   (2)   Visa application charge:

   …

   (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.

   …

   (f)    For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa:

   (i) if the applicant is not a person designated under regulation 2.07AO:

   (A)     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, or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa; or

   (B)     applicant must hold a Subclass 457 (Business (Long Stay)) visa, granted on the basis that the applicant, or the spouse or de facto partner of the applicant, or the former spouse or former de facto partner of the applicant, satisfied the criteria in subclause 457.223 (7) or (7A) for the grant of the visa; or

   (C)     applicant:

   (I)     must hold a Skilled — Independent Regional (Provisional) (Class UX) visa; or

   (II)     must have held a Skilled — Independent Regional (Provisional) (Class UX) visa at any time in the 28 days immediately before making the application; and

   …

   (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.

   …

   (4)   Subclasses:

   890   (Business Owner)

   891   (Investor)

   892   (State/Territory Sponsored Business Owner)

   893   (State/Territory Sponsored Investor)

9. Clause 1104B(3)(h) expressly permits the making of a combined application by the members of the family unit of a person who is an applicant for a Business Skills (Residence) (Class DF) visa. Ms Lee was the applicant for the Business Skills (Residence) (Class DF) visa. Mr Kim and the parties’ children were part of a combined application as permitted by the Regulations.

10. Neither Ms Lee nor Mr Kim was designated under regulation 2.07AO. Only Ms Lee was sponsored by an appropriate regional authority for the purposes of cl.1104B(3)(i)(i).

11. Regulation 2.02 of the Regulations provides that schedule 2 to the Regulations is divided into parts, each identified by the word “subclass” and thereafter the subclasses set out by way of a number of clauses each of the relevant criteria that must be satisfied before a visa of that particular subclass can be granted. The visa type applied for by the applicants in this case was a Business Skills (Residence) (Class DF) visa. There are four subclasses of that visa category and the relevant subclass in this instance is the State/Territory sponsored business owner subclass 892.

12. A primary applicant for a Business Skills (Residence) (Class DF) subclass 892 visa must, in order to be granted that visa, satisfy the criteria prescribed in part 892 of schedule 2 to the Regulations. The primary criteria are set out in cl.892.2. For the purposes of this application, the following clauses from part 892 of schedule 2 to the Regulations are relevant:

    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.

    892.21      Criteria to be satisfied at time of application

    …

    892.215If the applicant is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, one or more of the following circumstances has existed for a total of at least 1 year in the period of 2 years ending immediately before the application is made:

    (a)     the applicant has been in Australia as the holder of one of the visas mentioned in paragraph 1104B (3) (f) of Schedule 1;

    (b)     the applicant has been in Australia as the holder of a Bridging A (Class WA) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or de facto partner of the applicant, or former spouse or former de facto partner of the applicant, satisfying subclause 457.223 (7A) of Schedule 2;

    (c)     the applicant has been in Australia as the holder of a Bridging B (Class WB) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or de facto partner of the applicant, or former spouse or former de facto partner of the applicant, satisfying subclause 457.223 (7A) of Schedule 2.

Background facts

1. The applicant, Ms Lee applied for a Business Skills (Residence) (class DF) subclass 892 visa on 10 December, 2010.  Her husband, the applicant Mr Kim and their two children were included in her application as family members.

2. In the two years prior to her visa application, Ms Lee had not been in Australia for a period of at least one year.  She had only been in Australia for less than one year.   Mr Kim had been in Australia for more than one year in the two years prior to the visa application.

3. On 3 March, 2011 the delegate refused to grant Ms Lee’s application because she is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa and, as the primary visa applicant, had not been in Australia for a period of at least one year in the two years immediately before the application was made as required by cl. 892.215 of schedule 2 to the Regulations.

4. The applicants applied to a migration review tribunal on 9 March, 2011 for review of the delegate’s decision. They were invited to appear before the tribunal on 21 December, 2012. They took up that invitation and appeared at the hearing. They were represented by an agent (a barrister) who presented arguments on their behalf and made oral submissions.

5. On 2 January, 2013 the applicants were notified of the tribunal’s decision to affirm the decision of the delegate not to grant them the visas for which they had applied.

The tribunal’s decision

1. The tribunal determined the application on the basis that the primary visa applicant was Ms Lee.  It took the view that Mr Kim and the parties’ children were secondary visa applicants and had made a combined application for a visa based upon Ms Lee’s primary application.  There was nothing untoward in that approach and it was consistent with the way in which the application for the visas was made.

2. In this particular instance the tribunal found that Ms Lee did not meet the requirements of cl.892.215 of schedule 2 of the Regulations because she had not been in Australia for the period of at least one year in the two years immediately before the application for a visa was made. The tribunal further found that Mr Kim and the parties’ two children could not be assessed against the primary visa criteria in part 892.2 of schedule 2 to the Regulations as they were not sponsored by an appropriate regional authority as required by cl.1104B(3)(i) of schedule 1 to the Regulations.

3. The evidence accepted by the tribunal was that she had been in Australia for a total of 295 days. Her husband, Mr Kim, on the other hand had been in Australia for the requisite period of time and had held a relevant visa, although he did not hold the sponsorship required by cl.1104B(3)(i) of schedule 1 to the Regulations. It was argued before the tribunal, and it is now argued before me, that as long a one member of the family unit met the primary visa criteria, all was well. The primary visa applicant did not have to be the person who met the primary visa criteria.

4. The applicants contend that the note that appears at the commencement of part 892 of schedule 2 to the Regulations means that the primary visa applicant does not necessarily have to meet the primary visa criteria themselves, but can rely upon other family members to meet the primary visa criteria on behalf of the primary visa applicant.

Consideration

1. I said at the commencement of these reasons the applicants identified the issue in this case as the work which was done by the note that appears at the commencement of part 892 of schedule 2 to the Regulations. My view, however, which I raised with each party during argument, is that the real issue is the meaning of the phrase “the applicant” where it appears in cl.892.215. The meaning to be given to that phrase might be informed, at least in part, by the note at the commencement of the part, but it is the words of that particular clause which are important because they define the criteria to be met and the person who must meet them.

2. In my view there are two possibilities as to the meaning of the phrase “the applicant” in cl.892.215. The first is that the phrase refers to the person who, in a combined application, is identified as the main visa applicant in the visa application form. The second possibility is that the phrase refers to any applicant in a combined application. In that case, it would mean any of the four people in the combined application in this case.

3. The tribunal took the view that it was the first of those meanings which was correct rather than the second.  For this application to succeed the second of the interpretations I have identified above must be correct.  If the first is the correct interpretation, then this application must fail. 

4. One will observe from the terms of cl.1104B set out above that there are various descriptions applied to those seeking a visa. Clause 1104B(1)(a) refers to an “applicant seeking to satisfy the primary criteria for the grant of a subclass 890 …visa” whereas cl.1104B(2)(c), refers to an “applicant seeking to satisfy the secondary criteria.” Thus, according to the terms of cl.1104B, an applicant for a business skills visa can seek to satisfy the primary criteria for the grant of the visa or they might seek to satisfy the secondary criteria for the grant of the visa. Clause 1104B contemplates two categories of applicants.

5. Clause 1104B(3)(i), provides that an 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 must be sponsored by an appropriate regional authority and must have a form 949 signed by an officer of the authority who is authorised to sign a sponsorship of that kind.

6. The tribunal found, and there is no attempt to attack this finding of fact made by the tribunal, that Ms Lee was the person who held the relevant sponsorship required by cl.1104B(3)(i)(i). There was a suggestion that maybe Mr Kim was also the holder of such a sponsorship if one was to construe the form 949 in a particular way, but the fact that was found by the tribunal was open to it on the evidence and the facts as found cannot be, absent special circumstances, interfered with in this Court. Accordingly, the matter must be determined on the basis that it was Ms Lee who was the only holder of the relevant sponsorship.

7. Because only Ms Lee held a relevant sponsorship, only she was eligible to seek to satisfy the primary criteria for the grant of the visa.  The visa application form and the accompanying documents confirm that to be the case.

8. It is against that context that I have earlier identified one of the possible options for the meaning of the words “the applicant” where they appear in cl.892.215. Is it the person who has sought to satisfy the primary criteria in the visa application lodged pursuant to cl.1104B or is it any person who is part of that application? Other parts of cl.892 of schedule 2 of the Regulations provide some clues.

9. The first clue and a significant matter which points towards the second of the two interpretations that I have identified, is contained in the note to cl.892.2. I have set that note out above. The applicants argue that the note means that any one person within a family group in a combined application and not necessarily the person who is seeking to satisfy the primary criteria, can satisfy the primary criteria set out in cl.892. Upon that person so satisfying the primary criteria the visa might granted.

10. In support of this construction, Counsel who appeared for the applicants was at pains to point out two matters.  The first was that the visa application itself should be considered valid.  He argued that once that fact was appreciated, the work of schedule 1 of the Regulations was done and it was not legitimate to have any further regard to the terms of that schedule.  That was so despite arguing that to properly construe the note, regard should be had to the entire statutory context in which the note appeared (relying upon Spender J’s remarks in Minister for Immigration v Hart [2009] FCAFC 112 at [7]).

11. There is no contention from the respondent that the visa application in this case was not a valid application. It was so found by the first respondent’s delegate and the tribunal. One can safely assume that the requirements of cl.1104B were met when the visa application was made.

12. The second matter emphasised by Counsel for the applicants was that it was Ms Lee’s case that she could meet the primary criteria “through” Mr Kim’s compliance with cl.892.215. That is to say, she was not contending that for some purposes Mr Kim could or should be considered the primary visa applicant and Ms Lee for others. The applicants contend that Ms Lee, as the person seeking to be assessed against the primary visa criteria, could rely upon Mr Kim to satisfy the requirements of cl.892.215 on her behalf. She could satisfy cl.892.215 “though” him. It was argued that this is the plain meaning of the language used in the note. Otherwise, it is said, cl.892.2 would have no work to do and would be otiose.

1. The respondent argues that whilst the Court must have regard to the note where it appears under cl.892.2, it is nonetheless a note and ought to be accorded less weight than the other operative parts of the statute; that is so, it is said, notwithstanding s.13 of the Acts Interpretation Act 1901.

2. I accept that the starting point and the ending point in this matter is the statutory text. The proper construction to be applied to cl.892.215, is determined according to the text of that clause read in the context of the Act and the Regulations a whole. The context will also include the legislative history of cl.892.215 and those clauses around it and any relevant extrinsic material.

3. The respondent argues that the construction for which the applicants contend (as set out above) is inconsistent with cl.1104B(3)(i), of schedule 1 to the Regulations. The inconsistency, it is said, arises because one can only seek to be assessed against the primary criteria if one meets certain requirements and in this case it was only Ms Lee who could meet those requirements. To permit her to rely upon her spouses ability to meet the requirements of cl.892.215, would be to render cl.1104B(3)(i) irrelevant.

4. Another clue within cl.892 is found in the text of some of the clauses with part 892 of schedule 2. I was taken by Counsel for the applicants to various clauses in part 892 and in particular cl.892.212, where there were references to “the applicant”, “the applicant’s spouse or de facto partner” or “the applicant and his or her spouse or de facto partner together”. The relevant clause is:

   892.212      Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

   (a)     in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

   (i)   provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full‑time employee over that period of 12 months; and

   (ii)   provided those hours of employment to an employee, or employees, who:

   (A)   were not the applicant or a member of the family unit of the applicant; and

   (B)   were Australian citizens, Australian permanent residents or New Zealand passport holders;

   (b)     the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

   (i)   have a net value of at least AUD250 000; and

   (ii)   had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and

   (iii)   have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

   (c)     the assets owned by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:

   (i)   have a net value of at least AUD75 000; and

   (ii)   had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and

   (iii)   have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

5. Counsel emphasised the words I have emphasised above to argue that those references demonstrate that what is being considered is the family unit as a whole and consistently with considering the family unit as a whole, where there is a combined visa application the application is treated as an application by the family unit. The note which follows cl.892.2, should be construed liberally so that the primary visa criteria might be satisfied by having regard to any one of the family unit’s members.

6. Clause 892.224, contains other references to which I was not taken.  It is in the following terms:

   892.224      (1)   Each member of the family unit of the applicant  who is an applicant for a Subclass 892 visa is a person who:

   (a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4009, 4010 and 4020; and

   (b)     if the person had turned 18 at the time of application — satisfies public interest criterion 4019.

   (2)   Each member of the family unit of the applicant who is not an applicant for a Subclass 892 visa satisfies public interest criteria 4001, 4002, 4003, 4004 and 4020.

   (3)   Each member of the family unit of the applicant who, at the time of the applicant’s application, was not the holder of either:

   (a)     a visa of a subclass included in Business Skills (Provisional) (Class UR); or

   (b)     a Subclass 457 (Business (Long Stay)) visa; or

   (c)     a Skilled — Independent Regional (Provisional) (Class UX) visa;

   satisfies public interest criterion 4005.

   (4)   Each member of the family unit of the applicant who, at the time of the applicant’s application, was the holder of:

   (a)     a visa of a subclass included in Business Skills (Provisional) (Class UR); or

   (b)     a Subclass 457 (Business (Long Stay)) visa; or

   (c)     a Skilled — Independent Regional (Provisional) (Class UX) visa;

   satisfies public interest criterion 4007.

7. Clause 892.224 refers to “each member of the family unit of the applicant” on a number of occasions. 

8. There is, therefore, throughout cl.892 various references that might be construed as references to the family unit to which the combined visa application relates. 

9. But the very fact that there are such references throughout part 892 of schedule 2 of the Regulations must mean that the phrase “the applicant,” in part 892.2 refers to the person seeking to satisfy the primary visa criteria only. The phrases “the applicant’s spouse or de facto,” and “members of the family unit of the applicant” where they appear in various criteria set out in part 892.2 extend the relevant criterion in which they appear beyond a consideration of the applicant alone.

10. The references in cl.892.224, for example, are inconsistent with the notion that the words “the applicant” wherever they appear in cl.892 should be construed as the applicant or a member of the applicant’s family unit. If that was so, then, the express references to members of the family unit of the applicant would be entirely unnecessary. Similarly, the references in cl.892.212 to the applicant’s spouse or de facto would equally be unnecessary if the words “the applicant” were intended to be a compendious term which should comprehend both the person seeking to satisfy the primary visa criteria and the person or persons seeking to satisfy the secondary visa criteria.

11. Similarly the structure of part 892 might be different. Clause 892.2 deals with the primary criteria that need to be met for the grant of the relevant visa. Clause 892.3 deals with the criteria that need to be met for the grant of the relevant visa to persons who have sought to satisfy those secondary criteria. Such a division would be unnecessary if the applicants’ interpretation was correct.

Conclusion

1. The 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. 

2. In 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.

3. To 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.

4. In my view the tribunal’s decision is not attended by any error, let alone jurisdictional error, and the application must be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 31 May 2013.

Date:  31 May 2013