Panta v Minister for Immigration
[2006] FMCA 855
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PANTA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 855 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of temporary business visas – applicant found to be in breach of a no work condition on his last visa – applicant claiming that, while physically present in Australia, his work was conducted overseas by electronic communication – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), s.359A Migration Regulations 1994 (Cth) |
| Azzi v Minister for Immigration [2002] FCA 24 De Ronde v Minister for Immigration [2004] FMCA 519 Minister for Immigration v Montero (1991) 31 FCR 50 |
| Applicant: | RAVINDRA RAJ PANTA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG921 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 15 June 2006 |
| Date of Last Submission: | 18 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Hanstein Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG921 of 2005
| RAVINDRA RAJ PANTA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 17 November 2004. The MRT affirmed a decision of a delegate of the Minister not to grant the applicant and other members of his family a Temporary Business Entry (Class UC) visa. The decision was notified to the applicant by letter dated the same day. Mr Panta (the applicant) was the principal visa applicant and is the only applicant in the proceeding before this Court.
I adopt the statement of background facts in the Minister’s outline of written submissions filed on 9 June 2006, as follows.
The applicant entered Australia on a Tourist Short Stay (Class TR) subclass 676 visa on 19 June 1998. He applied for a Temporary Business Entry (Class UC) visa on 18 September 1998[1] (“the visa application”) and he has held a number of bridging visas since that date[2]. On 11 May 1999, the applicant was granted a bridging A visa which was subject to condition 8101 (the holder must not engage in work in Australia).[3]
[1] Relevant Documents (“RD”) 1 ff
[2] RD 52
[3] RD 52
The visa application was initially refused by a delegate of the respondent on the basis that the applicant’s proposed employer was not an approved sponsor and there was no approved nomination for the applicant’s proposed position.[4] On 9 October 2000, the MRT remitted the visa application to the respondent for reconsideration on the basis that, in a separate MRT decision, a decision was made to approve the proposed employer as a business sponsor.[5]
[4] RD 29
[5] RD 35
The visa application was again refused by a delegate of the respondent on 23 August 2002[6], and the MRT affirmed the refusal on 17 November 2004.[7] It is this decision of the MRT that is challenged in the present proceedings.
[6] RD 50
[7] RD 71
MRT proceedings and decision
The applicant lodged the application for review with the MRT on 12 September 2002.[8] On 27 February 2004, the MRT sent the applicant an invitation to comment on information[9], pursuant to s.359A of the Migration Act 1958 (“the Migration Act”). The MRT received a response to the invitation on 29 March 2003.[10]
[8] RD 56
[9] RD 62
[10] RD 64
The applicant was then invited to appear[11], and did appear, at a hearing before the MRT on 7 June 2004.
[11] RD 65
On 17 November 2004, the MRT handed down its decision affirming the delegate’s decision to refuse the visa application.[12] The MRT’s findings included the following:
a)the applicant’s bridging visa granted on 11 May 1999 was subject to condition 8101;[13]
b)the applicant engaged in activities in Australia which constituted “work” within the meaning given by regulation 1.03 of the Migration Regulations 1994;[14]
c)the applicant did not comply with condition 8101 attached to the bridging visa;[15]
d)the applicant did not substantially comply with that condition;[16] and
e)the applicant, therefore, did not meet the criterion in clause 457.221 (if the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.)
[12] RD 71
[13] RD 75 at [28]
[14] RD 75 at [32]
[15] RD 76 at [33]
[16] RD 76 at [34]-[40]
The application
This proceeding began with a judicial review application filed on
15 December 2004. An amended application was filed on 1 August 2005. That is the application on which Mr Panta now relies.
The original application had been commenced in the Federal Court but was transferred to this Court by order of Branson J on 18 February 2005. The amended application was filed pursuant to an order made by me on 18 July 2005. The amended application asserts that the MRT erred in misinterpreting condition 8101. Mr Panta does not dispute that he was working but maintains that he was not engaged in “work” for the purposes of the condition attaching to his visa. Mr Panta maintains that, while he was physically present in Australia while he was working, the work he undertook was undertaken “overseas”.
Submissions
In her initial written submissions, the Minister contends that Mr Panta’s complaint is, in substance, with the MRT’s factual findings and does not amount to jurisdictional error. Relevantly, those submissions are as follows:
The Tribunal correctly identified the issues before it, stating that:
in this case the first question for the Tribunal is whether the activities carried on in Australia by the primary visa applicant in connection with business and clients offshore could be said to be work as is defined in the Regulations.[17] (emphasis added)
The Tribunal then made factual findings to the effect that the activities carried on by the applicant in Australia did amount to work for the purposes of the Regulations. The Tribunal stated:
The Tribunal finds that the activities described and admitted by the primary visa applicant are work as described in the Regulations. Even though the primary visa applicant was not dealing face to face with clients and they remained in another country, his work was to organise and co-ordinate groups of tourists to visit Nepal from United States. The fact that he did not make travel arrangements directly himself, or that the clients and the destination were in other countries was not material to the activities undertaken by the primary visa applicant in liaising with potential clients and co-ordinating the arrangements. Without those activities he would not have received commission …[18]
These findings appear to take into account the applicant’s claim to the Tribunal[19] that, although he was physically present in Australia, his business was conducted overseas.
The Tribunal has correctly interpreted and applied the law and has made findings that were open to it on the material before it. No jurisdictional error is disclosed by the Tribunal’s decision.
[17] RD 75 at [30]
[18] RD 75 at [32]
[19] RD 64
At the trial of this matter on 15 June 2006 I agreed to consider Mr Panta’s application on two possible bases. The first is whether the MRT committed an error of law in interpreting condition 8101.
The second is whether the MRT committed a jurisdictional error by making an error of fact that is a jurisdictional fact for the purposes of the application of condition 8101. I also called for a search to be conducted of a request for advice allegedly made by Mr Panta to the Minister. I received as an exhibit[20] a letter to Mr Panta from the Honourable Gary Hardgrave MP, then Minister for Citizenship and Multicultural Affairs, dated 8 October 2002. That search subsequently produced a record of an enquiry made by Mr Panta to the Minister over the internet. The enquiry made by Mr Panta was:
I would highly appreciate it if you could clarify the definition of work in Australia under condition 8101. Does the person have a right to conduct business elsewhere in the world via e‑mail/fax/telephone while physically being present in Australia which does not attract remuneration in Australia.[21]
[20] exhibit A1
[21] The electronic record of this inquiry became an exhibit – exhibit C1
Mr Hardgrave responded to this enquiry in the following terms:
Condition 8101 is a standard condition for visitors and states that the holder “must not engage in work in Australia”. Work is defined in the Migration Regulations as an activity that, in Australia, normally attracts remuneration. Under this definition you cannot therefore conduct business that would normally attract remuneration while you are physically in Australia.
Apart from the exhibits, I accepted as evidence the book of relevant documents filed on behalf of the Minister on 1 March 2005. I also gave the parties the opportunity to file further written submissions. Mr Panta filed written submissions on 2 August 2006. Relevantly, he submits that in 1958 the Migration Act did not contemplate the possibility that a person might be physically in Australia but performing work overseas. He states that he sought clarification on this issue “a few times” from the Minister’s Department and had been led to believe that what he was doing did not involve a breach of condition 8101.
Further submissions on behalf of the Minister were filed on 18 August 2006. In those written submissions the Minister contends that:
a)the fact of whether Mr Panta was or was not engaged in work in Australia was not a jurisdictional fact but was, rather, a matter falling within the fact finding role of the MRT;
b)there was no error made by the MRT in the interpretation or application of the Migration Regulations[22]; and
c)the MRT was under no duty to make inquiries about Mr Panta’s request for advice to the Minister or his response to it.
[22] see De Ronde v Minister for Immigration [2004] FMCA 519
Reasoning
The MRT was well aware of Mr Panta’s activities because he had been generally frank and open about them[23]. At paragraphs 22 and 23 of its decision[24] the presiding member said:
The primary visa applicant confirmed that his business activities in Australia had been as he described them to the Department and in his response to the Tribunal. He said that he had operated a travel agency business in United States for some years and still retained a lot of contacts in the business there. He said that clients were still referred to him and he in turn referred them to an agency in United States to organise their trekking holiday in Nepal. He was paid between US$600 and $700 as commission for each member in a group and the money was paid into his account in the United States but he no longer operated the American Express account. He confirmed that he was still receiving local commissions into his account in Nepal.
The visa applicant reiterated that he had been advised that operating like this would not be considered working in Australia and he had not realised he would be breaking his visa condition if his clients, the business and his payments were off shore. The primary visa applicant admitted that he used his home telephone, fax and internet to make arrangements for clients off shore. He said that in 2002 he organised two groups and in 2003 another two groups to travel to Nepal. In 2004 the political situation there had caused a downturn in the tourist industry and he had not undertaken any planning activities. He had also attempted to organise groups to travel to southern India but had not been successful. He had not built up a client base in Australia or carried on any business locally.
[23] although the MRT found Mr Panta to be unforthcoming on some matters of detail – see [17] below
[24] RD 74-75
The issue that the MRT had to resolve was a mixed issue of fact and law. The MRT resolved it in the following way at paragraphs 26-33 of its decision[25]:
[25] RD 75-76
At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 is not relevant because such a visa cannot be granted to a visa applicant in Australia and the visa applicants were seeking visas for longer than 3 months using form 1066.
The relevant criteria for a Subclass 457 (Business (Long Stay)) visa are:
457.221If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
The primary visa applicant’s Bridging A visa granted on 11 May 1999 was subject to condition 8101 which is as follows:
8101 The holder must not engage in work in Australia.
Regulation 1.03 defines work in the following way:
Work means an activity that, in Australia, normally attracts remuneration.
In this case the first question for the Tribunal is whether the activities carried on in Australia by the primary visa applicant in connection with business and clients offshore could be said to be work as it is defined in the Regulations.
If the Tribunal answers that question in the affirmative the Tribunal must then consider if the extent of the activities were such that they constituted a breach so minor or limited that the Tribunal may still find that nevertheless the applicant has substantially complied with the condition.
The Tribunal finds that the activities described and admitted by the primary visa applicant are work as described in the Regulations. Even though the primary visa applicant was not dealing face to face with clients and they remained in another country, his work was to organise and co-ordinate groups of tourists to visit Nepal from United States. The fact that he did not make travel arrangements directly himself, or that the clients and the destination were in other countries was not material to the activities undertaken by the primary visa applicant in liaising with potential clients and co‑ordinating the arrangements. Without those activities he would not have received commission. The Tribunal is satisfied that this activity as described by the primary visa applicant to the Department and the Tribunal is an activity that, in Australia, normally receives remuneration and is therefore work. Such income as the primary visa applicant receives for such activity would be subject to income tax. The primary visa applicant has given evidence that although the commissions are paid into overseas accounts he still used that money to cover expenses in Australia.
The Tribunal further finds therefore that the primary visa applicant did not comply with condition 8101 on his visa.
The MRT then considered whether Mr Panta had nevertheless substantially complied with the conditions on his visa. The MRT was aware, at least in general terms, that Mr Panta had claimed to have sought advice about his activities and considered that information in the following terms[26]:
The Tribunal accepts the evidence that the primary visa applicant took advice (apparently including oral advice via an enquiry call centre from the Department) that sending faxes and making telephone calls would not be considered work as long as the clients and payments were offshore. However the primary visa applicant undertook these activities over a period of time and not just in the course of a short business trip to Australia. He was resident here at the time, and until the American Express Account was closed he used the commission paid into the account in the United States for his living expenses in Australia. The Tribunal finds therefore that the breach was extensive but accepts that the visa applicant did not deliberately flout the condition. He had taken advice, and had engaged in some activities but delayed others, under the impression that he was still, albeit narrowly, within the letter of the law.
The Tribunal notes that the visa applicant has failed to provide further up to date information concerning his bank accounts in Australia and has not given a complete list of clients he assisted and the corresponding commissions that he received. Nor has he provided any explanation why he has not done so. This is a cause of concern to the Tribunal as the primary visa applicant, in his oral evidence was quite clear about the number of people and groups he had assisted. In other words the visa applicant has not been able to provide further substantiation of his claims that he did not assist large numbers of people or receive large sums in remuneration.
The Tribunal notes that the primary visa applicant arrived on a Visitor visa which is normally granted for the purposes of tourism and family visits. For that reason it had a ‘no work condition’ on it. It was open to the visa applicant, before he entered Australia, to apply for a Short Stay Business visa that would have permitted him to undertake business activities that could not be undertaken by Australian citizens and permanent residents.
On balance while the Tribunal accepts that the primary visa applicant may have taken advice that it would not be a breach of his ‘no work’ condition to undertake these activities he engaged in them over several years and profited from them. He has not provided the Tribunal with the material it requested. The Tribunal finds that he has not substantially complied with the condition 8101 on his Bridging visa. The Tribunal finds therefore that primary visa applicant does not meet the criterion in clause 457.221.
[26] RD 76-77
It is not necessary for me to resolve whether the factual question of whether Mr Panta was or was not working for the purposes of the Migration Regulations was a jurisdictional fact or simply part of the fact finding responsibility on the MRT. For the reasons which follow, I accept that the MRT did not err either in relation to the finding of a jurisdictional fact, or in relation to the interpretation and application of the Regulations to the facts.
The applicant contends that the activity he was undertaking in Australia did not amount to “work” in breach of condition 8101 because it was not work carried out in Australia. I accept, in that regard, the Minister’s supplementary written submissions.
This Court[27] considered a similar argument in De Ronde v Minister for Immigration [2004] FMCA 519. That case concerned a points test assessment in connection with an application for a subclass 136 skilled independent visa. The relevant item for which points were claimed was item 6A41 which required consideration of whether the applicant had been employed in a relevant occupation. In dismissing a claim that the decision-maker had failed to take into account a relevant matter, being that the applicant was granted student visas on the basis that she would continue to be employed in the Netherlands, the Court found that the previous visa applications did not have to be taken into account and continued[28]:
… In any event the previous visa file would only have demonstrated to the decision maker that the Dutch company was continuing to pay the applicant, and that the applicant was the subject of a visa condition precluding her from working in Australia.
I accept the argument of the respondent that a visa condition precluding a person from working in Australia would have also precluded the applicant from continuing to carry out duties as an employee whilst she was in Australia, even if those duties were undertaken by way of electronic communication (see the definition of work, supra).
The types of activities that the applicant is suggesting she carried out would normally attract remuneration in Australia. The activities would be work in the sense that the term is used in the Migration Act: it was an `activity of the mind or body undertaken in exchange for monetary reward' that was `for the purpose of gaining a livelihood' (see Minister for Immigration v Montero (1991) 31 FCR 50 at 58).
The argument that the work was really being undertaken overseas, simply that the applicant was present in Australia at the relevant time, is particularly unattractive. The actual activity of the applicant in bringing her skills to bear on the subject matter of the employment was clearly being undertaken within Australia. Such an interpretation would not fit with the general scheme of the Regulations which provide for a large number of different types of visas for persons from overseas to carry out work in Australia for varying periods of time (for example see visa classes 121 through 134).
[27] Riethmuller FM
[28] De Ronde v Minister for Immigration [2004] FMCA 519 at [42]-[45]
Likewise, in the present case, the actual activity of the applicant in bringing his skills to bear on the subject matter of his work was clearly being undertaken within Australia. For this reason, consistently with the MRT’s reasons for its decision, the MRT has not misinterpreted or misapplied the Regulations in finding that the applicant had not substantially complied with condition 8101.
I also accept that there was no obligation on the MRT to make further inquiries about Mr Panta’s request for advice to the Minister and the response by Mr Hardgrave. Mr Panta’s request for advice squarely raised the issue that ultimately came before the MRT but the response of Mr Hardgrave was consistent with the MRT decision ultimately made. It would have been better if the MRT had made a further inquiry. While the MRT is not under any general duty to inquire, and the facts of this case did not call for further inquiry, it would have been embarrassing (and might have properly have led to a call for Ministerial intervention) if the advice given by Mr Hardgrave had been incorrect. In the present case, there was no jurisdictional error in the failure by the MRT to inquire further into Mr Panta’s request for advice and the advice given by Mr Hardgrave[29].
[29] see Azzi v Minister for Immigration [2002] FCA 24 at [112], [113]
Mr Panta has failed to establish any jurisdictional error in the decision of the MRT. The decision is therefore a privative clause decision and his application must be dismissed. I will so order.
Costs should follow the event. This case appeared initially fairly straightforward but written submissions were required in the light of the issues arising at the trial. In my view, a costs order in the sum of $5,000 is called for, on a party/party assessment. I will so order.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 September 2006
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