DECISION:The Tribunal does not have jurisdiction in relation to Mr Ruwan Tennakoon Mudiyanselage.
The Tribunal affirms the decision not to grant Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage Business Skills (Provisional) visas.
Statement made on 27 April 2022 at 8:19pm
CATCHWORDS MIGRATION – Business Skills (Provisional) (class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – primary applicant not in migration zone when visa application made – application made online and taken to have been received by department in Australia – ‘while’ or ‘physically present’ in migration zone – plain reading of requirement – no reviewable decision – secondary applicant wife established and was running business but was not invited to apply for visa – secondary applicants in migration zone at relevant times – decision under review affirmed for secondary applicants – no jurisdiction for primary applicant
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 May 2019, the applicants applied for the visas with the first named applicant, Mr Ruwan Tennakoon Mudiyanselage, applying as primary visa applicant with the second and third named applicants, Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, applying for the visas as secondary visa applicants on the basis that they are each a member of the family unit of the primary visa applicant, Mr Ruwan Tennakoon Mudiyanselage.
On 11 August 2021, the delegate refused to grant visas to the applicants on the basis that:
(a)
as regards Mr Ruwan Tennakoon Mudiyanselage, one of the necessary primary criteria,
cl 188.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), was not met as required. Further, the delegate assessed whether Mr Ruwan Tennakoon Mudiyanselage could meet the secondary criteria for the visa and concluded that one of the necessary secondary criteria, cl 188.311, was not met.
(b) as regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, cl 188.311 of Schedule 2 to the Regulations was not met as required because they were each not a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for grant of the visa. Further, the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an appeal to the Tribunal regarding a Subclass 188 Business Skills (Provisional) visa. The primary applicant, Mr Ruwan Tennakoon Mudiyanselage, was not in the migration zone when he made his visa application. His wife, Mrs Indira Sembapperuma Arachchige, and son, Mr Diluk Tennakoon Mudiyansalage, were secondary applicants and were in the migration zone at the relevant times. The Tribunal was required to determine whether it had jurisdiction to consider the primary applicant's case and, if so, whether the decision under review should be affirmed for the secondary applicants.
The central legal issue was whether the Tribunal had jurisdiction to review the decision concerning the primary applicant, Mr Ruwan Tennakoon Mudiyanselage. This depended on whether his visa application was considered to have been "made" within the migration zone, as required by section 338(2)(b) of the Migration Act 1958 (Cth) for a Part 5-reviewable decision. A further issue arose regarding the secondary applicants, as the delegate had found that they did not meet primary visa criteria because they had not been invited to apply for the visa.
The Tribunal reasoned that for an online visa application, the application is deemed to have been made in Australia when it is received by the Department, irrespective of the applicant's physical location, by operation of section 14B of the Electronic Transactions Act 1999 (Cth). Therefore, the application was considered to have been made within the migration zone. However, the Tribunal found that it had no jurisdiction to consider the primary applicant's case because he was not in the migration zone when the application was made, and the visa could not be granted while he was outside the migration zone. For the secondary applicants, the Tribunal affirmed the delegate's decision, noting that no evidence had been provided to demonstrate they had been invited to apply for the visa, a necessary primary criterion.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that it has no jurisdiction to consider the application by Mr Ruwan Tennakoon Mudiyanselage, and, as regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, that the decision under review should be affirmed.CLAIMS AND EVIDENCE Mr Ruwan Tennakoon Mudiyanselage confirmed that he was not in Australia at the time of the visa application on 14 May 2019. The Tribunal noted that the applicants’ previous representative had made written submissions in relation to whether the Tribunal had jurisdiction to consider the review in relation to him which would be taken into account by the Tribunal and asked if Mr Ruwan Tennakoon Mudiyanselage had any further submissions to make in that regard. As regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, Mr Ruwan Tennakoon Mudiyanselage said that his wife is the one who established the business in Australia and she was the one who was running the show, even though he applied as primary visa applicant and she applied as secondary visa applicant. The Tribunal discussed with Mr Ruwan Tennakoon Mudiyanselage that the delegate had found that there was no evidence a Subclass 188 visa had been granted to him or any other member of the family unit of Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage such that cl 188.311 was not met as required. Mr Ruwan Tennakoon Mudiyanselage confirmed that that position had not changed since the decision of the delegate. Mr Ruwan Tennakoon Mudiyanselage requested that the Tribunal consider whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage meet the primary visa criteria. The Tribunal indicated its concern about its ability to consider all of the primary criteria in relation to the secondary visa applications. Notably, however, as already canvassed earlier in these Reasons, as can be seen from the delegate’s decision, a copy of which was provided to the Tribunal by the applicants, the delegate also assessed whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage could meet the primary criteria for the visa and concluded that cl 188.221, one of the necessary primary criteria to be met for the visa as a primary visa applicant, was not met because no evidence had been provided of either Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage being invited by the Minister to apply for the visa. Whilst evidence has been provided to the Tribunal responsive to other of the primary criteria, no further evidence has been provided in this regard.CONSIDERATIONRuwan Mudiyanselage In addition to earlier submissions received in relation to the jurisdiction issues raised by the Tribunal, the Tribunal also received post-hearing written submissions on 28 March 2022 as follows (unedited):1.We refer to the above matter and advise that our representation is only limited to the submissions advanced below.2.We write this submission to clarify the Applicant’s position in relation to whether the Tribunal has jurisdiction to hear his matter.3.S 338(2) states that:A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:(a) the visa could be granted while the non-citizen is in the migration zone; and(b) the non-citizen made the application for the visa while in the migration zone; and(c) the decision was not made when the non-citizen:(i) was in immigration clearance; or(ii) had been refused immigration clearance and had not subsequently been immigration cleared;4.Below we go through each of the provisions required to be met in order to be deemed a Part 5 reviewable decision and apply the facts and the law as they stand.(a) the visa could be granted while the non-citizen is in the migration zone5.Under Schedule 2 of the Migration Regulations 1994 (‘The Regulations’), particularly at clause 188.411, the applicant may be in or outside Australia when the visa is granted. Therefore, the Applicant is not precluded from the visa being granted while the non-citizen is in the migration zone.(b) the non-citizen made the application for the visa while in the migration zone6.S 5 of the Migration Act defines ‘migration zone’ as the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: a)land that is part of a State or Territory at mean low water; and b)sea within the limits of both a State or a Territory and a port; and c)piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port.7.As the Application for the Business Visa was lodged online it is deemed to be made ‘in Australia’.8.When visa applications are lodged online, they may be made ‘in Australia’ irrespective of the physical location of the visa applicants. This is because s.14B(1) of the Electronic Transactions Act 1999 (ETA) provides that for the purposes of a law of the Commonwealth, unless otherwise agreed an electronic communication is taken to have been received at the place where the addressee has its place of business.9.It is not until a visa application is received by the Department, in the sense of it taking physical possession of it, that it can be said to have been ‘made’: Mohammed v MIBP [2014] FCCA 139 (Judge Driver, 31 January 2014) at [29]. As an application is not made until it is received by the Department, then by operation of s.14B, unless otherwise agreed by the parties, an internet application is made when it is taken to have been received at the relevant office of Immigration in Australia.10.Therefore, for visa applications lodged online, the physical location of the visa applicants will not generally be determinative of where the applications were made. As referred to in our previous submissions, there is no schedule 1 requirement precluding the Application from being made within or outside Australia.11.In line with the explanation above it is our position, that the correct and preferable conclusion to be drawn by the Tribunal, is that given that the application was ‘made’ in Australia, the application was ‘made’ in the migration zone.12.The text of the definitional constraint contained in s 5 of ‘migration zone’ does not preclude this interpretation. The physical possession of the application by the Department in Australia, would be enough from a factual perspective to satisfy the requirements of both the application being ‘made’ in Australia, and ‘Australia’ being included in the definition of ‘migration zone’.13.Moreover, the insertion of ‘while’ under s 338(2)(b), cannot be interpreted strictly as physical location of the applicant. If it was the parliament’s intention for the applicant to be ‘physically present’ whilst in the migration zone, the text would have expressly set this out. Take for example, the textual provisions under s 347(3) of the Migration Act 1958:(3) If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.14.The provision in that subsection clearly sets out that that the applicant is required to be physically present in the migration zone in order to make an application for review. S 338(2)(b) does not expressly set out physical presence as a requirement.15.Our next exercise is to determine the meaning of ‘while’ in its use in s 338(2)(b). The plurality in Project Blue Sky stated:Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative 20 provision to be read in a way that does not correspond with the literal or grammatical meaning.[1]16.In its ordinary meaning of the word ‘while’ in its conjunctive sense (as it is used in s 338(2)(b)) connotes a period of time that is: ’during which’ or ‘during the time’. Given the above case authority, an application is taken to be made, when physical possession is taken of it. Therefore, when the internet application was made and received by the Department in Australia, it has been taken to be made in Australia (the migration zone).17.Furthermore, in its grammatical sense, we indicate that the provision concerns itself with the location of where the visa application was ‘made’. The provision does not concern itself with the applicant’s physical location. As previously decided case authority indicates, an application may be ‘made’ in Australia, despite the applicant not present in Australia.18.This interpretation would not be inconsistent with our position that when the Department received physical possession of the application in Australia, the Applicant ‘made’ that application in Australia (the migration zone).(c) the decision was not made when the non-citizen: was in immigration clearance; or had been refused immigration clearance and had not subsequently been immigration cleared;19.This provision would not be applicable given the facts.[1] [1998] HCA 28; (1998) 194 CLR 355 at 384 [78].Conclusion 20.On the basis of the above explanations, we submit that the Tribunal does have jurisdiction to review the application before it, as it was ‘made’ in Australia, and the review applicant was present in Australia when the review application was made.
Decision
Reasons for decision
In addition to earlier submissions received in relation to the jurisdiction issues raised by the Tribunal, the Tribunal also received post-hearing written submissions on 28 March 2022 as follows (unedited):1.We refer to the above matter and advise that our representation is only limited to the submissions advanced below.2.We write this submission to clarify the Applicant’s position in relation to whether the Tribunal has jurisdiction to hear his matter.3.S 338(2) states that:A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:(a) the visa could be granted while the non-citizen is in the migration zone; and(b) the non-citizen made the application for the visa while in the migration zone; and(c) the decision was not made when the non-citizen:(i) was in immigration clearance; or(ii) had been refused immigration clearance and had not subsequently been immigration cleared;4.Below we go through each of the provisions required to be met in order to be deemed a Part 5 reviewable decision and apply the facts and the law as they stand.(a) the visa could be granted while the non-citizen is in the migration zone5.Under Schedule 2 of the Migration Regulations 1994 (‘The Regulations’), particularly at clause 188.411, the applicant may be in or outside Australia when the visa is granted. Therefore, the Applicant is not precluded from the visa being granted while the non-citizen is in the migration zone.(b) the non-citizen made the application for the visa while in the migration zone6.S 5 of the Migration Act defines ‘migration zone’ as the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: a)land that is part of a State or Territory at mean low water; and b)sea within the limits of both a State or a Territory and a port; and c)piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port.7.As the Application for the Business Visa was lodged online it is deemed to be made ‘in Australia’.8.When visa applications are lodged online, they may be made ‘in Australia’ irrespective of the physical location of the visa applicants. This is because s.14B(1) of the Electronic Transactions Act 1999 (ETA) provides that for the purposes of a law of the Commonwealth, unless otherwise agreed an electronic communication is taken to have been received at the place where the addressee has its place of business.9.It is not until a visa application is received by the Department, in the sense of it taking physical possession of it, that it can be said to have been ‘made’: Mohammed v MIBP [2014] FCCA 139 (Judge Driver, 31 January 2014) at [29]. As an application is not made until it is received by the Department, then by operation of s.14B, unless otherwise agreed by the parties, an internet application is made when it is taken to have been received at the relevant office of Immigration in Australia.10.Therefore, for visa applications lodged online, the physical location of the visa applicants will not generally be determinative of where the applications were made. As referred to in our previous submissions, there is no schedule 1 requirement precluding the Application from being made within or outside Australia.11.In line with the explanation above it is our position, that the correct and preferable conclusion to be drawn by the Tribunal, is that given that the application was ‘made’ in Australia, the application was ‘made’ in the migration zone.12.The text of the definitional constraint contained in s 5 of ‘migration zone’ does not preclude this interpretation. The physical possession of the application by the Department in Australia, would be enough from a factual perspective to satisfy the requirements of both the application being ‘made’ in Australia, and ‘Australia’ being included in the definition of ‘migration zone’.13.Moreover, the insertion of ‘while’ under s 338(2)(b), cannot be interpreted strictly as physical location of the applicant. If it was the parliament’s intention for the applicant to be ‘physically present’ whilst in the migration zone, the text would have expressly set this out. Take for example, the textual provisions under s 347(3) of the Migration Act 1958:(3) If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.14.The provision in that subsection clearly sets out that that the applicant is required to be physically present in the migration zone in order to make an application for review. S 338(2)(b) does not expressly set out physical presence as a requirement.15.Our next exercise is to determine the meaning of ‘while’ in its use in s 338(2)(b). The plurality in Project Blue Sky stated:Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative 20 provision to be read in a way that does not correspond with the literal or grammatical meaning.[1]16.In its ordinary meaning of the word ‘while’ in its conjunctive sense (as it is used in s 338(2)(b)) connotes a period of time that is: ’during which’ or ‘during the time’. Given the above case authority, an application is taken to be made, when physical possession is taken of it. Therefore, when the internet application was made and received by the Department in Australia, it has been taken to be made in Australia (the migration zone).17.Furthermore, in its grammatical sense, we indicate that the provision concerns itself with the location of where the visa application was ‘made’. The provision does not concern itself with the applicant’s physical location. As previously decided case authority indicates, an application may be ‘made’ in Australia, despite the applicant not present in Australia.18.This interpretation would not be inconsistent with our position that when the Department received physical possession of the application in Australia, the Applicant ‘made’ that application in Australia (the migration zone).(c) the decision was not made when the non-citizen: was in immigration clearance; or had been refused immigration clearance and had not subsequently been immigration cleared;19.This provision would not be applicable given the facts.[1] [1998] HCA 28; (1998) 194 CLR 355 at 384 [78].Conclusion 20.On the basis of the above explanations, we submit that the Tribunal does have jurisdiction to review the application before it, as it was ‘made’ in Australia, and the review applicant was present in Australia when the review application was made.
Ratio Decidendi
Legal Principle Established
Mr Ruwan Tennakoon Mudiyanselage requested that the Tribunal consider whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage meet the primary visa criteria. The Tribunal indicated its concern about its ability to consider all of the primary criteria in relation to the secondary visa applications. Notably, however, as already canvassed earlier in these Reasons, as can be seen from the delegate’s decision, a copy of which was provided to the Tribunal by the applicants, the delegate also assessed whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage could meet the primary criteria for the visa and concluded that cl 188.221, one of the necessary primary criteria to be met for the visa as a primary visa applicant, was not met because no evidence had been provided of either Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage being invited by the Minister to apply for the visa. Whilst evidence has been provided to the Tribunal responsive to other of the primary criteria, no further evidence has been provided in this regard.CONSIDERATIONRuwan Mudiyanselage In addition to earlier submissions received in relation to the jurisdiction issues raised by the Tribunal, the Tribunal also received post-hearing written submissions on 28 March 2022 as follows (unedited):1.We refer to the above matter and advise that our representation is only limited to the submissions advanced below.2.We write this submission to clarify the Applicant’s position in relation to whether the Tribunal has jurisdiction to hear his matter.3.S 338(2) states that:A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:(a) the visa could be granted while the non-citizen is in the migration zone; and(b) the non-citizen made the application for the visa while in the migration zone; and(c) the decision was not made when the non-citizen:(i) was in immigration clearance; or(ii) had been refused immigration clearance and had not subsequently been immigration cleared;4.Below we go through each of the provisions required to be met in order to be deemed a Part 5 reviewable decision and apply the facts and the law as they stand.(a) the visa could be granted while the non-citizen is in the migration zone5.Under Schedule 2 of the Migration Regulations 1994 (‘The Regulations’), particularly at clause 188.411, the applicant may be in or outside Australia when the visa is granted. Therefore, the Applicant is not precluded from the visa being granted while the non-citizen is in the migration zone.(b) the non-citizen made the application for the visa while in the migration zone6.S 5 of the Migration Act defines ‘migration zone’ as the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: a)land that is part of a State or Territory at mean low water; and b)sea within the limits of both a State or a Territory and a port; and c)piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port.7.As the Application for the Business Visa was lodged online it is deemed to be made ‘in Australia’.8.When visa applications are lodged online, they may be made ‘in Australia’ irrespective of the physical location of the visa applicants. This is because s.14B(1) of the Electronic Transactions Act 1999 (ETA) provides that for the purposes of a law of the Commonwealth, unless otherwise agreed an electronic communication is taken to have been received at the place where the addressee has its place of business.9.It is not until a visa application is received by the Department, in the sense of it taking physical possession of it, that it can be said to have been ‘made’: Mohammed v MIBP [2014] FCCA 139 (Judge Driver, 31 January 2014) at [29]. As an application is not made until it is received by the Department, then by operation of s.14B, unless otherwise agreed by the parties, an internet application is made when it is taken to have been received at the relevant office of Immigration in Australia.10.Therefore, for visa applications lodged online, the physical location of the visa applicants will not generally be determinative of where the applications were made. As referred to in our previous submissions, there is no schedule 1 requirement precluding the Application from being made within or outside Australia.11.In line with the explanation above it is our position, that the correct and preferable conclusion to be drawn by the Tribunal, is that given that the application was ‘made’ in Australia, the application was ‘made’ in the migration zone.12.The text of the definitional constraint contained in s 5 of ‘migration zone’ does not preclude this interpretation. The physical possession of the application by the Department in Australia, would be enough from a factual perspective to satisfy the requirements of both the application being ‘made’ in Australia, and ‘Australia’ being included in the definition of ‘migration zone’.13.Moreover, the insertion of ‘while’ under s 338(2)(b), cannot be interpreted strictly as physical location of the applicant. If it was the parliament’s intention for the applicant to be ‘physically present’ whilst in the migration zone, the text would have expressly set this out. Take for example, the textual provisions under s 347(3) of the Migration Act 1958:(3) If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.14.The provision in that subsection clearly sets out that that the applicant is required to be physically present in the migration zone in order to make an application for review. S 338(2)(b) does not expressly set out physical presence as a requirement.15.Our next exercise is to determine the meaning of ‘while’ in its use in s 338(2)(b). The plurality in Project Blue Sky stated:Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative 20 provision to be read in a way that does not correspond with the literal or grammatical meaning.[1]16.In its ordinary meaning of the word ‘while’ in its conjunctive sense (as it is used in s 338(2)(b)) connotes a period of time that is: ’during which’ or ‘during the time’. Given the above case authority, an application is taken to be made, when physical possession is taken of it. Therefore, when the internet application was made and received by the Department in Australia, it has been taken to be made in Australia (the migration zone).17.Furthermore, in its grammatical sense, we indicate that the provision concerns itself with the location of where the visa application was ‘made’. The provision does not concern itself with the applicant’s physical location. As previously decided case authority indicates, an application may be ‘made’ in Australia, despite the applicant not present in Australia.18.This interpretation would not be inconsistent with our position that when the Department received physical possession of the application in Australia, the Applicant ‘made’ that application in Australia (the migration zone).(c) the decision was not made when the non-citizen: was in immigration clearance; or had been refused immigration clearance and had not subsequently been immigration cleared;19.This provision would not be applicable given the facts.[1] [1998] HCA 28; (1998) 194 CLR 355 at 384 [78].Conclusion 20.On the basis of the above explanations, we submit that the Tribunal does have jurisdiction to review the application before it, as it was ‘made’ in Australia, and the review applicant was present in Australia when the review application was made.
