Thai (Migration)
[2019] AATA 3978
•12 August 2019
Thai (Migration) [2019] AATA 3978 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Phong Nha Thai
Mr Son Thai
Ms Khanh Linh ThaiCASE NUMBER: 1727726
DIBP REFERENCE(S): BCC2016/3067157
MEMBER:Sheridan Lee
DATE:12 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review.
Statement made on 12 August 2019 at 1:01pm
CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 – applicant was only in Australia for 350 days of the relevant two year period– no power to waive or overlook this requirement – not suitable for Ministerial Intervention referral – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 1, Schedule 2, cls 890.217, 890.321
CASES
Lee v MIMAC (2013) 215 FCR 109
Potier v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 503STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 October 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
Mr Thai applied for the visa on 1 September 2016. The criteria for the grant of a Subclass 890 visa are set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether the applicant meets the requirements in cl.890.217. In order to satisfy this clause, the applicant must have been in Australia as the holder of one of the visas mentioned in paragraph 1104B(3)(d) of Schedule 1 to the Regulations for a total of at least one year in the two years immediately before the application was made.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.890.217 as he was only in Australia for 350 days of the relevant two year period.
The applicants first appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. However, there were some concerns with the interpretation of the hearing during the preliminary discussions and the applicant requested that the matter be adjourned until such time as a Vietnamese interpreter from the North of Vietnam could be sourced. The hearing was reconvened on 6 March 2019. The applicant indicated that he could understand the second interpreter clearly. The Tribunal also received oral evidence from the second named applicant, Mr Son Thai.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Primary applicant
The regulations make clear that at least one member of the family unit who are applicants for the visa must meet the primary criteria. Nevertheless, in an application for a Class DF made by multiple applicants, it is necessary for a ‘discriminating choice’ to be made by such applicants as to which of them will be put forward as the ‘applicant seeking to satisfy the primary criteria’.[1]
[1] Lee v MIMAC (2013) 215 FCR 109 at [14].
In the current matter, Mr Phong Nha Thai was selected for this purpose on the visa application form and this choice was confirmed in submissions dated 5 December 2018.
Did the applicant hold the necessary visa?
Departmental records show that the applicant held a State or Territory Sponsored Investor (Provisional) visa, Subclass 165, prior to submitting the current application. The Subclass 165 visa is one of the visas set out in paragraph 1104B(3)(d) of Schedule 1 of the Regulations.
Was the applicant in Australia for the necessary period?
Recourse to the decision of the delegate, which was provided to the Tribunal by the applicant, shows that the two year period from 1 September 2014 to 31 August 2016 was used for the purpose of calculating the applicant’s time in Australia. During that time, the applicant was in Australia for 350 days – 15 days short of the required 365.
At the hearing, the applicant conceded that he was not in Australia for 365 days during the period 1 September 2014 to 31 August 2016, however he would have been in Australia for the necessary one year if a different period were used for the purpose of the assessment. The applicant suggested that the period from 10 July 2014 to 10 July 2016 be used for this purpose.
The applicant gave evidence that he was required to depart Australia on 10 July 2016 to return to Vietnam in order to deal with an emergency at the construction site of the Chau Thang hydropower project in Nghe An province. At the time of his departure he had been in Australia for 368 days. He returned to Australia on 24 August 2016. Due to this relatively brief absence, he fell short of the necessary 365 days when his visa was application was lodged on 1 September 2016.
The applicant outlined that he has invested more than $10 million in Australian farming and would like to continue contributing to the Australian community. He gave evidence that his son has graduated from study and now manages the farm and his daughter is currently studying law at Monash.
In submissions dated 5 December 2018, the applicant’s representative contended that the term ‘immediately before’ is not defined in the Act and it is arguable that ‘2 years immediately before the Application is made’ comprises a broader period than the penultimate day. Based on an assessment of the dictionary definition, case law and departmental policy on a similarly worded provision, it was submitted that rather than the two year period ending when the visa application was lodged, the two year period ending ‘promptly before’ or ‘a reasonable time before’ or ‘a period without delay before’ the lodgement date and not necessarily the penultimate date prior to the lodgement of the application should be used.
The representative outlined that the Encyclopaedic Australian Legal Dictionary defines ‘immediately’ as follows:
Time Promptly; without delay; at once; as soon as reasonably possible in the circumstances, taking into account the nature of the act to be done: Measures v McFayden (1910) 11 CLR 723; 11 SR (NSW) 369. It is a matter of degree; the word is stronger that the expression ‘within a reasonable time’: Dorsman v Nichol (1978) 20 ALR 231.
The applicant’s representative also drew the Tribunal’s attention to the commentary on the word ‘immediately’ in Pearce & Geddes, Statutory Interpretation in Australia,[2] in which it is noted that:
The effect of the word ‘immediately’ varies with its context and it may be impossible to lay down any hard and fast rule as to its meaning (citing Cockburn CJ in R v Justice of Berkshire (1878) 4 QBD 469 at 471).
[2] (2014), 8th ed
The Tribunal notes, that the commentary provided by Pearce and Geddes goes on to say:
It is clearly a term that requires more rapid action than ‘within a reasonable time’ (Dorsman v Nichol (1978) 20 ALR 231 at 237) and presumably than ‘as soon as possible’ and ‘as soon as practicable’. Kearney J in Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 34; 117 FLR 135 at 138, in what is perhaps the fullest discussion of the word in Australia, followed a description in Lister v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 at 567 that the word ‘in its ordinary signification … involves the notion that there is, between two relevant events, no intervening space, lapse of time or event of any significance’. If action is to be immediate, it must be prompt, vigorous and without any delay: Dorsman's case, above.
‘Immediately before’ or ‘immediately after’ a designated event refers to a more confined period than simply ‘before’ or ‘after’: Loizos' case, above; Commissioner for Superannuation v Bayley (1979) 41 FLR 385 at 401–2; 28 ALR 293 at 315, respectively. But the circumstances will determine the proximity to the event that is necessary. It may not, for example, be possible to give a notice forthwith after an event because a person is not available to receive it. In such a case, ‘immediately’ means ‘as immediately as the circumstances permit’: Loizos' case. On the other hand, the context may determine that ‘immediately before’ an event means the last moment of time before the event: Equity Trustees Executors & Agency Co Ltd v Commissioner of Probate Duties (1976) 135 CLR 268; 10 ALR 131: ‘immediately before death’.
The submissions drew a comparison between cl.890.217 and the requirement to provide financial statements for business visas. Highlighting that departmental policy says the term ‘immediately before the application is made’ means the 3-month period prior to the date the visa application was made’. Finally, the submissions drew attention to case law reinforcing that the meaning of immediately will depend on the context in which it appears.[3]
[3] Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31; Perfect v Northern Territory (SC(NT))(29 May 1992, unreported).
In relation to the calculation of time in Commonwealth legislation, subsection 36(1) of the Acts Interpretation Act 1901 provides:
(1)A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Column 1 Column 2
Item If the period of time: then the period of time:
1 is expressed to occur between 2 days includes both days.
2. is expressed to begin at, on or with a includes that day.
specified day
3. is expressed to continue until a includes that day.
specified day
4. is expressed to end at, or on or with a includes that day.
specified day
5. is expressed to being from a specified day does not include that day.
6. is expressed to begin after a specified day does not include that day.
7. is expressed to end before a specified day does not include that day.
[Tribunal emphasis]
Specifically, the period referred to in clause 890.217 is not expressed in terms of ending at, on or with the lodgement of the visa application. Rather, it requires the applicant to have been in Australia for a total of at least one year in the period of two years ending immediately before the application was made. Accordingly, the Tribunal considers that the relevant item in the table attached to subsection 36(1) of the Acts Interpretation Act is item 7, as it applies to time periods expressed to end before a specified day.
The Tribunal has considered the fact that the wording of cl.890.217 does not specifically state that the relevant two years end immediately before the day on which the application is made. Instead, it refers to the relevant two years ending immediately before the application is made. Nevertheless, the Tribunal observes that the relevant event, in the terms discussed by Pearce and Geddes, is the lodgement of the visa application. As a matter of practical reality this event must take place on a particular day, as an application can only be considered to have been made once it has been validly lodged, and this event always takes place on a “day”.
Notably, in Potier v Minister for Immigration and Multicultural and Indigenous Affairs[4] the Federal Court held the making of an application for a bridging visa was an “act” or “event” within subsection 36(1) of the Acts Interpretation Act. Further, while the Tribunal is not bound by its own previous decisions, it notes that this interpretation of the relevant period of time is consistent with other decisions of this Tribunal made in the context of cl.890.217.[5]
[4] [2000] FCA 503 at [25]
[5] See, eg, DAI (Migration) [2019] AATA 1027; Arthanari (Migration) [2019] AAT 2143; BATHAEI (Migration) [2019] AATA 1028.
While the Tribunal may have regard to departmental policy, it should not treat departmental policy as determinative, but must bring its consideration back to the terms of the legislation. In this case, the policy highlighted by the representative relates to a different clause of the Regulations and its application to cl.890.217 arguably goes beyond the Regulations.
Having regard to the wording of cl.890.217, the Acts Interpretation Act 1901, the submissions of the applicant, and the relevant case law, the Tribunal finds that the correct time period over which the applicant’s presence in Australia should be assessed was from 1 September 2014 to 31 August 2016. Accordingly, based on the applicant’s departmental movement records, which the applicant confirmed as correct at the hearing, the Tribunal finds that the applicant was present in Australia for 350 days in the period of two years ending immediately before the application was made on 1 September 2016.
The Tribunal acknowledges that the applicant and his family relied on the advice of their former migration agent and are dismayed that such a seemingly technical over sight could derail their plans to permanently migrate to Australia. Nevertheless, the Tribunal must find that the applicant does not comply with the requirements of cl.890.217. The applicable law does not give the Tribunal any power to waive or overlook this requirement.
As the primary applicant does not satisfy the criteria for the grant of the Subclass 890 visa, the Tribunal must find that the second and third named applications do not satisfy cl.890.321 as they are not the member of the family unit of a person who is the holder of a Subclass 890 visa.
Request for Ministerial Intervention
The applicant’s representative made a request for the matter to be flagged for the possible exercise of the Minister’s discretion under s.351 of the Act. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister.
I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.
DECISION
The Tribunal affirms the decision under review.
Sheridan Lee
Member
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