Yang v Minister for Immigration
[2005] FMCA 625
•13 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YANG v MINISTER FOR IMMIGRATION | [2005] FMCA 625 |
| MIGRATION – Business visa – whether error by Migration Review Tribunal – supplier – dictionary definition for purposes of Regulation 457.223(8) of Migration Regulations. |
| Migration Act 1958 (Cth) Migration Regulations 1994 |
| Yang v Minister for Immigration & Multicultural &Indigenous Affairs (2003) FCA 1524 NABE vMIMIA (No 2) [2004] FCAFC 263 NADR vMinister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 Cozens v Brutus [1973] AC 653 Coleman v Power (2004) 209 ALR 182 |
| Applicant: | TAO YANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 709 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson |
| Solicitors for the Applicant: | Haag Walker Lawyers |
| Counsel for the Respondent: | Mr S Hay |
| Solicitors for the Respondent: | Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 709 of 2004
| TAO YANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application the applicant, who is a citizen of China, relies upon an amended application filed 12 April 2005 seeking review of a decision of the Migration Review Tribunal (the MRT) which had affirmed a decision of a delegate of the Minister refusing the grant of a business visa.
The applicant had applied for a temporary business entry (class UC) visa on 21 October 2002. On 14 May 2003 a delegate of the respondent refused to grant the applicant the visa. That refusal, in turn, was the subject of an application to the MRT made by the applicant on 10 June 2003. The MRT affirmed the delegate's decision to refuse to grant the applicant a business visa on 30 June 2003 (the first MRT decision).
On 18 August 2004 his Honour Marshall J of the Federal Court set aside the first MRT's decision and did so by a decision made on 30 June 2003 (Yang v Minister for Immigration & Multicultural &Indigenous Affairs (2003) FCA 1524) Marshall J determined that the matter should be referred to a differently constituted MRT to review the matter according to law. In his reasons for judgment his Honour sets out relevant facts, which for the sake of convenience I reproduce below as it sets out what I regard as an accurate summary of the facts
“3 The applicant is a citizen of the People's Republic of China. He first entered Australia on 17 February 1999 on a Short Stay (Visitor) (Class TR) Visa, Subclass 676 (Tourist (Short Stay)) and departed Australia on 6 March 1999. Between 4 August 1999 and 14 August 1999 he visited Australia on a second Subclass 676 Visa. On 14 January 2000 the applicant entered Australia on a Temporary Business Entry (Class UC) Visa, Subclass 456 (Business (Short Stay)), which expired on 14 February 2000. On 10 February 2000, the applicant applied for a Temporary Business Entry (Class UC) Visa, Subclass 457 (Business (Long Stay)). The applicant was granted several bridging visas while his application was being processed. On 22 April 2002 the applicant was granted a Subclass 457 Visa, valid until 22 October 2002.
4 On 21 October 2002 the applicant lodged an application for a second Temporary Business Entry (Class UC) Visa, Subclass 457 (Business (Long Stay)) ("the Visa"). On 28 November 2002 a delegate of the respondent refused the application for the Visa. The applicant applied to the Tribunal for review of the delegate's decision on 6 December 2002. On 30 June 2003, the Tribunal affirmed the delegate's decision that the applicant was not entitled to the grant of the Visa.
5 The applicant's application on 10 February 2000 for a Temporary Business Entry (Class UC) Visa, Subclass 457 (Business (Long Stay)) was made on the basis that he was a service seller, and fell within subclass 457.223(8) of the Migration Regulations. He claimed that he was involved in setting up cultural and educational exchanges between Harbin in China and educational institutions in Australia.
6 Before the Tribunal, the applicant referred to the activities he had been involved in since arriving in Australia, which are relevant to the consideration of the issues before this Court. He stated that he worked about two or three days a week and that his duties included visiting schools and arranging visits for Chinese dignitaries to Australian schools. He claimed before the Tribunal that he was involved in a joint educational program, which aimed to send Chinese students to Australia and send Australian students to study Chinese language and culture in China. A letter of intention evidenced some negotiations between the Northern Metropolitan College of TAFE and the Harbin Agricultural College, but the agreement was not yet concluded and he was awaiting a response from the local education committee in Harbin, expected this year.
7 The applicant also claimed to be authorised by the Harbin Municipal Committee to recruit students to study in Harbin, and that he had engaged an agent for the recruitment. His role was to locate schools and universities in Australia to be matched with similar schools and universities in China. The applicant stated that he had visited many schools in Australia, but had only made one visit in 2003. The applicant outlined several difficulties he had encountered, including his inability to speak English; that the Australian educational system is more advanced than in China; and that Harbin is in northern China and is unattractive to overseas students. Although the Harbin Municipal Committee provided him with funds for an interpreter, he stated that the main reason he had not visited schools in 2003 was that preparations for his visa application took up much of his time. He stated that two of his friends had travelled to China to study in 2002.
8 The application made on 21 October 2002, which is the subject of this review, requested a visa for two years based on sponsorship by a business outside Australia to establish or assist in establishing a business in Australia. In an accompanying submission, the applicant's migration agent indicated that the application was made in accordance with clause 457.223(8) of Schedule 2 of the Migration Regulations.
9 Section 31 of the Migration Act provides that there are to be prescribed classes of visas (s 31(1)) and that the regulations may prescribe criteria for a visa or visas of a specified class (s 31(3)). If the Minister is satisfied that the prescribed criteria have been satisfied, s 65(1) of the Migration Act provides that he or she is to grant the visa.
10 Clause 457 of Schedule 2 of the Migration Regulations prescribes criteria for a Subclass 457 (Business (Long Stay)) Visa. Clause 457.223 provides that the criteria to be satisfied are that the applicant meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9). Subclause (8) provides:
‘(8) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is a representative of a supplier of services who is located outside Australia; and
(ii) proposes to represent the supplier in Australia; and
(b) the representation involves negotiating, or entering into agreements, for the sale of services but does not involve the actual supply, or direct sale, of the services; and
(c) the Minister is satisfied that the proposal has not been made only for the purposes of securing the entry of the applicant to Australia.’
11 Subclause (6) of cl. 457.223 prescribes criteria for a Subclass 457 (Business (Long Stay)), `Sponsorship by overseas business', for applicants who propose to supply or sell services on behalf of an overseas business. Item 1223A(1)(ab) of Schedule 1 to the Migration Regulations requires that a visa application based on sponsorship by an overseas business may only be made outside Australia.
12 The delegate of the Minister assessed the applicant's application against subclause (6), subclause (8) and subclause (4) (sponsorship or nomination by an Australian business) of cl. 457.223 of the Migration Regulations. In respect of the applicant's claim to be a person sponsored by a business outside Australia, the delegate noted that the applicant was in Australia when he made the application and therefore, in accordance with Item 1223A(1)(ab) of Schedule 1 of the Migration Regulations, the application was not valid. With respect to the applicant's claim to fall within subclause (8), the delegate found that the applicant was not planning to negotiate or enter into agreements for the sale of services and that the evidence indicated that the applicant proposed to supply or sell services on behalf of an overseas business. The delegate found in consequence that the criteria for subclause (8) was not met. The delegate considered that the application could not succeed under subclause (4) as there had been no sponsorship or nomination by an Australian business lodged.”
The decision which is sought to be reviewed in this court accordingly is a second MRT decision which was made on 2 June 2004 where the MRT, though differently constituted, again affirmed the delegate's decision to refuse the applicant a business visa. Following the second MRT decision, the applicant applied to this court on 8 July 2004 for review of that decision, though, as indicated earlier, relies upon an amended application filed on 12 April 2005. The applicant has also relied upon contentions of fact and law filed on the same day, and it is useful to set out in this judgment the summary of argument of what is described as the justiciable error in the second MRT decision. It is contended on behalf of the applicant that the MRT decision was effected by an excess of jurisdiction or constructive failure of jurisdiction by reason of the following:-
“(i)The tribunal made an error of fact in misunderstanding or misconstruing the basis of the claim advanced by the applicant that the organisation which he represented was responsible for the education and welfare of students in Harbin province and based its conclusion upon the claim so misunderstood or misconstrued and/or failed to deal with the case as put on this basis.
(ii)The Tribunal misconstrued the criterion in subclause 457.228(8)(a) and (b) as to the meaning of the term 'supplier of services located outside Australia' by focusing on the character of the services being provided by the representative in Australia and his activities rather than the services in PRC which are the subject of any negotiations and/or agreements.
(iii)The Tribunal misconstrued the criterion in subclause 457.228(8)(a) and (b) as to the requirements which needed to be satisfied by imposing a gloss that any supplier of services be a business and be involved in making profits.
(iv)The Tribunal failed to ask the question whether the applicant proposed to engage in negotiations or enter agreements but instead limited its consideration to the applicant's past performance as a representative.”
Relevant regulation
It is noted that in the circumstance of this case, to be granted a business visa the applicant is required to satisfy regulation 457.223(8) of the Migration Regulations which provides as follows:-
“Service Sellers
(8) The applicant meets the requirement of this subclause if:
(a) the applicant
(i) is a representative of a supplier of services who is located outside Australia; and
(ii) proposes to represent the supplier in Australia; and
(b)the representation involves negotiating, or entering into agreements, for the sale of services but does not involve the actual supply, or direct sale, of the services; and
(c)the Minister is satisfied that the proposal has not been made only for the purposes of securing the entry of the applicant to Australia.”
It is submitted, and I accept, that the application turns on a proper construction of regulation 457.223(8)(a)(i) and to a somewhat lesser extent regulation 457.223(8)(b).
The MRT's decision
The MRT found the applicant did not satisfy the appropriate regulation for the following reasons:-
·The applicant's proposed principal could not be regarded as a current or proposed "supplier" of services;
·The applicant did not have the necessary skills to negotiate agreements with Australian educational institutions on behalf of Chinese educational institutions; and
·The applicant did not have the authority to contract (as agent of Chinese educational institutions) with Australian educational institutions.
In the course of its decision the MRT under the heading "Evidence" recites part of the applicant's evidence in the following terms:-
“25.At the hearing the visa applicant said that he had applied through his previous agent for a visa for which "was not admissible" [That is, under regulation 457.223(5) nominated by an overseas business]. He is now making an application on the basis of being service seller. He said he was representing only one organisation, Leader Office Harbin Association of Student’s Moral and Education, a "government office, a non-profit organisation". The visa applicant said that his activities were in two parts. First, to provide free promotion of Chinese universities for students in Australia to go to China to study. He said the promotion took the form of "much advertising", but later said the advertising consisted of one only advertisement in The Age newspaper last year. It was not successful in attracting enquiries. He is planning another approach in June or July this year. Asked to explain what he meant by "free", the visa applicant said he accepted funding from China and did not receive payment from any other parties.
26.The second activity is to provide information about Chinese universities to Australian universities which are seeking cooperation. He said he found it hard to provide this service because he did not speak English. However, he had engaged native speakers to approach Australian schools and universities. He initially said that he had entered into a "sharing agreement" with Jonathan Wong [principal of Jonathan Wong Lawyers and the visa applicant’s current migration agent] but did not have a copy of the agreement with him; then he said there was no written agreement but there was a memorandum of understanding; then that the memorandum was not signed; and that there was no written document about their arrangement. The Tribunal informed the visa applicant that it considered he was being very evasive about his business arrangements. He said that the arrangement was for Mr Wong to approach TAFE colleges and other institutions to explain their concept of agreements and to obtain agreements with the accounting and nursing departments in those institutions. The agreements being sought were for Australian institutions to provide education courses in China, but China would be in charge of all students. However, at present no such agreement had been obtained or made. He himself did not enter into the agreements and did not have authority to enter into agreements.”
Under the heading "Findings" the MRT makes the following statements:-
“39.For the purpose of this review the Tribunal accepts the essential claim made by the visa applicant at the hearing that he represents a unit of local government in Harbin City, a "government office, a non-profit organisation". The name of the organisation is somewhat uncertain partly because of translation variations, partly because of name changes over time, and partly because of some confusion about which authority appointed the visa applicant to which position of the Harbin City administration. Again, for the purpose of this review, the Tribunal accepts the claim made by the visa applicant at the hearing and finds that the visa applicant represents ‘Leader Office Harbin Association of Student’s Moral and Education’, a local government authority.
40.The service to be supplied is described in the visa applicant’s agent’s submission as educational services. The visa applicant’s agent’s submission draws attention to a finding of the previous Tribunal [at 33] that the ‘Harbin Municipal Committee of the Chinese Communist Party’ (abridged to Harbin Municipal Committee) "is a supplier of services, namely a provider of educational services." The visa applicant’s agent contended that the visa applicant continued to act as a representative of the same organisation and that the organisation was a supplier of educational services. Nothing appears to swing on the names used for the visa applicant’s employer in this case. This Tribunal is not bound by the findings of the previous Tribunal and has conducted the review de novo.
41.The visa applicant’s agent’s submission quotes Rizzotti v Minister for Immigration and Multicultural Affairs [2001] FCA 172 to the effect that ‘education’ qualifies as a service, which the Tribunal accepts. However, the character of the service being provided is further described by the agent’s submission, and in the ‘Proposal and Marketing Plan’, as "the development and promotion of cooperation and exchange programs between Australian universities and universities in our city". The service to be supplied is described by the visa applicant as (a) to provide free promotion of Chinese universities for students in Australia to go to China to study, and (b) to provide information about Chinese universities to Australian universities which are seeking cooperation.
42.The agent and visa applicant have earlier claimed that the visa applicant had been successful in having completed certain agreements between Australian institutions and universities in China, but at the hearing the visa applicant said at present no such agreement had been obtained or made.
43.In regard to regulation 457.223(8)(a), the visa applicant must propose to be a representative of a supplier of services who is located outside Australia. In principle, the arrangements for student and teacher exchanges which the visa applicant is to negotiate, are between Australian students and universities on one side and educational institutions in Harbin, China on the other. The local government authority which the visa applicant represents is not party to these arrangements. The services to be provided by the educational institutions in China are clearly in the nature of ‘education’, broadly characterised as teaching and learning programs, exchanges of academic staff and the like. However, the organisation which the visa applicant represents, and which pays him, is a local government authority. The visa applicant said that the municipal authority is not a business, and is not engaged in making profits, but rather he is a representative of the equivalent of an education department. This supports the Tribunal’s view that the local government authority is not a supplier of education. In other words, the organisation which the visa applicant represents is not a party to the arrangements he is to negotiate and the visa applicant specifically stated that he does not have authority to enter into contractual arrangements on behalf of the educational institutions.
44.The Tribunal finds that the visa applicant is a representative of ‘Leader Office Harbin Association of Student’s Moral and Education’; that ‘Leader Office Harbin Association of Student’s Moral and Education’ is located outside Australia; that ‘Leader Office Harbin Association of Student’s Moral and Education’ is a local government authority; and that ‘Leader Office Harbin Association of Student’s Moral and Education’ is not a supplier of educational services. The Tribunal finds that the services, of which the visa applicant purports and proposes to represent the supplier, are not those provided by the party which the visa applicant represents or proposes to represent. On this basis the visa applicant does not meet the requirement of regulation 457.223(8)(a).
45.In regard to regulation 457.223(8)(b), the visa applicant’s representation must involve negotiation, or entering into agreements, for the sale of services on behalf of suppliers of services located outside of Australia. The Tribunal notes, following Yang, that the representation in regulation 457.223(8)(b) is to be interpreted as the proposed or future representation by the visa applicant, not his past and present representation, if any. On his own evidence, the visa applicant has experienced considerable difficulty in making representations because of his lack of English language and limited understanding of the Australian education system. He the structure of Australian universities as "most are private universities" and the Australian Qualifications Framework as an accreditation process, which it s not. The Tribunal is not satisfied that the visa applicant has the necessary knowledge and skills to represent in Australia a supplier of educational services. Also on his own evidence, the visa applicant does not have authority to enter into contractual arrangements for the sale of the services from the education service suppliers. For these reasons the Tribunal finds that the visa applicant does not meet the requirement of regulation 457.223(8)(b).”
It is also clear that the MRT had regard to the decision of Marshall J in the decision Yang v Minister for Immigration and Multicultural and Indigenous Affairs and made reference specifically to the decision in paragraph 46 of its decision as follows:-
“46.In regard to regulation 457.223(8)(c), Marshall J. in Yang found that this clause would not apply to a person already in Australia, stating at [25]:
The Tribunal found adversely to the applicant on the criterion in cl. 457.223(8)(c) of Schedule 2 of the Migration Regulations. As set out above, this clause requires that the Minister be satisfied "that the proposal has not been made only for the purposes of securing the entry of the applicant to Australia." The applicant submitted that this criterion had no application to the applicant, in circumstances where the applicant was already in Australia, and therefore, the applicant contended, it could not be said that the proposal was made for the purposes of securing the entry of the applicant to Australia. The respondent conceded that the criterion would not apply to a person already in Australia. It follows that the Tribunal erred in finding that the criterion in cl. 457.223(8)(c) was not satisfied.
47.The Tribunal is bound by his Honour's approach to the assessment of sub clause 457.223(8)(c ) and accordingly finds that the visa applicant meets clause 457.223(8)(c).”
Ultimately the MRT reached the following conclusion:-
“48.For the reasons given above, the Tribunal finds that the visa applicant does not meet regulation 457.223(8). In view of other findings, the Tribunal now finds that the visa applicant does not meet any of the eight alternative "streams" under regulation 457.223(1) and therefore does not meet regulation 457.223 as a whole.”
The Grounds
Misunderstanding basis of claim – subclause 8(a) and (b)
Applicant’s submissions
It was submitted that it is important to emphasise that for the purpose of the grounds of review advanced, that the MRT did not consider that anything turned on the various differences in the names of the organisations of which the applicant was the representative in Australia. The court was referred to the relevant passage in the MRT decision where it sets out the different names of the organisation the applicant purports to represent as follows:-
“36.The visa applicant has claimed in various submissions to the Department and to the Tribunal to be representing ‘Leader Office Harbin Association of Student’s Moral and Education’; ‘Harbin Institute’; ‘Office of Students’ Ideological Education Board, City of Harbin’; ‘Office in Charge of Student Ethics Affairs, Harbin City’; ‘Harbin Municipal Education Committee’; ‘Harbin Municipal Authority’; ‘Harbin Municipal Committee of the Chinese Communist Party’ and ‘Bei Hua University’; but at the hearing stated that he represented only one organisation and that was ‘Leader Office Harbin Association of Student’s Moral and Education’, a "government office, a non-profit organisation".
On behalf of the applicant it is submitted that in support of the first ground of review there was a failure on the part of the MRT to appreciate for the purpose of making its findings on the issue of whether ‘Harbin’ was a supplier of services the fact that it was responsible for the education and welfare of students in the Harbin Province. It is in that capacity it is claimed that it appointed the applicant to be its representative to be responsible for education in Australia at the secondary and tertiary level. That omission confirms, according to the submissions on behalf of the applicant, that the MRT either made an error of fact in misunderstanding or misconstruing the basis of the claim advanced by the applicant and based its conclusion upon the claim so misunderstood or misconstrued and/or failed to deal with the case as put on this basis.
It is claimed that on the first of these two alternative interpretations of the MRT reasons, the error is tantamount to a failure to consider the claim and accordingly constitutes jurisdictional error (see NABE vMIMIA (No 2) [2004] FCAFC 263 at [63]). Emphasis was placed on the suggestion that although different named organisations were mentioned, that is, different universities, and that they would appear to be separate institutions, that they are nonetheless state‑run bodies. It is implicit in the case of the applicant that what was put is that Harbin, as the local state authority responsible for education, had what is described as "an umbrella role and under its auspices the various initiatives in contemplation between PRC and Australia leading to agreements with individual Chinese universities would be conducted". It was submitted that on a case presented in that manner the applicant was a representative of the education authority and a conduit through which arrangements ultimately would be entered into by Australian students or universities with Chinese educational institutions under the auspices of the municipal/provincial authorities, that is, Harbin. On any view, it was argued that "this is the early stage of 'negotiations' for the ultimate sale of 'educational services'". It is argued that the criterion in subclause (a) and (b) does not refer to "sellers" of services, rather "suppliers". This, it is submitted, is a broader concept and does not mandate that the supplier necessarily be the party which ultimately enters into a contractual agreement for the sale of the services. This fact has implications for the second and third ground for review advanced as well, according to the applicant's submissions. An argument was advanced for and on behalf of the applicant that the MRT conflated the issue of "services provided outside Australia" with the issue of "activities of the applicant and services to be provided within Australia".
Respondent's submissions
It was submitted on behalf of the respondent that there is no evidence contained in the court book, nor any mention in the material in the decision that supports the contention that "Leader Office Harbin Association of Students Moral and Education" is responsible for students' education. It is submitted therefore there is no basis upon which to submit that the MRT misconstrued the applicant's claim in the way alleged. It is further submitted that the MRT's findings of fact are binding on the proceeding and cannot be reviewed (see NADR vMinister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167). In relation to the issue of the term "supplier", it was noted that that term is not defined in the Migration Act 1958 (the Act) or the Migration Regulations 1994 (the regulations). The respondent submitted that the term "supplier" must be given its ordinary and natural meaning (see Cozens v Brutus [1973] AC 653; Coleman v Power (2004) 209 ALR 182).
The court's attention was drawn to the Oxford English Dictionary (second edition) definition where it defines the relevant sense of "supplier" as "one who (or that which) furnishes something needed; a provider, purveyor". Butterworth's Australian Legal Dictionary defines the term as "one who provides goods or services by way of sale". It is submitted on behalf of the respondent that in the context of regulation 457.223(8)(a)(i) and (ii) that the term "supplier" refers to a person (or entity) directly involved in the provision of services. The term does not refer to a mere promoter of services of a third person or entity.
In dealing with the contention of the applicant that there was no evidence before the MRT from which it could infer that the applicant's proposed sponsor was not involved (contractual or otherwise) in the services proposed to be delivered, it was submitted by the respondent that this ignores the MRT's own observations in its decision where it states the following:-
“It was further submitted that the visa applicant was not involved in the actual supply or sale of education and his letter of appointment described his duties as including recruiting English teaching staff for the Leader Office Harbin Association of Students Moral and Education, and handling all education exchange programs. The role of the visa applicant was described as an intermediary, bringing two parties together rather than as a supplier.”
It was submitted that having regard to that extract, there was clearly evidence to which the MRT alluded to support its finding in this regard.
Reasoning
In relation to the first ground relied upon by the applicant, in my view a proper reading of the MRT's reasoning indicates in clear terms that it was addressing the correct issue and seeking to determine as part of its fact‑finding mission whether in truth and in fact the MRT could find that indeed the organisation referred to was indeed an organisation which could properly be described as something other than a mere promoter of services. More importantly, it addressed the key issue of whether or not the organisation could properly be regarded as a supplier. In reaching its conclusions and noting that there is an absence of any statutory definition, I do not see any error in the reasoning of the MRT which would encourage me to conclude that this is an appropriate ground to be relied upon in the exercise of judicial review. The MRT has simply embarked upon the task of determining whether indeed the applicant is a representative of a supplier of services who is located outside Australia. If it is satisfied that he is not a representative of a supplier of services but rather represents, in the vague terms described in the material before it, an organisation which might otherwise be properly regarded as a promoter of services, then I can see no error in the reasoning or conclusions of the MRT. In my view, its conclusions were reasonably open to it and do not disclose an error of law in respect of this ground. The ground should therefore fail.
Misconstruction of criterion – ‘supply of services’ subclause 8(a) and (b)
Applicant’s submissions
A further argument was advanced for and on behalf of the applicant, as I understood it, that the MRT had "conflated" the issue of services provided outside Australia with the issue of "activities of the applicant and services to be provided in Australia". Specifically, in paragraph 19 of the contentions the applicant states the following:-
“19The Tribunal noted the activities in Australia which the applicant proposed to undertake (at CB 338 at par [25]-[26]). It returned to this issue when attempting to identify the 'services' which Harbin supplied (at [40]). However at [41] the tribunal conflates the issue of the services provided outside of Australia with the issue of the activities of the visa applicant and the services to be provided within Australia i.e free promotion and information (see also CB 252). It then says, ‘the character of the service being provided is further described as …’ and the 'service to be supplied is described' ... as services which reflect the role of the representative in Australia, not the services 'supplied' in the PRC."
As I understand it, it is sought to be argued by the applicant that the MRT in doing so treated the representative activities in Australia as relevant to and part of the test for establishing the meaning of "supplier of services" located outside Australia. That approach involves a misconstruction of the criterion in subclause 457.228(8)(a) and (c) as to the meaning of this term. It focused on the character of the service that had been provided by the representative in Australia and his activities rather than the nature of the services in PRC which are the subject of any negotiations that may culminate in agreements.
Respondent’s submissions
The respondent submitted that although being unsure of the precise nature and relevance of the submission in this regard, that in any event the contention itself must rely upon the court accepting the broader definition of suppliers advanced in support of the first ground. Accordingly, if the court were to be against the applicant in relation to the issues raised in the first ground, which is the case, then this ground should likewise fail.
Reasoning
In my view, there is no error demonstrated in this ground as advanced for and on behalf of the applicant. I do not see any error of the kind identified in the suggestion that the MRT has conflated the issue of services provided outside Australia with the issue of activities of the applicant and services to be provided within Australia. It is clear to me that the MRT has properly considered its task and, moreover, has applied appropriately the meaning of supplier and done so in relation to the organisation the applicant purports to represent. I see no error of a kind which would support this ground and, accordingly, it should fail.
Placing a gloss on terms of the criterion - subclause 8(a) and (b)
Applicant’s submissions
The applicant submits that the MRT fell into error in another way which probably contributed to its failure in the other respects previously relied upon. It did so by citing PAM3 at court book 339‑340 as requiring from the representative "evidence that the supplier or overseas business is actively involved in business". It was claimed that the MRT wrongly held that the evidence that the local government authority was not a business and not engaged in making profits supported the view that it was not a supplier of education. That reasoning, it was claimed, demonstrates the presence of a gloss which is simply not present in the criterion of the grant of the visa, or the MRT having taken into account supererogatory considerations in answering the question whether Harbin was a supplier of the identified services, namely, education, and to that extent the PAMs do not accurately state, it was argued, the effect of the criterion and should not be followed.
Respondent’s submissions
The respondent submitted that the MRT properly based its decision and findings on the finding that Leader Office Harbin Association of Students Moral and Education was not a proposed "supplier" of services. Further, it was submitted that the MRT correctly applied PAM3 guidelines to the applicant's case. There was no inconsistency between PAM3 and the Act or PAM3 and the regulations. It was argued that in any event a "provider of services" implies a reference to a person or entity currently involved in the direct provision of services.
Reasoning
In my view, the respondent's submissions in relation to this ground are correct. I do not see any inconsistency between PAM guidelines and the Act and regulations. In any event, I am satisfied that it was appropriate for the MRT in the circumstances to consider the evidence before it and reach a conclusion in relation to Leader Office Harbin Association of Students Moral and Education not being a proposed "supplier of services". It seems to me that a provider of services does imply a reference to a person or entity currently involved in the direct provision of services. Accordingly, this ground should fail.
Asking the wrong question – subclause 8(b)
Applicant’s submissions
It was finally submitted by counsel for the applicant that despite the MRT's acknowledgment that it had to consider proposed or future representation, not the applicant's past or present representation in its treatment of subclause (b), that this is precisely what it proceeded to do. It was argued it committed the same error as the earlier MRT which had been the subject of the successful appeal. It has relied exclusively on evidence of past performance while ignoring completely the strongest indicator of future intent, the significant provision for interpreters in the budget of the representative office to make up for the applicant's perceived deficiencies in the English language. Its focus on the supposed lack of knowledge about the Australian education system ignored the crucial fact that he was representing the local Chinese education authority as a supplier of services.
Respondent’s submissions
The respondent submitted that this ground cannot be made out as in several places throughout the decision the MRT makes explicit reference to the applicant's future plans. Further, it is submitted that the decision essentially is based on the failure of the proposed activities to conform to the requirements of regulation 457.228(a) due to the fact that the applicant's principal was not going to provide the proposed services.
Reasoning
In my view, there is no doubt on a proper reference to the MRT's reasoning that it has indeed made specific reference to the applicant's future plans. In any event, it is clear to me that in the exercise of its fact‑finding process, the essential finding of facts reasonably open to the MRT was a finding that the applicant's principal was not going to provide the proposed services. That finding, as indicated, was reasonably open to the MRT and, in my view, it has not misconceived its task or fallen into error of a kind similar to the error identified arising out of the first MRT decision. Accordingly, this ground should fail.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 13 May 2005
0