YU v Minister for Immigration
[2019] FCCA 2690
•27 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2690 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision made by a primary decision-maker not to grant the applicants a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa (Business visa) – whether a particular criterion had to be satisfied at the time Tribunal decided to affirm decision or at the time the primary decision-maker decided not to grant the Business visa – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 Migration Regulations 1994 (Cth), Schedule 2, cll.890.21, 890.22, 890.211, 890.221 |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 |
| First Applicant: | DAI YU |
| Second Applicant: | XINYUE YU |
| Third Applicant: | QIANG BI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 419 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 September 2019 |
| Date of Last Submission: | 19 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2019 |
REPRESENTATION
| Counsel for the Applicants: | Dr A J Greinke |
| Solicitors for the Applicants: | Auyeung Hencent & Day Lawyers |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs set in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 419 of 2018
| DAI YU |
First Applicant
| XINYUE YU |
Second Applicant
| QIANG BI |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) raises two questions. The first is whether the second respondent (Tribunal), when reviewing the decision of a delegate not to grant the applicants a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa (Business visa), incorrectly proceeded on the basis that a particular criterion for the granting of the Business visa had to be satisfied on the day it made the decision, rather than on the day the delegate made his decision. The second question is whether, as the applicants contend, the criterion in question ought to have been satisfied on the day on which the delegate made his decision, not on the day on which the Tribunal made its decision.
Background
The applicants are nationals of the People’s Republic of China. On 22 October 2014 they applied for a Business visa. The first applicant (applicant) was the primary applicant.
One of the criteria the applicants had to satisfy was that prescribed by cl.890.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That subclause, which appears under the heading “890.21 - Criteria to be satisfied at time of application”, is as follows:
The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main business in Australia for at least 2 years immediately before the application is made.
Particularly relevant to the questions that arise in this proceeding are cl.890.22 and cl.890.221 of Schedule 2 to the Regulations:
890.22--Criteria to be satisfied at time of decision
890.221
The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.
The expression “main business” is defined in reg.1.11(1) of the Regulations:
(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a) the applicant has, or has had, an ownership interest in the business; and
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:
(i) if the business is operated by a publicly listed company—at least 10% of the total value of the business; or
(ii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or
(iii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is less than AUD400 000;
at least 51% of the total value of the business; and
(d) the business is a qualifying business.
The applicant attempted to meet the requirements of cl.890.211 and cl.890.221 by claiming she had an ownership interest in two businesses. One was New Australia Agricultural Development Company Pty Ltd (NAADCO), and the other is Elbelle’s Early Learning Centre Pty Ltd (Elbelle). The applicant was unable to satisfy cl.890.211(1) in relation to Elbelle because she did not continue to have an ownership interest in that company for at least two years before she applied for the Business visa. As for NAADCO, although the applicant showed she had an ownership interest in that company for at least two years before she applied for the Business visa, the applicant did not satisfy the delegate she maintained, or has maintained, direct and continuous involvement in the management of NAADCO’s business. The delegate, therefore, on 28 October 2015, refused to grant the applicant the Business visa.
Before the Tribunal
On 6 November 2015 the applicants applied to the Tribunal for review of the delegate’s decision. By letter dated 30 August 2017 to the applicants’ agent,[1] the Tribunal informed the applicants that it obtained information that indicated the applicant had ceased to be a shareholder of NAADCO. The Tribunal said this information was relevant because cl.890.221 of Schedule 2 to the Regulations “requires that you continue to satisfy the criteria in cl.890.211”, and that that clause “requires that you have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made”.
[1] CB1208
The applicants responded through their agent’s letter dated 27 September 2017.[2] The agent said the applicant disposed of her “ownership interest” in NAADCO in August 2016, and that she had disposed of her “ownership interest” in Elbelle in August 2017. The agent further stated that the applicant endeavoured to maintain her ownership interest in these businesses, but a downturn in business, and the departure of crucial staff from Elbelle, meant the applicant “had no choice but to dispose of her ownership interest in these businesses”.
[2] CB1216
At the hearing before the Tribunal, the applicants’ representative submitted that the requirement prescribed by cl.890.221 of Schedule 2 to the Regulations only needed to be satisfied “up to the point of application”, that historically what is now known as the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs had applied the criterion flexibly by allowing applicants to switch between businesses; there are circumstances where a downturn occurs or there is economic hardship, and an applicant may exit the business; that, in those circumstances, an applicant would be deprived of meeting the requirements despite having held an ownership interest for 2 years; and that it would be unreasonable or unfair to applicants because it would require them to have a shareholding for more than 2 years. The agent further submitted there was an inconsistency between cl.890.211 and cl.890.221.[3]
[3] CB1260-1261, [20]
The Tribunal disagreed with the applicants’ agent’s submission that the relevant date for assessing the satisfaction of cl.890.211 is that of the primary decision. The Tribunal said s.349 of the Act provides that the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision; and that, when reviewing a decision, the Tribunal conducts a “de-novo re-exercise of the primary decision-making power”.[4] The Tribunal quoted a passage from the judgment of Bryant CFM (as her Honour then was) in Shaikh v Minister for Immigration that “the time of decision is an ambulatory concept depending on the person (or Tribunal) exercising the power at the time of decision”,[5] and concluded:[6]
The Tribunal considers it well established that when reviewing a decision to refuse to grant a visa, it is the time of the Tribunal’s decision, and not the delegate’s, at which the Tribunal must assess whether the applicant satisfied the criteria for the grant of the visa.
[4] CB1261, [25]. The quote is taken from the judgment of Poudyal v MIMIA [2005] FMCA 265 at [40]
[5] [2004] FMCA 116, at [26]
[6] CB1261, [25]
The Tribunal also considered the grounds on which the delegate refused to grant the Business visa and, after noting the applicant had provided additional evidence, concluded the evidence before it indicated that at the time of application NAADCO met the definition of main business in cl.890.211.[7] The Tribunal concluded as follows:[8]
The applicant however has now disposed of her shareholding in NAADCO. As the applicant does not continue to have an ownership interest in business relied on to meet the requirements of cl.890.211, the Tribunal finds that the applicant dos not continue to satisfy cl.890.211 and is therefore unable to meet cl.890.221 at the time of this decision.
[7] CB1262, [30]
[8] CB1262, [31]
Grounds of application and parties’ submissions
The application contains the following grounds of application:
1.The Tribunal erred in finding that the ‘time of decision’ for the purposes of Regulation 890.22 of the Migration Regulations 1994 was the time of the decision of the Tribunal, and ought to have found that the ‘time of decision’, on the proper interpretation of the regulations, was the time of the original decision to grant or refuse a visa.
2.The Tribunal erred in the construction of Regulations 890.211, 890.22 and 890.221, and failed to apply the principles of Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.
3.The Tribunal erred by taking into consideration an irrelevant matter, namely the applicant’s disposal of her shareholding subsequent to the original decision.
4.Accordingly, the Tribunal fell into jurisdictional error.
In their written submissions the applicants submit the Tribunal interpreted the judgments in Shi v Migration Agents Registration Authority as compelling the Tribunal to require the statutory criteria to be met at the time of the decision. The applicants submit this was inconsistent with the following passage from the judgment of Kiefel J (as her Honour then was):[9]
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
[9] [2008] HCA 31; (2008) 235 CLR 286, at [142]-[143] (references omitted)
The applicants submit that Shi is authority for the principle that the time at which a particular decision-maker must be satisfied a particular matter exists turns on the particular decision, and its statutory context; and the Tribunal did not apply this approach because it assumed, on the basis of Shi, that it was required to be satisfied of cl.890.211 and cl.890.221 of Schedule 2 to the Regulations at the time it made its decision.
The applicants further submit that, having regard to the decision the Tribunal was required to make when reviewing the delegate’s decision, and the statutory context in which it was made, the Tribunal was required to be satisfied that the applicant satisfied cl.890.211 and cl.890.221, not when it made the decision on review, but at the time the delegate made his decision. The applicants rely on the following:
a)First, cl.890.211 requires the applicant have an ownership interest for at least two years immediately before the application is made. This indicates a legislative intention that the owner meet this “hurdle” for two years, not for an indefinite period extending through reviews and appeals into the future.[10]
b)Second, the heading to cl.890.221 of Schedule 2 to the Regulations states: “Criteria to be satisfied at time of decision”.[11] It is unclear what significance the applicants intend to attach to the heading, because, in relation to the heading, the applicants’ written submissions refer to the two-year requirement prescribed by cl.890.211. The applicants submit that to treat “time of decision” as the time at which the Tribunal decides an application for review “would in effect create an ongoing requirement, in excess of that fixed by the Parliament, to maintain ownership of a business for months or years beyond the criteria in in clause 890.211, and that if that ownership was interrupted for any reason during the review process, an applicant’s visa rights would be at risk of forfeiture”.[12]
c)Third, the facts of the applicants’ case are distinguishable from those in Shi. The decision that was considered in Shi was not “time-limited”; it related to a person’s character.[13]
d)Fourth, had the delegate not made the original factual error, the criteria would have been satisfied and the Business visa granted.[14]
[10] Applicant’s Outline of Submissions, [14]
[11] Applicant’s Outline of Submissions, [15]
[12] Applicant’s Outline of Submissions, [18]
[13] Applicant’s Outline of Submissions, [21]
[14] Applicant’s Outline of Submissions, [22]
The Minister, on the other hand, in his written submissions, referred to cases that, although not directed to the same issue raised by the applicants in this case, the Minister submits are inconsistent with the construction for which the applicants contend. For reasons that will become apparent, the determination of the applicants’ claims does not turn on the application of the cases on which the Minister relies.
In light of the grounds stated in the application, and the submissions the parties have made, two issues arise. The first is whether the Tribunal failed to apply Shi. The second is whether, on the proper construction of cl.890.22 and cl.890.221, the Tribunal was required to be satisfied that the criterion provided for by cl.890.211 was only required to be satisfied on the day the delegate decided not to grant the applicants the Business visa. It would be convenient first to consider the second of these issues. Before I do that, it will be necessary to set out some of the primary principles of construction.
Some principles of construction
The text that is to be construed forms part of delegated legislation. The “general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation”.[15] To “use the words of Dixon J, “subordinate or delegated legislation … [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction””.[16]
[15] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ
[16] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. This quoted passage is taken from the judgment of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195
The purpose of statutory construction is to ascertain the intention of Parliament or the person or body promulgating the relevant piece of delegated legislation. That intention, however, is to be ascertained from the words Parliament or the person or body has chosen to express its or his or her intention, in the context of the Act or delegated legislation in which the words appear. The basic task of statutory construction, therefore, is to ascertain the meaning of the text that is to be construed, in the context of the Act or delegated legislation in which it appears. These principles were reiterated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[17]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[17] (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Keifel JJ), cases referred to omitted.
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority:[18]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[18] (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ).
One consequence of having to begin the task of statutory construction by considering the text itself is that, if that consideration yields a meaning that is not doubtful, “there is no occasion to look to the extrinsic material”.[19] That, in turn, means “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.[20]
[19] Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 550 per Brennan and Gaudron JJ.
[20] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 ([33]) (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Heydon J noted (at 277 ([74]) that “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation.”
It is permissible when construing legislative text to take into account the consequences of construing the text in a particular way. In Ganter v Whalland, Campbell J (as his Honour then was) said:[21]
A legitimate check for a court to use, in deciding whether an interpretation of a statute arrived at by grammatical analysis is indeed the correct interpretation, is to consider whether that interpretation produces practical results which are sensible, rather than: “‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’” (Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (Cth) (1981) 147 CLR 297 at 321, per Mason J and Wilson J).
Jordan CJ expressed the same notion by saying “a Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense” (Hall v Jones (1942) 42 SR (NSW) 203 at 208 . . . .
[21] (2001) 54 NSWLR 122 at 131 ([35], [36])
As Campbell J further said, however:[22]
From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.
[22] (2001) 54 NSWLR 122 at 131 ([36])
The need for caution in relying on consequences to reject a particular interpretation of a statutory provision was emphasised by the Full Federal Court in Connect East Management Ltd v Commissioner of Taxation:[23]
Resort to the odd or anomalous consequences of a particular construction of legislation is to be approached with caution. In Esso Australian Resources Ltd v FCT (1998) 83 FCR 511 at 518–519, speaking of ss 118 and 119 of the Evidence Act 1995 (Cth), Black CJ and Sundberg J said:
In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that Parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament.
In Ganter v Whalland [2001] NSWSC 1101 at [36], in connection with the caution just referred to, Campbell J highlighted the risk of the court “taking over the function of making policy choices which properly belongs to the legislature”. See also Pearce and Geddes, Statutory Interpretation in Australia (6th ed, Butterworths, 2006) at [2.36].
[23] [2009] FCAFC 22 at [41] (Sundberg, Jessup and Middleton JJ)
It is permissible to read words into a statutory text. That can be done, however, only in certain circumstances. The circumstances in which this may be done were considered by the plurality in Taylor v The Owners - Strata Plan No 11564:[24]
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
[24] [2014] HCA 9, at [38]
The plurality[25] referred to the three conditions identified by Lord Diplock in Wentworth Securities Ltd v Jones,[26] as reformulated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution (a firm),[27] that must be satisfied before words will be read into a statutory provision. The preconditions identified by Lord Nicholls are as follows:
So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation . . .
[25] [2014] HCA 9, at [39]
[26] [1980] AC 74, at page 105
[27] [2000] UKHL 15; [2000] 1 WLR 586, at page 592
The plurality in Taylor said it was unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient.[28] Nevertheless, the plurality noted that Lord Diplock “laid emphasis on the task as construction and not judicial legislation”, that Lord Nicholls in Inco Europe observed that “even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament”, and that in “Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution”.[29]
[28] [2014] HCA 9, at [39]
[29] [2014] HCA 9, at [40]
Construction of “Criteria to be satisfied at time of decision”
The first matter to note is that cl.890.22 of Schedule 2 to the Regulations is not a heading. It is intended to have effect. It is directed to the subclauses that appear below it. It requires that the matters appearing in those subclauses be satisfied “at time of decision”.
The second matter to note is that time is defined by reference to a “decision”. Subclause 890.22 does not, however, describe the nature of the decision, or identify the decision-maker or decision-makers. The nature of the decision, and the identity of the decision-maker or decision-makers must be inferred from provisions contained elsewhere in the Act and Regulations.
First, I turn to the nature of the “decision” to which cl.890.22 refers. “Decision” appears throughout Schedule 2 to the Regulations, which is headed “Provisions with respect to the grant of Subclasses of visas”. By the operation of reg.2.03(1) of the Regulations, Schedule 2 contains the “prescribed criteria for the grant to a person of a visa of a particular class”. Those criteria are relevant because they have been prescribed under the authority of s.31(3) of the Act, which provides that the regulations “may prescribe criteria for a visa or visas of a specified class”. That, in turn, is made relevant by s.31(1) of the Act, which provides that “[t]here are to be prescribed classes of visas”. That, in further turn, is relevant because of s.47 and s.65 of the Act. Subsection 47(1) of the Act provides that the Minister “is to consider a valid application for a visa”; and s.65(1) provides that if, after considering a valid application for a visa, the Minister is satisfied, among other things, that the “criteria for it prescribed by this Act or the regulations have been satisfied”, the Minister is to grant the visa, and if not so satisfied, is to refuse to grant the visa. Thus “decision”, as it appears in cl.890.22 of Schedule 2 to the Regulations, refers to a decision to grant or not to grant the Business visa, being the class of visa in relation to the granting of which cl.890.221 of Schedule 2 to the Regulations is a criterion.
Second, there is the identity of the decision-maker. Subsection 65(1) of the Act identifies the Minister as the person who is required to make the decision to grant or not to grant a visa. The Minister, however, is not the only person who may make such decision. Under s.496 of the Act the Minister may delegate to any person any of the Minister’s powers under the Act. Those powers include the power to grant or not to grant a visa conferred by s.65(1) of the Act.
There is another person who is authorised to make a decision to grant or not to grant a visa; and that is the Tribunal. The decisions the Tribunal may make, and the circumstances in which it may make those decisions, at least in relation to applications for the grant of a Business visa, are to be inferred from the following provisions:
a)subsection 338(2) of the Act, which provides that a decision to refuse to grant a non-citizen a visa in the circumstances provided in that subsection is a “Part-5 reviewable decision”;
b)subsection 347(1) of the Act, which provides, in the circumstances there stated, for the making of an application to the Tribunal for review of a Part-5 reviewable decision;
c)subsection 348(1) of the Act, which provides that, if an application is properly made under s.347 of the Act for a review of a Part-5 reviewable decision, the Tribunal “must review the decision”;
d)subsection 349(1) of the Act, which provides that the Tribunal may, for the purposes of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision; and
e)subsection 349(2) of the Act, which sets out the decisions the Tribunal may make in relation to the Part-5 reviewable decision it reviews, those decision including affirming the decision, varying the decision, and setting the decision aside and substituting a new decision.
From these provisions it will be seen that “decision”, as it appears in cl.890.22 of Schedule 2 to the Regulations, also includes any one of the decisions that the Tribunal may make under s.349(2) of the Act where a valid application for review of a decision refusing the grant of a Business visa has been made to it. When read with s.349(1) of the Act, the decisions s.349(2) authorises the Tribunal to make are in substance the same as the decisions s.65 of the Act authorises the Minister to make. The power to affirm the decision under review is in substance the same as the power conferred by s.65 of the Act not to grant the visa in question; and the power to set aside and substitute a new decision is in substance the same as the power to grant a visa.
Thus “decision”, as it appears in cl.890.22 of Schedule 2 to the Regulations, means either:
a)a decision made by the Minister or by a delegate of the Minister under s.65(1) of the Act to grant or to refuse to grant a Business visa; or,
b)where the Minister or a delegate has refused to grant a Business visa, and the unsuccessful applicant makes a valid application to the Tribunal for review of the delegate’s decision not to grant the Business visa, a decision by the Tribunal under s.349(2) of the Act.
The next matter to consider is the text of cl.890.22 of Schedule 2 to the Regulations in which “decision” appears, namely, “Criteria to be satisfied at time of”.
a)First, there is the object of the clause, “criteria”. By itself it has no meaning; it operates as a placeholder for the matters that appear in the subclauses that appear under cl.890.22. Its purpose is to refer to these matters and apply to them the requirement that they be satisfied at the time of decision.
b)Second, there is the expression “to be satisfied”. It does not identify the person who must be satisfied; but given the identity of the decision-makers “decision” denotes – the Minister, a delegate of the Minister, or the Tribunal – the person who must be satisfied is the Minister, or a delegate of the Minister, or the Tribunal.
c)Third, there is the expression “at time of decision”. That identifies the time at which the decision-maker must be satisfied of the matters referred to in the subclauses that appear under cl.890.22. Given that “decision” denotes decisions made by the Minister or a delegate, and decisions made by the Tribunal on review of a decision made by the Minister or by a delegate refusing to grant a Business visa, the time at which the matters referred to in the subclauses that appear under cl.890.22 must be satisfied will depend on the identity of the decision-maker. More specifically, the time at which a Tribunal makes a decision will necessarily be later than the time at which the Minister or delegate makes his or her decision.
Finally, it is necessary to consider the relevant matters of which the decision-maker must be satisfied at the time of decision, namely, the “applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216”. Relevant here is the criterion specified in cl.890.211 – the “applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made”. Although perhaps awkwardly expressed, the effect of this subclause is clear. It requires that the applicant has had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the applicant applied for the Business visa and after the applicant applied for a Business visa the applicant continues to have an ownership interest in at least one such business.
The effect of the text of cl.890.22 of Schedule 2 to the Regulations, as it applies to the criterion provided by cl.890.221 as it, in turn, applies to cl.890.211, may now be stated.
a)Where the decision-maker is the Minister or a delegate of the Minister, the Minister or delegate must be satisfied at the time he or she makes the decision under s.65(1) of the Act to grant or not to grant a Business visa that the applicant has had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the applicant applied for the Business visa, and after the applicant applied for a Business visa the applicant continues to have an ownership interest in at least one such business.
b)Where the decision-maker is the Tribunal, the Tribunal must be satisfied at the time it makes a decision under s.349(2) of the Act when, under s.349(1) of the Act, it exercises the power of the Minister or delegate of the Minister under s.65(1) of the Act to grant or not to grant a Business visa, that the applicant has had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the applicant applied for the Business visa, and after the applicant applied for a Business visa the applicant continues to have an ownership interest in at least one such business.
I now turn to the construction for which the applicants contend. The applicants’ construction requires that the expression “at the time of decision” be construed as reading “at the time of decision of the primary decision maker” or at the “at the time of decision of the Minister or delegate”. Three observations may be made. First, the applicants’ construction consists of the addition of words to the text of cl.890.22. Second, it cannot be said that the addition of the words serves to illuminate, illustrate, or explain the text of cl.890.22. The additional words alter the plain meaning of the text. If added to the text, cl.980.22 would require the Tribunal consider whether cl.890.221 is satisfied, not at the time the Tribunal makes the decision, but at the time some other person – the Minister or the delegate – has made a decision. Third, the applicants have not attempted to justify the addition of these words by reference to the principles considered by the plurality in Taylor to which I have referred. The applicants have instead relied on two other related submissions.
The first is that cl.890.211 manifests an intention that an applicant need only satisfy the ownership requirement for the fixed two years provided for by that clause, rather than for an indefinite period that ends with the time at which a decision is made. That submission cannot be accepted, because it ignores the presence and text of cl.890.221, which requires that the ownership interest continue beyond the two years required by cl.890.211.
The second submission appeals to the consequence of construing cl.890.221 as requiring the Tribunal to be satisfied of the ownership interest continuing to exist up to the time of its decision. That consequence is that it would require an applicant to satisfy the ownership criterion for potentially well in excess of the two-year period provided for by cl.890.211, thus exposing an applicant to the vagaries of changing economic conditions and other matters of chance that, through no fault of the applicant, could deprive him or her of the required ownership interest. There are two answers to this submission.
a)First, on a plain reading of the text of cl.890.22 and cl.890.221, that is a risk that arises from the criteria; the text manifests a policy choice of the drafter of the Regulations. It would be beyond the proper bounds of statutory construction to alter the plain meaning of the text to reflect a policy choice different from that manifested by the text of cl.890.22 and cl.890.221.
b)Second, the construction for which the applicants contend does not remove the consequences of construing cl.890.221 as requiring the Tribunal to be satisfied of the ownership interest having continued to exist up to the time of its decision. The construction for which the applicants contend is that the Tribunal be satisfied the ownership interest be satisfied up to the time the primary decision-maker makes his or her decision. But that decision may also be made well in excess of the two-year period provided for by cl.890.211. That possibility is illustrated in the case before me. The applicant applied for a Business visa in October 2014, but the delegate made the decision not to grant the Business visa in October 2015, some 12 months later. It is true the Tribunal did not make its decision until a further two or so years had passed. But that does not mean in all cases it would take the Tribunal more than two years to review a decision; and it is conceivable that in a given case the Minister or his or her delegate could take longer than 12 months. The only way the drafter of the Regulations could have avoided the consequences of exposing an applicant to the risk of losing an ownership interest he or she had held for at least two years before applying for a Business visa would have been by not requiring that the applicant satisfy an ongoing ownership interest by reference to a time defined by when a decision on an application for the grant of a Business visa is to be made, or by reference to a time defined by when the Tribunal is to make a decision on a review of a decision not to grant an applicant a Business visa. That cl.890.22 and cl.890.221 were not drafted in this way indicates that the person who drafted the clauses intended that an applicant for a Business visa would be exposed to the risk of losing an ownership interest during the period it would take for the Minister or his or her delegate to decide whether to grant the Business visa, or during the period it would take the Tribunal to decide an application for review of a decision not to grant the applicant a Business visa.
It follows, therefore, that, on the proper construction of cl.890.22 and cl.890.221 of Schedule 2 to the Regulations, the applicant was required to satisfy the Tribunal that, at the time the Tribunal made its decision on the review, she continued to maintain an ownership interest in NAADCO. Given the applicant could not satisfy that matter, the Tribunal made no jurisdictional error by affirming the delegate’s decision not to grant the applicant the Business visa for that reason.
Did the Tribunal fail to apply Shi?
The manner in which the applicant submits the Tribunal failed to apply Shi is that the Tribunal did not acknowledge, as it ought to have, had it correctly understood Shi, that whether a criterion had to be satisfied at the date of decision or at some other time turned on the particular decision, and its statutory context. The applicants submit that the Tribunal’s error is made apparent in the following passage from its reasons for decision:[30]
The Tribunal considers it well established that when reviewing a decision to refuse to grant a visa, it is the time of the Tribunal’s decision, and not the delegate’s, at which the Tribunal must assess whether the applicant satisfied the criteria for the grant of the visa.
[30] CB1261, [25] (references omitted)
I do not accept the applicants’ submission. In this passage the Tribunal was addressing a particular submission the applicants’ representative had made, namely, that the date for assessing the ownership interest was the date on which the delegate refused to grant the Business visa. On a reading attuned to finding error, it is possible to interpret the Tribunal as proceeding on the assumption that, on a review of a delegate’s decision refusing to grant a visa, all criteria relevant to the grant of the visa must be satisfied at the time of the Tribunal’s decision. This part of the Tribunal’s reasons, however, ought not to be read in this way; the Tribunal was dealing with a particular submission addressed to particular criteria; and, for reasons I have given, the plain meaning of the text of cl.890.22 is that the criterion provided by cl.890.221 had to be satisfied at the time the Tribunal made its decision.
In any event, even if Tribunal could be said to have relied on the assumption that, on a review of a delegate’s decision refusing to grant a visa, all criteria relevant to the grant of the visa must be satisfied at the time of the Tribunal’s decision, that cannot have led the Tribunal to have made any jurisdictional error. In the circumstances of this case, for reasons I have given, the time at which the criterion provided for by cl.890.221 had to be satisfied was at the time the Tribunal made its decision.
Conclusions and disposition
The applicants have not succeeded on any of their grounds. I propose, therefore, to order that the application be dismissed.
Counsel for both parties agreed that costs should follow the event, and that the costs should reflect the relevant amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as that schedule applied at the time the applicants filed their application with this Court. That amount is $7,328. I also propose, therefore, to order that the applicants pay the Minister’s costs set in the amount of $7,328.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 27 September 2019
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