FEDERAL COURT OF AUSTRALIA Abeywardane v Minister for Immigration & Multicultural Affairs [2002] FCA 255 MIGRATION – long stay temporary business entry visa – collateral application by proposed employer for business sponsor visa – refusal by delegate – review by tribunal – application for review by court – tribunal deciding business entry visa before application for business sponsor visa – whether failure to observe procedures – whether error of law in application Evidence Act 1995 (Cth) ss 84(1) and (2), 135(a) and (b), 136(a) and (b), 138(1), (2)(a) and (b) Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(b), 476(1)(e) Migration Regulations reg 1.20D Smith v NSW Bar Association (1992) 176 CLR 256 followed Londish v Golf Pacific Pty Ltd (1993) 45 FCR 128 followed Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353 cited Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited SUZANNE BEVERLEY ABEYWARDANE and MOHAN LUXSMAN ALBERT ABEYWARDANE and SURESH LUXMAN ABEYWARDANE and KRISTINA ANNE MARIE ABEYWARDANE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 81 of 2001 RD NICHOLSON J 15 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 81 of 2001 BETWEEN: SUZANNE BEVERLEY ABEYWARDANE MOHAN LUXSMAN ALBERT ABEYWARDANE SURESH LUXMAN ABEYWARDANE KRISTINA ANNE MARIE ABEYWARDANE APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 15 MARCH 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicants' motion dated 23 January 2002 be refused. 2. The application for review be dismissed. 3. The applicants pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 81 of 2001 BETWEEN: SUZANNE BEVERLEY ABEYWARDANE MOHAN LUXSMAN ALBERT ABEYWARDANE SURESH LUXMAN ABEYWARDANE KRISTINA ANNE MARIE ABEYWARDANE APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 15 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicants apply for an order of review in respect of the decision of a Migration Review Tribunal ("the Tribunal") given on 2 March 2001. In that decision the Tribunal affirmed the decision under review that the applicant, as a visa applicant, is not entitled to the grant of a Temporary Business Entry (Class UC) visa. This application is brought in reliance upon s 476 of the Migration Act 1958 (Cth) ("the Act"). Background circumstances 2 The firstnamed applicant (who will for convenience be referred to as 'the applicant') was born on 6 March 1962 in Colombo, Sri Lanka. 3 The applicant's visa history was described by the Tribunal at par [8] and [9] as follows: "…the visa applicant first entered Australia on a visitor visa on 3 December 1995 and departed 3 March 1996. She re-entered as a visitor on 24 July 1996 and was granted a Sri Lankan (Temporary) 435 visa on 29 July 1996. Following approval as the nominee of a nomination by a business sponsor the visa applicant was granted a Temporary Business Entry 457 visa on 2 September 1997. She was absent from Australia between 2 July and 10 August 1998 and since 17 August 1999 has held a bridging visa granted on the basis of the application for a visa which is subject of this review. On 17 August 1999 the visa applicant lodged an application for a Long Stay Temporary Business (Class UC) visa (Form 1066) and named Governor Curry House as the proposed employer and business sponsor." 4 The form was completed in respect of the applicant, her husband and two children (the other named applicants). 5 In the notes accompanying the form under the heading "How to apply" it was stated as follows: "Step 1 If your sponsor's nomination has been approved, your sponsor will provide you with a copy of the nomination approval letter and other documents needed to assist in deciding your application. It is essential that you attach all these documents to your visa application." It is to be observed that this advice does not state what the position would be if the sponsor's nomination has not been approved so that there are no documents available for such attachment. 6 It is not in dispute that the applicant's nominated business sponsor was Governor's Curry House, a business carried on by Lace Holdings Pty Ltd ("Lace Holdings"). The applicant ticked on the form to signify that she was attaching a copy of the nomination approval letter and other documents provided by her sponsor. 7 By letter dated 24 August 1999, the applicant was advised by the Department of Immigration and Multicultural Affairs ("the Department") that a decision had been made by the respondent's delegate to refuse the application. 8 On 23 August 1999 Lace Holdings lodged an application for business sponsorship (form 1067) accompanied with a nomination of the applicant (form 1068) for the position of an Indian cook. On 24 August 1999 the same delegate of the Minister refused the sponsorship for temporary business entry and also rejected the application for approval as a standard business sponsor and an application for renewal of approval as a pre-qualified business sponsor. 9 There were three grounds for the decision of the delegate in each case. The first was that Lace Holdings was unable to satisfy the requirement under reg 1.20D(2)(c)(ii) of the Migration Regulations that the applicant has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia. Secondly, the delegate was not satisfied that nothing adverse is known to the Department about the business background of Lace Holdings so that Lace Holdings was unable to satisfy the requirement under reg 1.20D(2)(d). Thirdly, the delegate found it clearly evident that Lace Holdings was not complying with the previous conditions of its sponsorship so that it was unable to satisfy the requirement under reg 1.20D(2)(f) that it would comply with the undertakings given by the applicant in accordance with form 1067. 10 Accordingly, the delegate found in the case of the applicant that regs 457.223(4) and 457.223(5) in subclass 457, which require the employer to be a business sponsor, were not met. Additionally, she found that the regulations in subpars (1), (2), (3), (6), (7), (8) and (9) of reg 457.223 in subclass 457 could not be satisfied. Since all the prescribed criteria were required to be satisfied before a visa could be granted, the delegate decided that the temporary business entry visa could not be granted. 11 The applicant appealed to the Tribunal in respect of the delegate's decision. Tribunal's reasons and findings 12 After referring to the application for review, the Tribunal's jurisdiction and the relevant legislation and policy, the Tribunal referred to the applicant having given sworn evidence to the Tribunal at the hearing of the matter. It also referred to the evidence of Mrs Che on behalf of the Governor Curry House in the associated application for the business sponsor visa. 13 In relation to the applicant, the Tribunal stated: "At the hearing the visa applicant indicated that she has worked for the proposed sponsor since 1996. She told the Tribunal that although she has no formal training as a cook and that 'catering and cooking runs in the family'. She maintains there is work for her at the business of the proposed employer as a specialist cook. She wished to continue to work and live in Australia." The Tribunal then said in par 13: "13. Although not directly relevant to the decision the Tribunal is required to review, the Tribunal nevertheless considers it appropriate to record at this point that a DIMA officer provided additional information to the Tribunal relating to the visa applicant. The information referred to is an investigation report that alleges that the visa applicant has willingly made a false declaration in regard to her occupation." 14 The Tribunal then referred to reg 457.223 and said that it had the effect that a visa applicant must meet at least one of the subclauses listed in (2) to (9) of subcl 1 of that regulation. It found that the visa applicant was not able to do so. 15 In relation to the application on the basis of sponsorship by an Australian business, it said that one necessary criterion was that the proposed employer is "a pre-qualified business sponsor or a standard business sponsor": reg 457.223(4) and reg 457.223(5). In relation to this the Tribunal said: "At the time of application the visa applicant's employer was not an approved business sponsor as the employer was unable to meet the requirements of clause 1.20D(2) of the Regulations. At the time of this review the Tribunal finds that the visa applicant has no approved business sponsor. Therefore the visa applicant is ineligible for the visa she is seeking to have granted." 16 By extension, it concluded her family also did not satisfy the criteria. For that reason the Tribunal affirmed the decision of the delegate under review in relation to the applicant. Evidence 17 Following conclusion of the hearing of the application before this Court a motion was brought on behalf of the applicant seeking leave to tender the transcript of the hearing in the Tribunal. The motion is opposed on behalf of the respondent. For the respondent it is submitted that there was no tender of the transcript at the hearing or at its conclusion and that judgment was reserved and no explanation has been offered as to why the transcript was not then tendered. I accept the submission for the respondent that the facts as they fell out on the date of the hearing are indicative that a deliberate decision was taken by the applicant's legal representatives not to rely on the transcript in presenting the applicant's case: Smith v NSW Bar Association (1992) 176 CLR 256 at 266 – 267 and Londish v Golf Pacific Pty Ltd (1993) 45 FCR 128 at 139. Those considerations may be determinative. 18 In supplementary submissions brought in support of the motion the reasons why the applicant seeks to admit the further evidence is made apparent. Firstly, it is said that the evidence will support the ground of appeal relating to failure to observe procedures in not deciding the business sponsor application prior to the application for the visa by the applicant. Resort is sought to the transcript to show that during the hearing the Tribunal was of the view that the sponsorship application would be an obvious first priority for decision. I agree with the submission for the respondent that whether there was a failure to observe procedure cannot turn on statements made by the Tribunal about the matter during the hearing. Rather, the determination of the ground will turn on the procedural requirements of the Act and whether the Tribunal observed those requirements in timing its decision. 19 The second use sought to be made of the transcript is in relation to the ground of appeal concerning the investigation report and its potential contamination of the Tribunal's thinking. It is sought to show that the Tribunal's reasoning in par 13 of its reasons was not consistent with what the Tribunal member had said at the hearing in taking what might be described as a deferential approach to the issue. Again, I accept the submission for the respondent that a fair and objective reading of the Tribunal's reasons for decision reflect the position it took on the additional information which the officer had provided to the Tribunal and that it is of no apparent consequence to the decision which the Tribunal reached. Resort to the transcript would not, therefore, usefully add anything to the judicial review. 20 Additionally, of course, there is for consideration any possible prejudice to the respondent by the admission of the evidence. However, while that may be able to be addressed in appropriate ways it is clear to me that the above factors, including the absence of any reason supporting reopening evidence as necessary to the attainment of justice, is determinative that the motion should be refused. Grounds of review 21 The amended application relies on two grounds of review, namely failure to observe procedures – s 476(1)(a) of the Act – and error of law – s 476(1)(e). In the course of argument, counsel for the applicant also relied upon jurisdictional error arising pursuant to s 476(1)(e) or alternatively s 476(1)(b): Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. The particulars of the grounds are addressed below. Legislative and regulatory provisions 22 Section 29(1) of the Act provides, relevantly, that subject to the Act the Minister may grant a non-citizen permission, to be known as a visa, to remain in Australia. Section 30 provides for such visas to be permanent or temporary. Section 31 provides that there are to be prescribed classes of visas and authorises the regulations to prescribe criteria for a visa or visas of a specified class. 23 Regulation 2.01 in Pt 2 of the Migration Regulations provides that for the purposes of s 31 of the Act, the prescribed classes of visas are such classes (other than those created by the Act) as are set out in the respective items in sch 1 and the classes of transitional (permanent) and transitional (temporary). Regulation 2.03 provides that for the purposes of s 31(3) of the Act the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant Part of Schedule 2 or secondary criteria where those are provided. 24 Section 40 of the Act states that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. For the purposes of that section reg 2.04 provides that, subject to the regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2. Section 41 of the Act provides that the regulations may provide that visas or visas of a specified class are subject to specified conditions. For that purpose reg 2.05 provides that the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. 25 Item 1223A of sch 1 provides for a temporary business entry (class UC) visa. Where the applicant seeks a visa to remain in Australia for a period of more than three months the regulations specify the application shall be made on form 1066: sch 1, item 1223A(1)(b). The same item 1223A provides in par (4) for two subclasses, namely 456, business (short stay) and 457, business (long stay). 26 Schedule 2 of the regulations addresses the criteria for Subclass 457. Item 457.2 specifies primary criteria. Item 457.21 specifies criteria to be satisfied at the time of application. No issue relevantly arises in relation to those provisions or in relation to the secondary criteria set out in Item 457.3. The issue in the present case is whether the primary criteria to be satisfied at the time of decision and set out at 457.22 were satisfied at the time of the decision. More particularly, the issue is about the Tribunal's findings on whether the criteria at 457.223(4)(c) and 457.223(5)(c) of the Regulations were satisfied as the application was based on sponsorship by an Australian business. 27 Subclause 457.223 provides (at the relevant date) that among the criteria to be satisfied at the time of decision is: "(1) The applicant meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9)." 28 Of those subclauses the relevant ones at the time of the decision were those contained in (4) and (5) which read: "(4) The applicant meets the requirement of this subclause if: (a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is a key activity; and (b) that activity is the subject of an approved business nomination by the employer; and (c) the employer is: (i) a pre-qualified business sponsor; or (ii) a standard business sponsor; and (d) the applicant is nominated in relation to the activity by the employer; and (e) the applicant demonstrates (if so required by the Minister) that he or she has the skills necessary to perform the activity; and (f) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed. (5) The applicant meets the requirements of this subclause if: (a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is not a key activity; and (b) that activity is the subject of an approved business nomination by the employer; and (c) the employer is: (i) a pre-qualified business sponsor; or (ii) a standard business sponsor; and (d) the applicant is nominated in relation to the activity by the employer; and (e) where the application is made for a stay in Australia for more than 12 months, the applicant demonstrates that he or she has the skills necessary to perform the activity; and (ea) where the application is made for a stay in Australia for 12 months or less, the applicant demonstrates (if so required by the Minister) that he or she has the skills necessary to perform the activity; and (eb) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and (f) where the employer is a standard business sponsor, the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia." 29 With reference to the terminology utilised in subclause (4)(c)(i) and (5)(c)(i) a "pre-qualified business sponsor" has the same meaning as in Div 1.4A which is set out in cl 1.20B of the regulations. It means "a person approved as a pre-qualified business sponsor in accordance with reg 1.20D". Likewise, a "standard business sponsor" referred to in cl 457.223(4)(c)(ii) and (5)(c)(ii) is defined by cl 1.20B to mean a person approved as such in accordance with reg 1.20D. 30 Regulation 1.20D addresses approval of business sponsors, applications for approval as such being authorised by reg 1.20C. The text of these regulations is set out in the reasons in Lace Holdings Pty Ltd v Minister for Immigration & Multicultural Affairs delivered contemporaneously with these reasons. Failure to observe procedures: s 476(1)(a) 31 The application for the visa and the application for the approval as a business sponsor were each lodged with the Department on 17 August 1999. The delegate's decision in respect of each of the applications was made on 24 August 1999. On 17 September 1999 the applicant and Lace Holdings each lodged applications for review to the Tribunal. The Tribunal's decision in respect of the visa application was given on 2 March 2001. The Tribunal's decision in relation to the business sponsor application was given on 28 March 2001. 32 The contention for the applicant is that, it is the implication from the Migration Regulations, that necessarily, the application for business sponsorship must be decided before the application for visa approval. 33 The applicant contends the implication is supported by consideration of the object of Div 1.4A. This is set out in reg 1.20A and reads: "The object of this Division is to provide for: (a) applications for approval as a business sponsor; and (b) nominations by business sponsors of activities to be undertaken in Australia by prospective holders of Subclass 457 (Business (Long Stay)) visas; and (c) approval of those applications and nominations; and…" In reliance on reg 1.20A(b), read in conjunction with subclause 457.223 of Sch 2, it is submitted the status of the proposed employer is of significance because of the role that status plays in relation to applications for visas. Accordingly, the employer's status should be resolved before any visa application by prospective holders of Subclass 457 visas. The culmination of the submission is that failure to so act is a procedural failure supporting review. 34 I do not consider any such procedural requirement can be implied from reg 1.20A (and it is not expressly contained in the regulation). The regulation governs the making and granting of business sponsorship applications and nominations, not the review of a delegate's decision on a business (long stay) visa application. 35 As to the requirements in subclause 457.223, I accept the submission for the respondent that the Tribunal cannot make a decision that has the effect of ignoring the criteria to be satisfied before a business (long stay) visa can be granted to an applicant. The provisions are therefore substantive, not procedural. Furthermore, while not a determination of the business sponsor application, the Tribunal did refer in its reasons to the issue of whether, at the time of application, the applicant's employer was not an approved business sponsor because the employer was unable to meet the requirements of reg 1.20D(2). The Tribunal therefore neither failed to observe a procedural requirement nor failed to apply the requirements of subclause 457.223(4)(c) or 457.223(5)(c). Whether error of law: s 476(1)(e) Reference to "approved business sponsor" 36 The first way in which this ground is pressed is that the Tribunal held the proposed employer was not an "approved business sponsor" when that expression was unknown to the Migration Regulations so that the Tribunal fell into error of law. The error alleged is that the Tribunal thereby applied the wrong test because it did not consider whether the proposed employer was a "pre-qualified business sponsor" or a "standard business sponsor". Therefore, it is said the Tribunal failed to address the question which the regulation formulated: cf Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353 at 360. 37 There are two reasons why this contention cannot succeed. Firstly, the Tribunal was clearly aware of the requirements of the regulations as evidenced by its reference to the proposed employer as either a pre-qualified business sponsor or a standard business sponsor. The subsequent reference to "an approved business sponsor" is only to be read as a shorthand reference to the two categories of statutory qualification to which the Tribunal had previously referred. The contention amounts to an invitation to impermissibly discern error from the manner of expression of the Tribunal's reasons: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. 38 Secondly, the Tribunal did not purport to decide the issue of the qualification of the employer as a business sponsor in its decision delivered on 2 March 2001. What it did was to refer to the fact that, as at that date, the applicant's employer was not so approved. That was not a statement dependent on the non-resolution of the business sponsor application. It was a statement of fact dependent on non-compliance for that application with the requirements of reg 1.20D(2). Non-specific reference to reg 1.20D(2) of the regulations 39 Next, it is said for the applicant that when the Tribunal stated "at the time of application the visa applicant's employer was not an approved business sponsor as the employer was unable to meet the requirements of reg 1.20D(2) of the Regulations", it made a global reference to the requirements of reg 1.20D(2) without identifying the relevant portions of that subclause applicable in the matter. In doing that it is submitted the Tribunal failed to properly interpret the law and misapplied it. 40 I do not consider this submission can be accepted. The Tribunal had previously said a subclass 457 visa could be obtained on a number of grounds. It then identified the ground on which the application was made, namely sponsorship by a business operating in Australia (other than in relation to a labour agreement or a regional head quarters agreement). It went on to state that no claims had been made in respect of the other grounds, and, the material before the Tribunal did not suggest that the visa applicant met any of those other grounds. The failure alleged in this contention did not occur. In any event, the Tribunal's statement that the visa applicant's employer was not an approved business sponsor was alone sufficient to support its decision without particularisation under reg 1.20D(2) (which relates only to the business sponsorship and not to the visa). Reference to investigation report 41 In relation to the above quoted par 13 in the Tribunal's reasons referring to the investigation report, it is said an error of law on the part of the Tribunal is demonstrated. The submission is that although the Tribunal said the report was "not directly relevant", it nevertheless by the reference obtained an indirect relevance. The submission is that indirect relevance, apparently reflecting adversely on the credit of the applicant, constituted a contamination which permeated the thinking of the Tribunal. 42 Some of the background to the investigation report needs further explanation in deference to the submission. 43 The investigation report was made on 19 December 2000. The issue which it examined was the conduct of a criminal investigation to either substantiate or dispel an allegation furnished to the Department by way of an anonymous letter dated 21 September 2000 alleging the applicant's credentials as a cook were obtained by deception or were false and misleading. When questioned, the applicant said the only document that had been provided concerning her qualifications had come from her employer, the Governors Curry House. Inquiries to Trades Recognition Australia, which had classified the applicant as a cook, had shown she had provided a letter to that organisation from "Elannor Enas Catering" signed by the company director. These matters and other adverse material from related investigations were put to the applicant on 14 December 2000. The report records that she then signed a "confessional statement" accepting that she had no formal qualifications as a chef or a cook. Additionally the report recorded there was no such company as "Elannor Enas Catering" and that her sister, who had apparently signed the letter, was not a director of the purported catering company. The report therefore concluded there was compelling evidence to substantiate the allegations against the applicant. 44 An affidavit of the applicant sworn on 31 October 2001 was admitted into evidence on the hearing of the application for review on the basis that the respondent did not necessarily accept the truth of all its contents. 45 In the affidavit the applicant denied, willingly or otherwise, having made a false declaration. She said the so-called false declaration was a letter from her sister who signed it as a director of her business. Her sister had regarded herself as a director of the business but without using the expression as a director in Australian corporations law sense. The letter had referred to the applicant as a "lady chef" because in Sri Lanka "chef" and "cook" were used interchangeably with the same meaning. Furthermore, she claimed that she had signed the statement because the investigator told her to sign it and told her it would help her case. 46 For the applicant it is contended the Tribunal fell into error of law because, by its reference to the report, the Tribunal had allowed the balance to move so far in one way against the applicant as to constitute an error of law. Furthermore, the Tribunal had failed to have regard to provisions in the Evidence Act 1995 (Cth) setting standards of fairness and justice in relation to evidence taken into account: cf ss 84(1) and (2), 135(a) and (b), 136(a) and (b), 138(1) and (2)(a) and (b). 47 In my view these arguments do not assist the applicant. Counsel for the applicant was entirely unable to suggest any way in which, even if the mind of the Tribunal had been affected adversely against the applicant by the reference to the investigation report, this could have been used adversely against the applicant in respect of any paragraph in cl 457.223 of the regulations. In other words, the adverse effect contended for by counsel cannot be shown to have had any effect at all on the decision which it reached in relation to her. Additionally, I accept the submission for the respondent that on a fair and objective reading of the Tribunal's reasons for decision, the reference to the investigation report played no further part in the Tribunal's reasoning process and, in particular, was of no consequence in the Tribunal's decision which was based solely on the fact that applicant did not have approved sponsorship and was ineligible for the visa sought. Conclusion 48 For the above reasons I consider the application for an order of review should be dismissed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 15 March 2002 Pro bono Counsel for the Applicant: Mr RK O'Connor QC and Mr AJ Goldfinch Solicitor for the Applicant: Goldfinch & Co Counsel for the Respondent: Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 November 2001 Date of final submission: 4 February 2002 Date of Judgment: 15 March 2002