FEDERAL COURT OF AUSTRALIA Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1524 MIGRATION – judicial review – temporary business entry visa – review by Migration Review Tribunal – whether the applicant proposed to engage in negotiations or enter into agreements as a service seller – whether the Tribunal incorrectly applied the criteria Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 475A Migration Regulations 1994(Cth) Schedule 2, Clause 457.223(8) Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, referred to Scargill v Minister for Immigration and Multicultural and Indigenous [2003] FCAFC 116, applied TAO YANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V576 of 2003 MARSHALL J MELBOURNE 18 DECEMBER 2003 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V576 OF 2003 BETWEEN: TAO YANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 18 DECEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be allowed. 2. Certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal made on 30 June 2003 affirming the decision of a delegate of the respondent not to grant the applicant a Temporary Business Entry (Class UC) Visa, Subclass 457 (Business (Long Stay)). 3. Mandamus issue directed to the Migration Review Tribunal requiring it to review according to law the decision of the delegate of the respondent refusing to grant the applicant a Temporary Business Entry (Class UC) Visa, Subclass 457 (Business (Long Stay)). 4. The respondent pay the applicant'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 VICTORIA DISTRICT REGISTRY V576 OF 2003 BETWEEN: TAO YANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 18 DECEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for review brought pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and s 475A of the Migration Act 1958 (Cth) ("the Migration Act") for writs of prohibition, certiorari and for a declaration in respect of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent to refuse the applicant a Temporary Business Entry (Class UC) Visa. 2 The issues for determination in this application are first, whether the Tribunal asked itself the correct question in considering whether the applicant had complied with Clause 457.223(8)(b) of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Migration Regulations"). In other words, did the Tribunal ask itself whether the representation that the applicant proposed to provide in the future was to be of a type or character referred to in that subparagraph. Second, an issue arises whether the applicant is entitled to the relief claimed. relevant 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 of the tribunal 13 The Tribunal affirmed the decision of the delegate of the Minister on 6 December 2002. It is convenient to first deal with the Tribunal's findings in respect of paragraph (c) of cl. 457.233(8) of the Migration Regulations. As set out above in [10], this requires that the Minister be satisfied that the proposal to represent the supplier of services is not made only for the purposes of securing the entry of the applicant to Australia. 14 The Tribunal considered this issue on the basis of the applicant's functions, duties and performance as a service seller on the earlier Subclass 457 (Business (Long Stay)) Visa and concluded that it was not satisfied that the proposal was not made only for the purposes of securing the entry of the application into Australia. Therefore the applicant failed to satisfy cl. 457.223(8)(c). 15 In making this finding, the Tribunal stated that it had taken into account the applicant's inadequate attempts to perform the duties required of him by the Harbin Municipal Committee and the applicant's unfamiliarity with the terms of his agreement with the Committee. The Tribunal also considered the policy guidelines that such visas are generally for a period of six months to enable negotiations to be undertaken. The applicant's first Subclass 457 (Business (Long Stay)) Visa was for a period of six months, and the current visa application was for a further two years. The Tribunal accepted that negotiations between educational institutions in Australia and China may be lengthy but found there was insufficient evidence to justify the applicant's protracted stay in Australia. The Tribunal was not satisfied that the applicant was actively involved in his duties since his previous application on 10 February 2000 and therefore found that it was not satisfied that the proposal was not made only for the purposes of securing the entry of the review applicant into Australia. 16 The Tribunal also considered whether the applicant had satisfied the criteria contained in cl. 457.223(8)(a) and found that the applicant satisfied the criteria as he proposed to represent the Harbin Municipal Committee, a provider of educational services, in Australia. The Tribunal first found that the applicant was appointed by a sub-branch of the Harbin Municipal Committee of the Chinese Communist Party. The Tribunal then considered whether the Harbin Municipal Committee is a supplier of services. The Tribunal noted that the subject of negotiations with Australian universities and colleges was clearly in relation to the supply of Australian teaching expertise to Chinese universities and colleges, and that the Migration Regulations require that the services to be supplied are to be supplied by the overseas business. In consequence, the Tribunal found that it was unable to take such negotiations into account in determining whether the applicant satisfied cl. 457.223(8)(a). 17 The Tribunal then considered the applicant's claim that he was engaged in negotiations with Australian schools to arrange visits by Chinese officials. The Tribunal found that any such efforts were not related to the supply of services by an overseas business. Therefore, the Tribunal was unable to take those duties into account in determining whether the applicant satisfied cl. 457.223(8)(a). 18 The Tribunal also considered the applicant's claim that he was engaged by the Harbin Municipal Committee to recruit Australian students to study at Chinese universities and colleges. The applicant's claim on this point was supported by the applicant's letter of appointment. The Tribunal stated: "The Tribunal finds that the Harbin Municipal Committee is a supplier of services, namely a provider of educational services, and the review applicant proposes to represent that employer in Australia. The Tribunal finds, therefore, that the review applicant satisfies clause 457.223(8)(a)." 19 Having determined that the applicant met the criterion contained in cl. 457.223(8)(a), the Tribunal then considered whether the applicant satisfied the criterion in cl. 457.223(8)(b). The Tribunal considered the documents in evidence before it and the applicant's claim at the hearing that he had arranged for two of his friends in Australia to attend universities or colleges in Harbin and Beijing in 2002. The Tribunal noted that there was no evidence that those friends had paid fees for their studies in China. The Tribunal then stated: "It follows that there is no documentary evidence that the review applicant has actually engaged in negotiations, or entered into agreements, for the sale of educational services on behalf of the Harbin Municipal Committee." [Emphasis added.] 20 The Tribunal stated that in the absence of such documentary evidence, it was necessary for the Tribunal to determine the weight to be attributed to the applicant's evidence of his duties. The Tribunal noted that the applicant had difficulty providing the Tribunal with a coherent account of his salary and financial arrangements, and noted inconsistencies between his accounts and the salary records prepared by the Harbin Municipal Committee. The Tribunal found: "The Tribunal finds that the review applicant has not demonstrated adequate familiarity with the terms of his employment with the Harbin Municipal Committee and has not demonstrated a genuine commitment to the goals of the Harbin Municipal Committee in appointing him to the position. The review applicant's poor efforts to explain his inadequate efforts to perform the duties for which he was engaged suggest that he is not actively engaged in those duties. The Tribunal finds, therefore, that the review applicant's evidence in relation to his duties as a recruiter of Australian students for Chinese universities and colleges is entitled to be given minimal weight only."[Emphasis added.] 21 In concluding on the criterion in cl. 457.223(8)(b), the Tribunal stated: "The Tribunal takes into account the absence of any documentary evidence that the review applicant has engaged in negotiations, or entered into agreements, for the sale of educational services on behalf of the Harbin Municipal Committee and gives only minimal weight to the claims made by the review applicant at his hearing. The Tribunal finds that there is insufficient evidence that the review applicant has engaged in negotiations or entered into agreements, for the sale of educational services on behalf of the Harbin Municipal Committee, and finds that he does not satisfy clause 457.223(8)(b)." 22 The Tribunal found it unnecessary to consider any of the remaining criteria. grounds of review 23 The application for review filed on 25 July 2003 contains one ground of review. The application stated: "The decision was made in breach of an indispensable condition or an essential pre-condition to the jurisdiction of the Tribunal, or an imperative duty or an inviolable limitation or restraint upon the power conferred upon it under s65, because it failed to deal with and/or misconstrued an essential criterion or criteria for the grant of the visa." 24 The application for review sets out four particulars of the alleged error. The applicant's contentions of fact and law, filed on 13 November 2003, state that the principal grounds of review relied upon are those contained in paragraph 1(a.) and (c). of the application for review. Those grounds are: "(a) The Tribunal erred in interpreting the requirement that the applicant be a representative of a supplier of services which involved negotiating or entering into agreements for the sale of services. … (c) The Tribunal erred in its understanding of the term "the purposes of securing entry" in Regulation 457.223(8)(c)." clause 457.223(8)(c) – "for the purposes of securing the entry" 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. clause 457.223(8)(b) – negotiating or entering into agreements 26 In respect of cl. 457.223(8)(b) of Schedule 2 of the Migration Regulations, the applicant's claim is that the Tribunal "impose[d] an impermissible gloss … that the [a]pplicant has actually been engaged in negotiations or entering into contracts or be actively involved in those duties at the time of the decision." The applicant submitted that once the Tribunal had accepted that the applicant was proposing to represent the Harbin Municipal Committee, a service provider, all that the Regulations required was that the representation involved negotiating or entering into contracts and not whether the applicant had previously been involved in such activities. The applicant submitted that the test to be applied is prospective, not retrospective, and once the first limb of the prospective intention (that is, cl. 457.223(8)(a)(ii), an intention to represent the supplier) is satisfied, it is only necessary to establish the nature of the function and duties of the representation. 27 The applicant further submitted that the applicant's alleged lack of familiarity with the terms of his remuneration had no logical or evidentiary nexus to the nature of his duties and that the Tribunal erred in determining as significant the applicant's inadequate efforts to perform the duties for which he was engaged. 28 The respondent accepted that cl. 457.223(8)(a) only requires that the applicant "proposes to represent the supplier in Australia" and submitted that, had the applicant not resided in Australia, the question of whether he had previously entered into negotiations or agreements with Australian consumers would not be relevant to the grant of the Visa. However, the respondent submitted that it was appropriate for the Tribunal to consider whether the applicant had actually provided the representation he claimed he would provide in his previous visa application, in circumstances where he had previously held a visa to engage in precisely the same activities. Consideration of that issue, the respondent submitted, was logically probative of whether the applicant did now "propose" to engage in the representation of the type required by cl. 457.223(8)(b). 29 A plain reading of the language of cl. 457.223(8)(b) discloses that the relevant question for the Tribunal is whether the representation which the applicant "proposes" to provide involves "negotiating, or entering into agreements, for the sale of services". Once the Tribunal was satisfied that the applicant met cl. 457.223(9)(a), in that he proposed to represent a service seller, consideration of cl. 457.223(8)(b) required examination of the quality or character of the representation. This requires consideration of the duties and functions of the applicant representing the overseas supplier. 30 In circumstances where the applicant has been performing a role over a period of years, the duties and functions of the applicant would be relevant to a consideration of whether the applicant, in truth, "proposes" to provide representation that involves negotiating or entering into agreements for the sale of services. The Tribunal correctly used evidence of the applicant's performance of duties and functions whilst in possession of a visa for the purpose of such representation to determine what weight was to be given to his evidence. However, the Tribunal's conclusions in respect of the criterion disclose an error. The Tribunal stated: "The Tribunal takes into account the absence of any documentary evidence that the review applicant has engaged in negotiations, or entered into agreements, for the sale of educational services on behalf of the Harbin Municipal Committee and gives only minimal weight to the claims made by the review applicant at his hearing. The Tribunal finds that there is insufficient evidence that the review applicant has engaged in negotiations, or entered into agreements, for the sale of educational services on behalf of the Harbin Municipal Committee, and finds that he does not satisfy clause 457.2[2]3(8)(b)." [Emphasis added.] 31 The Tribunal's reasoning on this point shows that the question it considered in respect of the applicant was whether the applicant had previously engaged in negotiations or entered into agreements. The question the Tribunal should have addressed is whether the applicant proposed to engage in negotiations or enter into agreements. In considering the character of the representation proposed by the applicant, the Tribunal was not limited to the applicant's past performance as a service seller. In fact, the subject of the Tribunal's inquiry should have been the content of the applicant's proposed future representation, based not only on what the applicant has done in the past but also upon what he hopes to achieve in the future. 32 Counsel for the respondent further submitted that the High Court decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 provided support for the view that the Tribunal could use the applicant's past conduct as a guide to his future conduct. The leading majority judgment in that case stated (at 575): "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is like to be the most reliable guide as to what will happen in the future." 33 It is correct that the Tribunal may consider the applicant's past conduct as a guide to what he "proposed" in the future and as a means to assess his credibility about his future proposed conduct. However, in this case, the Tribunal found that the lack of evidence that the applicant had previously engaged in conduct of the type required meant that he did not satisfy the requirement of proposing to engage in that type of conduct in the future. This error of the Tribunal in asking itself the wrong question is a constructive failure to exercise jurisdiction, which is reviewable by the Court: see Scargill v Minister for Immigration and Multicultural and Indigenous [2003] FCAFC 116. is the applicant entitled to relief? 34 The respondent submitted that the applicant is not entitled to relief because he did not put anything before the Tribunal to suggest that he would do anything in the future that would be different to his conduct in the past as a service seller. All the applicant did, the respondent contended, is to provide the Tribunal with evidence about his past performance. In those circumstances, any error made by the Tribunal, it was said, is immaterial to the outcome and therefore the applicant is not entitled to relief. 35 The applicant submitted that evidence of the quality of the representation was put before the Tribunal in the form of the terms of the applicant's appointment. Had the Tribunal asked itself the correct question, the applicant contended, it might have given greater weight to what the applicant proposed for the future. 36 It is clear that the Tribunal has erred in considering the applicant's claims, and the applicant is entitled to have his claims dealt with by the Tribunal according to law. The Tribunal may, of course, conclude that the character of the applicant's proposal for the future is not of the type required by cl. 457.223(8)(b). On considering the application according to law the Tribunal may also conclude that the proposal is of the requisite character. There is no evidence before the Court to conclusively indicate that the Tribunal's error was immaterial to the decision. In these circumstances the Court is of the view that the applicant is entitled to the relief claimed and should not refuse relief on grounds of futility or in the exercise of any discretion. conclusions on the application 37 The Tribunal has erred in applying the criteria contained in cl. 457.223(8)(c) and cl. 457.223(8)(b) to the applicant's application for the Visa. In relation to subparagraph (b) it has not addressed the issue raised by the subparagraph. In relation to subparagraph (c) it failed to acknowledge that that criterion is only relevant to off-shore applications. 38 The applicant is entitled to certiorari directed to the Tribunal quashing the decision to affirm the decision of the delegate of the respondent Minister to refuse the application for the Visa. The applicant is also entitled to mandamus directed to the Tribunal requiring it to review the decision of the delegate of the respondent according to law. There is no reason why costs should not follow the event. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 18 December 2003 Counsel for the Applicant: Mr John A Gibson Solicitor for the Applicant: Jonathon Wong & Associates Counsel for the Respondent: Dr Stephen Donaghue Solicitor for the Respondent: Clayton Utz Date of Hearing: 10 December 2003 Date of Judgment: 18 December 2003