Rizzotti v Minister for Immigration & Multicultural Affairs [2001] FCA 172 (6 March 2001)

Last Updated: 7 March 2001

FEDERAL COURT OF AUSTRALIA

Rizzotti v Minister for Immigration & Multicultural Affairs [2001] FCA 172

IMMIGRATION - Temporary Business Entry (Class UC) visa - whether Migration Review Tribunal misconstrued expression "supplier of services" in cl 457.223(8) of Schedule 2 to the Migration Regulations.

Migration Regulations, Sch 2, cll 457.111(2)(a); 457.511(a); 457.223(6), (8).

Migration Legislation Amendment Act (No.1) 1998 (Cth), Schedule 2, cl.41.

Migration Act 1958 (Cth), s 476(2)(b), (3)(d), (e).

Explanatory Statement, Migration Regulations (Amendment), Statutory Rules No. 76 of 1996.

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, cited.

Collector of Customs v Agfa-Geveart Ltd [1996] HCA 36; (1996) 186 CLR 389, cited.

Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309, cited.

LUCA ALESSANDRO RIZZOTTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1228 of 2000

SACKVILLE J

SYDNEY

6 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1228 OF 2000

BETWEEN:	LUCA ALESSANDRO RIZZOTTI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	6 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1228 OF 2000

BETWEEN:	LUCA ALESSANDRO RIZZOTTI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	6 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Migration Review Tribunal ("MRT") given on 23 October 2000. The MRT affirmed the decision of a delegate of the respondent ("the Minister") refusing to grant the applicant a Temporary Business Entry (Class UC) visa.

2 The applicant is an Italian citizen, born on 16 February 1971. He arrived in Australia on 10 April 1997, on a visitor's visa. On 29 September 1997, the applicant lodged an application for a Temporary Business Entry (Class UC) visa, sub-class Business (Long Stay). The application was accompanied by a letter detailing the applicant's claims. The letter was written on his behalf by a firm of solicitors.

3 The provisions governing the grant of a Temporary Business Entry (Long Stay) visa, permit the holder of a visa, who is in Australia at the time of the grant, to remain in this country for a period of up to four years from the date of the grant: see Migration Regulations, Schedule 2, cl 457.511(a). The applicant stated in his application of September 1997 that his proposed period of stay in Australia at that time was three years.

4 The pace of the administrative decision-making process in this case cannot be described as excessively rapid. On 24 September 1998, one year after the initial application was lodged, the Minister's delegate decided to refuse the grant of a visa. This decision was affirmed by a review officer on 19 February 1999. The applicant lodged his application for review with the Immigration Review Tribunal on 17 March 1999. This became an application for review to the MRT on 1 June 1999 by virtue of the transitional provisions of the Migration Legislation Amendment Act (No1) 1998 (Cth), Sch 1, cl 41. The MRT did not make its decision until 23 October 2000, more than eighteen months after the application for review had been lodged with the Immigration Review Tribunal and more than three years after the applicant had lodged his initial application for a Temporary Business Entry (Long Stay) visa. In the result, the administrative decision-making process extended beyond the period for which the applicant had said he wished to remain in Australia.

THE CRITERIA

5 An applicant for a Temporary Business Entry (Long Stay) visa must comply, at the time of the decision, with the criteria specified in one of the sub-clauses of cl 457.223 of Schedule 2 to the Migration Regulations. The applicant's contention before the MRT was that he satisfied both sub-cl (6) and sub-cl (8) of cl 457.223.

6 The MRT found that the applicant satisfied neither sub-cl (6) nor sub-cl (8). No challenge is now made to the MRT's finding concerning sub-cl (6). However, the applicant contends that the MRT erred in finding that the applicant could not satisfy sub-cl (8). Sub-clause (8) provides as follows:

" Service Sellers

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."

7 It is relevant to the construction of cl 457.223(8) to note that cl 457.111(2)(a) provides that, for the purposes of Part 457, a business activity is of benefit to Australia if

"(a) the conduct of the activity contributes to:

(i) ...; or

(ii) expansion of Australian trade in goods or services; or

...". (Emphasis added.)

THE GROUNDS OF REVIEW

8 The handwritten application filed by the applicant in this Court, presumably without legal assistance, identified as the sole ground of review an error by the MRT being that

"the interpretation of the applicable law with respect to the definition of the `supply [sic] of services', as required by [cl] 457.223(8)(a),(b) of [Schedule 2 to] the Migration Regulations."

9 At the hearing the applicant was represented by a solicitor. The solicitor informed the Court that he had been engaged only a few days prior to the hearing. It may have been for that reason that the applicant's written submissions mostly either raised contentions specifically excluded from the grounds of review available under Part 8 of the Migration Act 1958 (Cth) ("Migration Act") or impermissibly challenged the MRT's findings of fact.

10 The applicant's written submissions contended, for example, that the MRT's findings were "based upon a view of the facts which could not be reasonably entertained". They also contended that the MRT had failed to take account of relevant considerations or, alternatively, had taken into account irrelevant considerations. None of these grounds is available under Part 8 of the Migration Act: see s 476(2)(b), (3)(d), (e). It is therefore not necessary to say anything more about them. Nor is it necessary to consider the appellant's criticisms of the MRT's findings of fact, since such criticisms cannot establish any ground of review available under Part 8 of the Migration Act.

11 In the course of his oral submissions, the applicant's solicitor reverted to the contention that the MRT had erred in its construction of the expression "supplier of services" in cl 457.223(8)(a)(i). He also submitted that it had erred in its construction of the word "services" in cl 457.223(8)(b). The error was said to lie in the MRT's failure to interpret these terms as embracing the supply or sale of goods, as well as what the MRT described as the "supply of an activity of human labour". Before considering these submissions, it is convenient to outline the MRT's reasoning.

THE MRT'S REASONS

12 The applicant stated to the MRT that he wished to represent a company known as Falcongate Australia Pty Ltd ("Falcongate"). Falcongate was owned by an Italian company, Rizzotti s.r.l. ("Rizzotti"), of which the applicant's father was the chief executive officer. (At another point in the MRT's reasons it is said that the applicant's father owned all shares in Falcongate, but nothing turns on this.) According to the applicant, Rizzotti acted as

"a distributor of a broad variety of high quality Italian manufactured items which can be used for domestic or other applications."

13 The applicant stated that he was not responsible for the management of Falcongate, but that he represented the company in some of its business activities. In particular, his task was to negotiate and reach agreement with builders over deals. He kept his father advised of negotiations and, when a sale was imminent, his father dealt with the Australian customers directly.

14 The applicant made available to the MRT a report on Falcongate's activities, which showed that the company had transacted some business in Australia. The applicant provided invoices issued by Falcongate relating to the delivery of products, including clamping magnets, tiles, rails and a ceramic basin. Falcongate had also issued four invoices to European companies for what the MRT described as "agency fees/contributions", relating to the exhibition of those companies' products at the Interbuild Exhibition.

15 The MRT recorded that it had asked the applicant whether Rizzotti s.r.l. and Falcongate were suppliers of services or distributors of products. The applicant had replied that, while the company certainly supplied products, because of the very advanced types of products sold, the companies also had to supply services to customers. These services, included helping architects and builders understand how the products could be used, installed and maintained.

16 The MRT first addressed the applicant's claim that he satisfied the criteria specified in cl 457.223(6). It rejected that claim. It is not necessary to consider the MRT's reasons for doing so.

17 The MRT then turned to the applicant's claim to have satisfied the criteria in cl 457.223(8). The MRT found that Rizzotti was an overseas "supplier" and that the applicant was a "representative" of Rizzotti. The crucial issues remaining were:

* whether Rizzotti was a "supplier of services" within sub-cl (8)(a)(i); and

* whether the applicant's role involved "negotiating or entering into agreements for the sale of services", but did not involve "the actual supply, or direct sale, of the services", within sub-cl (8)(b).

18 The MRT observed that the Procedures Advice Manual 3 ("PAM 3") explained that the "service sellers" stream was designed to make provision for Australia's commitments under the General Agreement on Trade in Services ("GATS") to permit the temporary entry and stay, without labour market testing, of service sellers. The MRT also noted, however, that the Explanatory Statement to SR 76 of 1996, which introduced the "service seller" provisions into the Migration Regulations, made no reference to GATS.

19 The MRT considered that the proper approach was to interpret the terms in question in their context. Sub-clause (8)(b) made it clear that the services in question were those which were sold by agreement and then supplied. The context implied that the term "services" was:

"being used in the economic ` goods and service' sense, i.e. a service being the supply of an activity of human labour rather than a specific physical commodity or good. The [MRT] notes that the phrase `goods and services' is used in cl 457.211(a)(ii). The [MRT] considers this interpretation to be consistent with the unspecified goal of implementing Australia's GATS obligations as stated in PAM 3".

20 The MRT then found that the applicant did not meet the requirements of cl 457.223(8)(a)(i). It expressed its findings this way:

"Having considered all of the evidence before it, the [MRT] does not accept that Rizzotti srl is `a supplier of services'. On the basis of submissions from the visa applicant, the [MRT] finds that Rizzotti s.r.l. is `a distributor of high quality Italian manufactured items' (goods). No documentation - such as contracts or agreements existing between Rizzotti s.r.l. or manufacturers or other companies - has been provided which would establish that Rizzotti s.r.l. is supplying a service of the kind envisaged by the Regulations".

21 The MRT stated that no evidence had been provided to it that the applicant had negotiated or entered into agreements in Australia for the sale of "services", as distinct from goods, to be supplied by Rizzotti. On the basis of the applicant's own evidence, including the invoices, the MRT found that the applicant's "basic role in Australia is to promote and sell Italian goods or products". While the applicant had suggested that the products were so advanced that it was necessary to provide advice and information to actual or potential purchasers, the MRT did not regard this as a "service" in the sense it had already outlined. Rather, it was "part of normal sales or promotion of products". The invoices relating to exhibiting the products of European companies at the Interbuild Exhibition were properly to be seen as part of Falcongate's role in promoting those products, rather than as evidence of "negotiating or entering into agreements for the sale of services" as a representative of Rizzotti. Since the applicant had provided no evidence that he had negotiated or entered into agreements for the sale of services, the MRT found that he did not meet the requirements of cl 457.223(8)(b).

22 The MRT then found that, even if the activities performed by the applicant in Australia were "services" in the sense intended by the Migration Regulations, he was providing a service directly. This, too, would prevent him from meeting the criteria specified in cl 457.223(8)(b).

23 Since, in the MRT's view, the applicant did not meet the criteria specified in cl 457.223(8), he was not eligible for a Temporary Business Entry (Long Stay) visa.

REASONING

24 The only submission advanced on behalf of the applicant on the construction question was that the MRT should have construed the expressions "supply of services" and "sale of services" in subcll 457.223(8) to include the sale of goods. In support of this contention, the appellant's solicitor referred to the Macquarie Dictionary definition of "service", viz:

"the supplying or supplier of any articles, commodities, activities, etc., required or demanded".

25 There is no doubt, as this definition suggests that the words "service" and "services" are capable of a broad construction. The High Court has said as much in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at 11, per Brennan CJ and McHugh J; at 23, per Dawson and Gaudron JJ; at 27, per Toohey J; at 41, Gummow J; at 70, per Kirby J. But the task of the Court, as appears from IW v City of Perth itself, is to ascertain the intention of the legislation or statutory instrument having regard both to the language used and its context. Individual words may or may not be used in their widest sense in particular legislation or statutory instruments.

26 In my view, the MRT was correct to draw a distinction between a supplier of services and a supplier of goods. The language of subcl (8) plainly contemplates that, in order to come under par(a)(i), the supplier must engage in the sale of services, not merely in the sale of goods. It is not an ordinary use of language to use the expression "sale of services" to encompass the sale of goods. The distinction drawn by the MRT is strengthened by the fact that cl 457.111(2)(a)(i), also within Part 457 of the Migration Regulations, refers to Australian trade in "goods or services". This language demonstrates that the drafter of Part 457 was alive to the distinction between the two forms of trade and that the choice of "services" in cl 457.223(8), as distinct from "goods", was deliberate.

27 It follows, as the MRT held, that a supplier does not come within subcl (8)(a)(i) merely because it distributes goods. Nor does it come within subcl (8)(a)(i) merely because it provides services incidental to the sale of goods or because it promotes its goods. It has to be a supplier of services, in the sense that its business includes the sale of services.

28 Of course, a particular trader may be a supplier of both goods and services, in that both are sold to customers. But there is nothing in the MRT's reasoning that denies that possibility. Having construed the expression "supplier of services" to refer to a trader who sells services as such, the MRT found that, in the absence of documentation such as agreements or contracts relating to the sale of services, Rizzotti was not a supplier of services in this sense. In my opinion, this reasoning does not disclose any error of law.

29 In the light of the conclusion that Rizzotti was not a supplier of services, it is perhaps not surprising that the MRT also found that the applicant did not satisfy cl 457.223(8)(b), because he had not negotiated or entered into agreements for the sale of services. The MRT distinguished between the promotion and sale of products and the sale of services. While those two activities might not necessarily be mutually exclusive in all cases, there was nothing exceptionable in the MRT's finding that the applicant had not been involved in negotiating or entering into agreements for the sale of services. I construe the MRT's reference to the invoices relating to the Interbuild Exhibition as a finding that the invoices (which require payment of a "[f]inancial contribution for Interbuild Exhibition") did not evidence transactions whereby Falcongate sold services to customers. Whether that finding is correct as a matter of fact is not to the point. In my opinion, the MRT did not misconstrue the language of cl 457.223(8)(b).

30 I should add that Mr Beech-Jones briefly adverted to the question of whether the issue of construction raised by the applicant was in truth an issue of law or merely one of fact: cf Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, at 395-397, per curiam; Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309. The conclusions I have reached makes it unnecessary to address the question.

CONCLUSION

31 The applicant has not established that the MRT erred in its construction of cl 457.223(8). The application must be dismissed, with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Associate:

Dated: 6 March 2001

Solicitor for the Applicant:	Mr C Stanford of Stanford Lawyers
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 February 2001
Date of Judgment:	6 March 2001