Suk Hong Yoon v Minister for Immigration & Multicultural Affairs [1998] FCA 93 (20 February 1998)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION LAW - review of decision of Immigration Review Tribunal - applicant was refused subclass 414 Business (temporary) visa - whether applicant satisfied applicable criteria - application made out of time.

Migration Act 1958 (Cth), ss 5(9), 14, 29, 30, 31, 475

Migration Regulations, Part 414 of Schedule 2, Schedule 3 criteria 3001, 3002, 3003, 3004 & 3005

Migration Regulations (Amendment) (Statutory Rule 76 of 1996)

Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583, cited

SUK HONG YOON v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 397 of 1997

BRANSON J

SYDNEY

20 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 397 of 1997

BETWEEN:	SUK HONG YOON Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE(S):	BRANSON J
DATE OF ORDER:	20 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

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	NG 397 of 1997

BETWEEN:	SUK HONG YOON Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	BRANSON J
DATE:	20 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for review by the Court of a judicially reviewable decision within the meaning of s 475 of the Migration Act 1958 (Cth) ("the Act"). The decision in question is a decision of the Immigration Review Tribunal ("IRT") made on 29 April 1997, whereby the IRT affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse the applicant a subclass 414 Business (temporary) visa.

BACKGROUND

The following facts are taken from the reasons for decision of the IRT.

The applicant is a Korean citizen who was born in Korea on 17 May 1960. He is married and has two children. He arrived in Australia on 25 March 1993. At that time, he held a class 670 visitors Australia entry visa which had been issued on 11 December 1992 for one year for multiple travel. It permitted stays of three months on each entry. Upon the applicant's arrival in Australia he was granted an entry permit for temporary stay until 25 June 1993. On 24 June 1993, the applicant lodged an application to remain permanently in Australia on "special need relative" grounds. This application had not been determined when, on 13 March 1995, the applicant applied for the temporary business visa with which this application is concerned.

LEGISLATIVE BACKGROUND

Section 29 of the Act authorises the Minister to "grant a non-citizen permission, to be known as a visa", to remain in Australia. Section 30 of the Act provides that visas may be either permanent or temporary. A temporary visa may authorise a non-citizen to remain in Australia:

"(a) during a specified period; or

(b) until a specified event happens; or

(c) while the holder has a specified status."

Section 31 of the Act provides for different classes of visas, and for regulations to be made which prescribe criteria for a visa or visas of a specified class.

Regulation 2.01 of the Migration Regulations provides as follows:

"For the purposes of section 31 of the Act, the prescribed classes of visas are:

(a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and

(b) the following classes:

(i) transitional (permanent); and

(ii) transitional (temporary)."

The class of visa for which the applicant applied on 13 March 1995 was a Business (Temporary) Visa (Class TB) Subclass 414 (Specialist) visa ("subclass 414 visa").

Criteria for the subclass 414 visa as at 13 March 1995 were set out in Schedule 2 of the Migration Regulations, in Part 414. Such criteria incorporated by reference certain criteria from Schedule 3 of the Migration Regulations, namely, criteria 3002, 3003, 3004 and 3005.

On 1 November 1995, the subclass 414 criteria, including criteria 3002, 3003, 3004 and 3005, were amended.

Statutory Rule No 76 of 1996, which amended the Migration Regulations, deleted from the Migration Regulations Part 414 of Schedule 2. It provides that an application for a Business (Temporary)(Class TB) visa that had not been finally determined within the meaning of subsection 5(9) of the Act before 1 August 1996 must be decided in accordance with the criteria that applied to the application on 31 July 1996.

Section 5(9) of the Act provides as follows:

"For the purposes of this Act, an application under this Act is finally determined when either:

(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed."

Part 5 of the Act provides, amongst other things, for review of certain decisions by the IRT.

As at 1 August 1996, the applicant's application for a Business (Temporary)(Class TB) visa had not been finally determined. The decision of the delegate of the Minister had been affirmed by a review officer of the Migration Internal Review Office on 13 December 1995, and an application for review by the IRT had been made on 22 December 1995. A decision on that application to the IRT had not been delivered by 1 August 1996.

REASONS OF THE IRT

The IRT reviewed the changes made to the prescribed criteria for a subclass 414 visa. It noted:

"The transitional provisions of Statutory Rule No 76 of 1996, which effected the amendments, provide that applications for subclass 414 visas which were not finalised prior to 1 August 1996 are to be determined according to the provisions of subclass 414 of Schedule 2 as they stood at 31 July 1996."

The IRT purported to set out in its reasons for decision the provisions of Part 414 of Schedule 2 of the Migration Regulations as in force on 31 July 1996 so far as they were relevant to the application. In fact, the provisions which it set out were those in force between 1 September 1994 and 31 October 1995. However, nothing in the event turns on the differences between the two sets of provisions. Each of the two sets of provisions included a paragraph 414.211(e), in the same terms. Such paragraphs incorporated by reference the Schedule 3 criteria 3002, 3003, 3004 and 3005.

The IRT concluded that the only real issue before it was that of whether the applicant was able to meet the requirements of paragraph 414.211(e) of Schedule 2 of the Migration Regulations. It set out in its reasons for decision the Schedule 3 criteria as in force as at the date of the applicant's application (ie 13 March 1995) and as in force on 31 July 1996. However, it appears to have regarded the criteria as in force as at 13 March 1995 as those relevant to its consideration. It concluded that the applicant could not meet the requirements of either criteria 3002 or 3003 of the Schedule 3 criteria.

CONSIDERATION

The visa for which the applicant relevantly made application was a Business (Temporary) (Class TB) visa. The relevant transitional provisions contained in Statutory Rule No 76 of 1996 had the effect, in my view, that the IRT was required to review the decision of the delegate of the Minister having regard to the criteria that applied to Business (Temporary) (Class TB) visas on 31 July 1996 (see Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583).

Paragraph 414.21 of Part 414 of Schedule 2 of the Migration Regulations, as in force on 31 July 1996, provided as follows:

"414.21 Criteria to be satisfied at time of application

[NOTE: There are no criteria to be satisfied at the time of application outside Australia.]

414.211 If the application is made in the migration zone the applicant is either:

(a) the holder of a Business (Temporary) (Class TB), Cultural/Social, Educational, Expatriate, Family Relationship, Interdependency, Retirement, Supported Dependant, Working Holiday, subclass 303 or subclass 427 visa; or

(b) the holder of a Temporary Business Entry (Class UC), Student, Long Stay (Visitor), Short Stay (Visitor) or Border (Temporary) visa; or

(c) the holder of a Confirmatory visa that was granted on the grounds that the applicant satisfied the criteria for one of the visas specified in paragraph (a) or (b); or

(d) not the holder of a substantive visa and:

(i) the last substantive visa held by the applicant was of a kind specified in paragraph (a) or (c); and

(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005; or

(e) not the holder of a substantive visa and:

(i) the last substantive visa held by the applicant was of a kind specified in paragraph (b); and

(ii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005."

The Schedule 3 criteria are additional criteria applicable to unlawful non-citizens and certain bridging visa holders. As at 31 July 1996, they were in the following terms:

"3001. (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or

(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or

(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii) entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii) the last day when the applicant held a substantive or criminal justice visa; or

(iv) the day when the applicant last entered Australia unlawfully.

3002. The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

3003. If:

(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b) on 31 August 1994, the applicant was either:

(i) an illegal entrant; or

(ii) the holder of an entry permit that was not valid beyond 31 August 1994;

the Minister is satisfied that:

(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit (if any) was granted (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

3004. If the applicant:

(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit or visa (if any) was granted (other than a condition of which the applicant was in breach solely because the entry permit or visa ceased to be in effect); and

(f) either:

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

3005. A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

(a) this Schedule; or

(b) Schedule 6 of the Migration (1993) Regulations; or

(c) regulation 35AA or subregulation 42 (1A) or (1C) of the Migration (1989) Regulations."

It was accepted by the applicant that if he satisfied the criteria specified in paragraph 414.21 of Part 414 of Schedule 2 of the Migration Regulations, it could only be by reason of paragraph 414-212(e). To satisfy such paragraph it was necessary for the applicant:

(a) not to be the current holder of a substantive visa;

(b) to have held, as the last substantive visa held by him, a Temporary Business Entry (Class UC), Student, Long Stay (Visitor), Short Stay (Visitor) or Border (Temporary) visa; and

(c) satisfy the Schedule 3 criteria.

It is not in dispute that, as at the time of his application, the applicant was not a current holder of a substantive visa. He held only a bridging visa by reason of his application for a "special need relative" visa. The last substantive visa held by him had been a Short Stay (visitor) visa. The crucial issue was therefore that of whether, at the time of his application, the applicant satisfied the Schedule 3 criteria as such criteria applied on 31 July 1996.

It is plain that at the date of application, the applicant did not satisfy criterion 3002 of Schedule 3 as such criterion applied on 31 July 1996. The applicant had become an illegal entrant on 26 June 1993 under s 14(3) of the Act, which then stated:

"A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia."

The applicant's application for a subclass 414 visa was made on 13 March 1995, ie. more than 12 months after he became an illegal entrant (see criteria 3001(2)(b) and 3002).

Indeed, it may be noted, although, in my view, it is not strictly relevant, that the applicant had not satisfied criterion 3002, literally construed, as it applied as at the date of his application. At that time, criterion 3002 was in the following terms:

"If the applicant ceased to be the holder of a substantive visa and whether clause 6002 in Schedule 2 of the Migration (1993) Regulations applied, or section 195 of the Act applies, to the applicant or not, the application is validly made within 12 months after that substantive visa ceased to be in effect."

The case of the applicant before this Court was, as it had been before the IRT, that the Schedule 3 criteria, as they applied at the date of his application, could not be literally construed, because to do so would result in manifest unfairness. It appears that the Department for Immigration and Ethnic Affairs recognised that there were certain deficiencies in the wording of the Schedule 3 criteria following the introduction of the Migration (1994) Regulations on 1 September 1994 (see Migration Series Instruction No 121 - issued 8 September 1995.) The criteria were amended with effect from 1 November 1995. By reason of the transitional provisions contained in Statutory Rule No. 76 of 1996, it is the amended criteria which are relevant to the applicant's application for a subclass 414 visa. It is thus not necessary for me to give consideration to the detailed submissions made on behalf of the applicant as to the proper construction of the Schedule 3 criteria as they applied on 10 March 1996.

CONCLUSION

I am satisfied that the IRT made an error of law in this matter, albeit not the error identified by the applicant. Nonetheless, it seems to me that no point would be served by remitting the matter to the IRT for reconsideration. The application made by the applicant for a subclass 414 visa must fail. On the undisputed evidence, the application was made out of time having regard to the applicable Schedule 3 criteria.

The application will be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant:	Mr K Osei
Counsel for the Respondent:	Ms E Wilkins
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 1997
Date of Judgment:	20 February 1998