Desai v Minister for Immigration & Multicultural Affairs [2001] FCA 1339 (24 August 2001)

Last Updated: 20 September 2001

FEDERAL COURT OF AUSTRALIA

Desai v Minister for Immigration & Multicultural Affairs [2001] FCA 1339

VIRAL HASMUKHARI DESAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 197 OF 2001

HILL J

24 AUGUST 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 197 OF 2001

BETWEEN:	VIRAL HASMUKHARI DESAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	PERTH

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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 197 OF 2001

BETWEEN:	VIRAL HASMUKHARI DESAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	24 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant, Mr Viral Hasmukhari Desai, applies to the Court for judicial review of a decision of the Migration Review Tribunal (the "Tribunal") affirming a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (the "Minister") refusing his application for a tourist (long stay) visitor visa (class TN subclass 686) (referred to by the Tribunal as a "Long Stay (Visitor) (Class TN Subclass 686) visa"). The applicant lodged his application for the visa on 1 May 2000. At that time, he was in Australia on a short stay visitor visa and was seeking to extend the period of his visit.

2 His application form declared, among other things, that he did not intend to study. Nevertheless, the letter forwarding the application and written by a migration agent made it clear that he intended to enrol in a short term English course. The letter indicated that the applicant wished to undertake that course and look at study options with a view to returning to Australia as a full fee paying student in the year 2001. It was said that he also wished to visit friends permanently resident in Australia and to travel to Melbourne and Sydney. The application was rejected by a delegate of the Minister on the basis that the applicant wished to undertake a short term English course. It is from this rejection that the applicant appealed to the Tribunal.

3 The Tribunal's decision is, with respect, somewhat difficult to follow in that it seems rather to conflate two issues. Indeed, I did not understand counsel for the Minister to support the reasoning of the Tribunal so far as it concerned what I will later refer to as the "initial gateway". On one reading of the Tribunal's reasons, the Tribunal seems to suggest that a person who sought such a visa for the primary purpose of studying would not be seeking to undertake a visit that was genuine. Most of the Tribunal's reasons are concerned with guidelines, policy statements and directions given by the Minister under s 499 of the Migration Act 1958 (Cth).

4 It is a useful starting point to commence with the actual terms of the Migration Regulations 1994 (Cth) (the "Regulations"). Relevantly, Schedule 2 to the Regulations sets out the criteria to be satisfied in respect of what is there referred to as a "subclass 686 - tourist (long stay)" visa. In the form the Regulations then took (and continue to take), subdivision 686.1 of the schedule contained the heading "Interpretation" and a note that the word "tourism" was defined in reg 1.03. The note continued, "[n]o interpretation provisions specific to this Part". Reference to reg 1.03 shows that "tourism" is defined to mean "participation in activities of a recreational nature" including, inter alia, "informal study courses".

5 Subdivision 686.21 of Schedule 2 sets out the criteria to be satisfied at the time the application is made. Relevant for present purposes is clause 686.211 which prescribes the primary criteria that must be satisfied (the "initial gateway"), and particularly clause 686.211(a) which provides that:

"The applicant:

(a) seeks to visit Australia, or remain in Australia, as a visitor:

(i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or

(ii) for another purpose other than a purpose related to business or medical treatment;" (emphasis added)

6 It can be seen that the focus of clause 686.211(a) is on the character of the applicant's reason for seeking to visit Australia or remain in Australia, as the case may be. The criterion to be satisfied is that that character be "as a visitor". Having regard to the remaining language of clause 686.211(a), which makes it clear that a person could be characterised as a visitor even if that person was here for a purpose not of visiting individuals (but subject to the exclusion of a visit for a purpose related to business or medical treatment), it follows that the concept of "visit" is really used in opposition to stay in Australia rather than to refer to the specific purpose of the visit. Thus, a person could be a visitor notwithstanding that the person came to Australia to carry out some form of research activity, so long as the purpose of the visit was not excluded because it was for business or medical treatment.

7 This interpretation is contrary to the view that was expressed by the Tribunal but, in my view, the Tribunal erred in law in the way in which it approached the construction of Schedule 2 to the Regulations.

8 However, it is not sufficient that a person pass through the initial gateway by satisfying the criteria required to be met at the time of making the application because subdivision 686.22 of Schedule 2 sets out criteria to be satisfied as at the time the actual decision on the visa is made. No doubt some small time at least could elapse between the actual date of the application and the time the decision is made.

9 Clause 686.221(2)(a) requires the applicant for the visa to continue to satisfy the criteria set out in clause 686.211, as one might expect. However, for present purposes, there are two additional criteria which must be satisfied. First is the requirement that the applicant satisfy the Minister, "that the expressed intention of the applicant only to visit Australia is genuine" (clause 686.221(2)(c)). Second is the requirement that the exclusory criteria of clause 686.221(g) are not made out. Despite the way the Tribunal approached the problem, I am of the opinion that the reference to "visit" in clause 686.221(2)(c) is used in the same sense as it is used in clause 686.211; that is to say, in opposition to a stay. It is not concerned directly with the purpose of the visit so long as the expressed intention only to visit, as against stay, is a genuine one.

10 However, it is the exclusory criteria that are at the heart of the controversy between the parties. Clause 686.221(2)(g) provides that, inter alia, it is a requirement where the application is made in Australia, as the present application was, that two matters are satisfied, namely that:

"(ii) the Minister is satisfied that the further period of stay in Australia is not sought for the purpose of commencing, continuing or completing any studies or training; and

(iii) the Minister is satisfied that the applicant intends to comply with any conditions to which the visa is granted."

11 Having regard to clause 686.612 of Schedule 2, a visa of the kind under consideration has imposed upon it, inter alia, condition 8201 (found in Schedule 8 to the Regulations) which requires that:

"[w]hile in Australia the holder must not engage, for more than 3 months, in any studies or training."

12 It is the submission on behalf of the applicant that the exclusory criterion in clause 686.221(2)(g)(ii) is ambiguous and should be read both with reference to the definition of "tourism" to which I have referred and the condition 8201 so that the applicant is not excluded from being granted the visa applied for because of the particular course he sought to undertake. The submission points to the fact that at least informal short courses appear to be encompassed within the concept of tourism and that a person who was granted a visa of this kind and undertook a course of less than three months duration would not be in breach of condition 8201.

13 On behalf of the Minister it is submitted that the language used in clause 686.221(2)(g)(ii) should be given its ordinary English meaning and that in the present case the extended stay was clearly being sought for the purpose of commencing studies or training.

14 I should say that the only evidence, so far as I am aware, before the Tribunal as to the particular course undertaken by the applicant was a note from the West Coast International Language Academy dated 26 April 2000 which was included with the application and referred to the enrolment as being:

"(1) to study part time (10 hours per week) at West Coast International Language Academy for a period of 10 weeks."

15 Prima facie the language used in clause 686.221(2)(g)(ii) is not ambiguous at all. No doubt it is a proper principle of construction that language in regulations be construed by reference to the context in which it appears. The word "tourism" in its defined sense is, however, not used at all in the part of Schedule 2 dealing with subclass 686 except perhaps in the heading "Tourist (Long Stay)". It is difficult to conceive that it was intended that the regulation should be interpreted other than in accordance with its unambiguous language despite the heading

16 The strongest argument from the point of view of the applicant is that the Minister's construction would seem to permit a person to be granted the relevant visa but thereafter not be in breach of a condition of it if that person engaged in studies or training, so long as the period of studies or training was not in excess of three months. So, it is submitted, that the policy underlying the regulation should be taken to be that persons could obtain extension visas despite clause 686.221(2)(g) so long as the courses that they were undertaking were studies or training of less than three months duration.

17 With respect, I find it difficult, notwithstanding the necessity to attempt to construe the regulation in its context, to accept that submission. Clearly, it was necessary to formulate conditions to be imposed on a visa once it was granted because initial intentions could change. Those who framed the relevant regulation and Parliament, which at least did not disallow it, no doubt were content to permit a person who sought to remain in Australia not for the purpose of commencing, continuing or completing studies or training to nevertheless engage in such courses so long as the course was of less than three months duration. However, that does not seem to me to suggest that the words "studies or training" can in any way be read down so that clause 686.221(2)(g)(ii) does not apply to prevent a person obtaining a visa allowing an extension to the period of their visit to this country where that person does so for the purpose of participating in a course lasting less than three months.

18 It follows, in my view, that provided the English course in question satisfies the language of clause 686.221(2)(g)(ii) so that it can be said that the applicant's purpose was to commence or continue to complete "studies or training" the visa would have to be denied and in consequence it would be futile to remit the matter to the Tribunal for further consideration as its decision would, in any event, be correct.

19 The point of greatest difficulty is whether in the present circumstances the language of clause 686.221(2)(g)(ii) is so intractable that there is no conclusion open to me other than that the course should be found to fall within the excluded purpose, in which case it would be futile to remit the matter to the Tribunal or, alternatively, whether as the issue was not properly considered by the Tribunal, I should remit the matter back to it for a decision whether the particular course is one that is appropriately referred to as being "studies or training". It is common ground that the part time course could not properly be referred to as training.

20 Not without some difficulty, I am of the view that the word "studies" is an ordinary English word and that no conclusion is open other than that the course which the applicant wished to undertake and which itself is referred to as involving study is relevantly within clause 686.221(2)(g)(ii). It follows that it would be futile for me to set aside the Tribunal's decision and remit the matter back to the Tribunal when the only conclusion open to the Tribunal will be the same conclusion it has in any event reached. For these reasons I would not set aside the decision of the Tribunal but rather affirm its decision. I would make no order as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 18 September 2001

Counsel for the Applicant:	A J Goldfinch
Solicitor for the Applicant:	Goldfinch & Co
Counsel for the Respondent:	R L Hooker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 August 2001
Date of Judgment:	24 August 2001