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Cases

MIGRATION - Tourist (Short Stay) visa subclass 676 - whether primary judge erred in allowing application for review of decision of Migration Review Tribunal - whether Tribunal failed to address the wrong question in determining whether respondent satisfied the criteria for the grant of a Tourist (Short Stay) visa - construction of the phrase "a purpose related to business"

Minister for Immigration & Multicultural Affairs v Saravanan(includes corri

Minister for Immigration & Multicultural Affairs v Saravanan(includes corrigendum dated 3 April 2002) [2002] FCAFC 81 (27 March 2002); [2002] FCA 348
Last Updated: 9 May 2002


Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCAFC 81
Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCA 348


NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)


The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCA 348


MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SARAVANAN

V812 OF 2001

DRUMMOND, MARSHALL AND FINKELSTEIN JJ

MELBOURNE

27 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V812 OF 2001



BETWEEN:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND:
SIVAGURU KANAPATHY SARAVANAN

RESPONDENT

JUDGES:
DRUMMOND, MARSHALL AND FINKELSTEIN JJ

DATE OF ORDER:
27 MARCH 2002

WHERE MADE:
MELBOURNE




CORRIGENDUM

In the Reasons for Judgment of the Honourable Justices Drummond, Marshall and Finkelstein JJ on 27 March 2002:

1. Delete the word "wrong" in the third line of the Catchwords, and substitute the word "correct".

I certify that this is a true copy of the corrigendum made to the Reasons for Judgment in this matter of the Honourable Justices Drummond, Marshall and Finkelstein.



Associate:

Dated: 3 April 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCA 348


MIGRATION - Tourist (Short Stay) visa subclass 676 - whether primary judge erred in allowing application for review of decision of Migration Review Tribunal - whether Tribunal failed to address the wrong question in determining whether respondent satisfied the criteria for the grant of a Tourist (Short Stay) visa - construction of the phrase "a purpose related to business"

Migration Regulations 1994 (Cth) Sch 2 cl 676.21

Ugochukwu v Minister for Immigration and Multicultural Affairs [2000] FCA 1602, referred to

Naumovska v Minister for Immigration and Ethnic Affairs (1982) 41 ALR 635, referred to

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SIVAGURU KANAPATHY SARAVANAN

V 812 OF 2001

DRUMMOND, MARSHALL AND FINKELSTEIN JJ

MELBOURNE

27 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 812 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND:
SIVAGURU KANAPATHY SARAVANAN

RESPONDENT

JUDGES:
DRUMMOND, MARSHALL AND FINKELSTEIN JJ

DATE OF ORDER:
27 MARCH 2002

WHERE MADE:
MELBOURNE



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, including reserved costs (if any), to be taxed in default of agreement.

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
V 812 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND:
SIVAGURU KANAPATHY SARAVANAN

RESPONDENT



JUDGES:
DRUMMOND, MARSHALL AND FINKELSTEIN JJ

DATE:
27 MARCH 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
DRUMMOND J:

1 I have had the advantage of reading the reasons in draft of Marshall and Finkelstein JJ.

2 I respectfully agree that the application of cl 676.211 of Sch 2 the Migration Regulations 1994 (Cth) to the facts of the particular case requires the decision-maker to take the staged approach described by Finkelstein J in his reasons and particularly in par [50].

3 The Migration Review Tribunal's ("the Tribunal") findings include the following:

"...The Tribunal finds that the visa applicant is a partner in Green Isle Films International and that he and his partner have engaged in film making since 1994. They are currently engaged in marketing their latest production. The Tribunal finds further that because the visa applicant was attending to his business activities in Australia, he did not wish to leave Australia in order to apply for a business visa off-shore. ... The Tribunal finds that the purpose of the application for a subclass 676 visa by the visa applicant is to apply for a business visa in order to develop and conduct a business activity."
4 These findings were made on the basis of the respondent's evidence which the Tribunal accepted. The respondent said that, prior to the commencement of his long battle for the subclass 676 visa the subject of the present proceedings and while he was lawfully in Australia and entitled to do so under the subclass 435 visa:

"I started a film production business with an Australian partner (Mr Sandith Samarasinghe) and we began plans for our first movie ..."
;.
5 He also said:

&
quot;It was not my intention to use the visitor visa [ie, the subclass 676 visa] to conduct any sort of business activities as this would have been illegal. The major purpose in applying for a subclass 676 visitor visa was to bridge the period between the expiry of my subclass 435 visa and the lodging of my business visa so that I would not become an unlawful non-citizen in Australia."
6 As Finkelstein J observes, the respondent's purpose for remaining in Australia was because Australia was a convenient place from which to apply for a long stay temporary business visa. But when seeking to determine whether cl 676.211 is satisfied, the respondent's purpose, so identified, cannot be divorced from its factual context, ie, from those facts which show what made Australia a convenient place for the respondent.

7 The evidence of the respondent, accepted by the Tribunal and reflected in its findings set out above, shows that he wanted to remain on-shore to apply here for a business visa that would permit him to remain in Australia and resume the same business he had previously started with his partner in Australia, but had to interrupt when his subclass 435 visa expired in July 1997. The Tribunal accepted that he did not intend to engage in any business activity while here under the subclass 676 visa now in question. But there was still a relationship between the respondent's purpose for remaining in Australia and that business. To want to remain in Australia to achieve that objective shows, in my opinion, that that relationship was so direct as to prevent the respondent from being able to satisfy the criterion in cl 676.211(a)(ii).

8 In my opinion, the Tribunal correctly applied that clause to its critical factual findings.

9 I would have allowed the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond .



Associate:

Dated: 27 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 812 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND:
SIVAGURU KANAPATHY SARAVANAN

RESPONDENT



JUDGES:
DRUMMOND, MARSHALL AND FINKELSTEIN JJ

DATE:
27 MARCH 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
MARSHALL J

10 This is an appeal from the judgment of a single judge of the Court ("the primary judge") delivered on 20 July 2001. The primary judge allowed an application by the respondent to review a decision of the Migration Review Tribunal ("the MRT") dated 6 December 2000. The MRT had affirmed a decision of a delegate of the appellant to refuse the respondent a Tourist (Short Stay) visa.

Factual background

11 The respondent is a citizen of Sri Lanka. He entered Australia on 6 March 1996 as the holder of a Tourist (Short Stay) visa, which permitted him to remain in Australia until 6 June 1996. On 2 July 1996, the respondent was granted a Student (Temporary) (Class TU) visa which was valid until 30 July 1998. On 31 October 1996, however, the student visa was cancelled after the respondent advised the appellant's department that he had ceased to be a student.

12 On 4 November 1996, the respondent was granted a Sri Lankan (Temporary) (Class TT) subclass 435 visa which expired on 31 July 1997. As the primary judge said at [4] of his reasons:

"This was a new visa subclass created on humanitarian grounds by the government as a result of the civil war in Sri Lanka."

13 On 31 July 1997, the respondent lodged an application for a Tourist (Short Stay) subclass 676 visa. In the covering letter forwarded with the application, the respondent's solicitors advised the appellant's department as follows:

"As the applicant seeks to remain in Australia as a visitor for a purpose other than a purpose related to business or medical treatment and has adequate funds for personal support during the period of visit, he is eligible to be granted a sub-class 676 tourist (short stay) visa."

14 On 1 August 1997, the application for the Tourist (Short Stay) visa was refused. That decision was set aside by the Migration Internal Review Office ("the MIRO") on 28 October 1997. The MIRO granted the respondent a Tourist (Short Stay) visa. However that visa expired on 30 October 1997, the same day that the respondent's solicitors were advised of the MIRO's decision.

15 On 31 October 1997, the respondent applied for a Business (Long Stay) subclass 457 visa. On 2 July 1998, a delegate of the appellant decided that the application for that visa was invalid, given that on the previous day the respondent had ceased to be the holder of a substantive visa. The holding of a substantive visa was a precondition for the grant of the Business (Long Stay) visa. The actions of the MIRO, in granting a visa which expired on the day of its granting, had effectively rendered compliance with that precondition to be impossible.

16 On 27 August 1998, the respondent applied for constitutional relief in the High Court of Australia in respect of the MIRO decision. On 13 April 1999, Hayne J made orders by consent, including the following:

* a writ of certiorari issue to quash the decision of the MIRO; and

* a writ of mandamus issue requiring the appellant to hear and determine the application for a Tourist (Short Stay) visa according to law.

17 On 10 July 2000, the respondent's application for a Tourist (Short Stay) visa, which was made on 31 July 1997, was refused by a delegate of the appellant.

18 Subsequently, the respondent lodged an application for review to the Migration Review Tribunal ("the MRT"). The MRT affirmed the decision of the delegate on 6 December 2000.

19 On 20 July 2001, Heerey J allowed the respondent's application for review of the MRT's decision. The judgment of Heerey J is the subject of the instant appeal.

The legislative requirements

20 At all material times, the Migration Regulations 1994 (Cth) ("the regulations") provided the criteria to be satisfied for the grant of a Tourist (Short Stay) visa at sub-clause 676 of schedule 2 thereto. The criteria material to this appeal are as follows:

"676.21 Criteria to be satisfied at time of application
676.211 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 a purpose other than a purpose related to business or medical treatment.

(b) either:

(i) has adequate funds, or access to adequate funds, for personal support during the period of the visit;

or

(ii) meets the requirements of subclause 676.221(4).

676.22 Criteria to be satisfied at time of decision

676.221 ...

(2) An applicant meets the requirements of this subclause if:

(a) the applicant continues to satisfy the criterion in clause 676.211; and

...

(c) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine ....

(4) An applicant meets the requirements of this subclause if:

(a) he or she is in Australia; and

(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and

(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and

(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and

(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and

(f) he or she satisfies public interest criterion 4005; and

(g) the applicant satisfies the Minister that the applicant's expressed intention only to visit Australia is genuine; and

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

The decision of the MRT

21 The MRT found that cl 676.211 of the regulations was not satisfied because the respondent, at the time of his application, sought to remain in Australia for a purpose related to business. At [18] of its statement of reasons and decision, the MRT said that:

"... the Tribunal finds that the intention of the visa applicant in applying for a subclass 676 visa was to "qualify [him] to apply for a business visa." It finds also that "it had always been his intention to apply for a temporary business visa as an independent executive to start his own movie business in Australia...". The Tribunal finds that the visa applicant is a partner in Green Isle Films International and that he and his partner have engaged in film making since 1994. They are currently engaged in marketing their latest production. The Tribunal finds further that because the visa applicant was attending to his business activities in Australia, he did not wish to leave Australia in order to apply for a business visa off-shore. The Tribunal accepts the evidence of Mr Samarasinghe that he has found the visa applicant to be of good character. The Tribunal finds that the purpose of the application for a subclass 676 visa by the visa applicant is to apply for a business visa in order to develop and conduct a business activity. The visa applicant's object, the result intended or sought, the end and aim in applying for a subclause 676 visa is to establish a relationship with something else, namely business, by enabling him to apply for a business visa which would enable him to then establish and conduct a business."
22 The MRT also found that the respondent did not intend a genuine visit, stating at [20] that:

"The visa applicant has not provided evidence of the fact that he intends a genuine visit other than he requires to be the holder of a subclass 676 visa in order that he may apply for a temporary business entry visa."
23 Finally, the MRT stated at [21] that it was:

"...unable to be satisfied that the intention of the visa applicant to visit Australia is genuine and therefore the visa applicant has failed to satisfy subclass 676.221(4)(h)."
24 On appeal, the appellant's counsel submitted that it appears that the reference by the MRT at [21] to cl 676.221(4)(h) was intended to be a reference to cl 676.221(2)(c). The respondent's counsel submitted that the reference to cl 676.221(4)(h) was intended to be a reference to cl 676.221(4)(g).

The reasoning of the primary judge

25 The primary judge disagreed with the MRT's interpretation of cl 676.211(a). At [22] and [23] of his reasons, his Honour said that:

"22 `Purpose' in cl 676.211(a) is speaking of what the visa applicant proposes to do during the period for which the visa is to be granted. Of course the applicant may have in mind another purpose as to what he or she wants to do after the end of the visa period but that must necessarily involve another visa - or perhaps naturalisation. That is not the relevant purpose with which s 676.211a) is concerned.
23 It may be true, as counsel for the Minister submitted, that activity which is preparatory to the establishment of a business, such as market research or raising finance, is "related" to that business. However in the present context the business must be one which is to be carried on during the period of the visa."


26 Further at [25], after noting the types of visa that may be held as a precondition to the grant of a Business (Long Stay) visa, the primary judge said that:

"It is possible that the drafters of the regulations had in mind people who apply for these visas with no thought of any subsequent purpose to be achieved in Australia after the end of the visa period and then, while they are in Australia, conceive the idea of applying for a Business (Long Stay) visa. However, the much likelier situation, and that which the regulations obviously contemplate, is that someone will come to Australia for a temporary period in the hope that they may apply for a subsequent visa later for another purpose, such as business."

The competing contentions on appeal

27 Counsel for the appellant submitted that the primary judge erred in his construction of cl 676.211(a)(ii) in that any expression of future intent was relevant to the determination of the respondent's purpose. Counsel for the appellant further submitted that the respondent's purpose was a question of fact to be determined by the MRT in determining the merits. Since the MRT had found that the only stated purpose of the respondent in applying for a Tourist (Short Stay) visa was to qualify for a business visa, such purpose being a purpose related to business, counsel submitted that the MRT correctly found that the respondent had failed to satisfy cl 676.211(a)(ii). It was also contended that the words "related to" revealed that an indirect relationship with business would suffice to prevent an applicant from qualifying under cl 676.211(a)(ii).

28 Further, it was put on behalf of the appellant that in any event, cl 676.221(2)(c) was not satisfied by the respondent at the time of the MRT's decision. It was submitted that the respondent did not have a genuine intention only to visit Australia, given that he intended to apply for a business visa to enable him to conduct business here. Reliance was placed on the judgment of Katz J in Ugochukwu v Minister for Immigration and Multicultural Affairs [2000] FCA 1602 in respect of a materially identical requirement in a Tourist (Long Stay) visa to that contained in cl 676.221(2)(c). Katz J said at [7] that:

"Given that par 686.221(2)(c) of Sch 2 to the Regulations requires the applicant to satisfy the Minister, at the time of decision, that the expressed intention of the applicant only to visit Australia "is" (not "was") genuine, the Minister's inquiry is into the present genuineness of the applicant's earlier expression of intention to the Minister; it is not into the genuineness of that expression of intention when made. In substance, what par 686.221(2)(c) of Sch 2 to the Regulations contemplates is an inquiry by the Minister into the question whether the applicant has a present intention, at the time of the Minister's decision on the visa application, only to visit Australia. I construe that inquiry by the Minister as being one into the question whether the applicant, at the time of the Minister's decision on the visa application, has a present intention to leave Australia at the end of the period for which the applicant has sought permission to stay in Australia. Unless the applicant satisfies the Minister that the applicant has that present intention, then the Minister must refuse the visa application."
29 Counsel for the respondent submitted that cl 676.211(a)(ii) contemplates a broad definition of "purpose", with certain limited exemptions or exclusions. It was contended that the primary judge was correct to conclude at [26] that cl 676.211(a)(ii) "does not require any particular purpose, only that the purpose is not `related to business or medical treatment'".

30 It was submitted that "purpose" should be construed as the stated object which a person subjectively desires to achieve; see Naumovska v Minister for Immigration and Ethnic Affairs (1982) 41 ALR 635 at 646-7. It was further submitted that an applicant for a visa may have several purposes for desiring to remain in Australia and as long as one of the purposes was of a type that entitled such applicant to a visa, and provided the applicant did not have a purpose that would disentitle them to the same visa, that would be sufficient.

31 It was further contended that the respondent did not seek to remain in Australia to conduct a business during the currency of his visitor's visa. It was put that he sought to remain for a purpose directly connected to the seeking of a business long stay visa, such a purpose not excluded by cl 676.211(a)(ii).

32 On the issue of "genuineness", counsel for the respondent submitted that the MRT did not venture beyond the question whether the requirement of the two limbs of cl 676.211 were met. Counsel submitted, as is noted at [24] above, that the reference to cl 676.221(4)(h) was intended to be a reference to cl 676.221(4)(g). In considering whether cl 676.211(b) was met, the MRT turned its mind to whether the respondent met the requirements of sub-clause 676.221(4) as is required by cl 676.211(b)(ii).

33 It was noted by counsel for the respondent that the MRT considered cl 676.211(b)(ii) and cl 676.221(4) without first considering whether cl 676.211(b)(i) had been met, that is, whether the respondent had adequate funds. Counsel submitted that in any event cl 676.221(4)(g) applied to persons who did not intend to overstay their visas and that the respondent was such a person.

34 Counsel for the respondent submitted that the MRT's finding that the respondent did not intend a genuine visit was based only on the respondent's honest declaration of his intention to apply for a business visa. It was contended that what the decision-maker must be satisfied of is that the expressed purpose for needing the visa must also be a temporary one, as distinct from the purpose of remaining in Australia.

35 Counsel for the respondent contended that Ugochukwu did not stand in the way of the acceptance of her submissions. She submitted that Katz J focussed on the genuineness of the intention to leave Australia at the end of a visa period and that here, the respondent had no intention to overstay the visa for which he had applied. As cl 676.211(b)(ii) is directed to the criteria to be satisfied at the time of the application, it is sufficient that the respondent had a genuine intention at that time not to overstay any visitors visa which he might be granted in the event that no further visa was obtained, including a business visa.

36 It may be implied from the submissions of counsel for the respondent that, in any event, cl 676.221(2)(c) was satisfied at the time of the decision. This was because the respondent's expressed intention was to remain in Australia to visit in preparation for an application for a business visa. It followed that the respondent, would during the currency of the visa, not engage in business and leave Australia at the expiry of the visa if he had not obtained a business visa by then.

Consideration

37 At the time of his application for a Tourist (Short Stay) visa the respondent sought to remain in Australia as a visitor. He did not "(seek) to visit Australia" as he was in Australia when he applied for the visa. The respondent's purpose in applying for the visa was to qualify him for a Business (Long Stay) visa. His sole purpose was related to achieving a particular migration status.

38 The respondent's purpose in seeking a Tourist (Short Stay) visa was for a purpose unrelated to medical treatment. Was the application for the visa made, however, for a purpose "other than a purpose related to business"? In my opinion it was so made.

39 It is not to the point that the respondent intended to use the attainment of a Tourist (Short Stay) visa as a stepping stone to an application for a Business (Long Stay) visa. In my view the primary judge was correct when he observed that the term "purpose" in cl 676.211(a) refers to "what the visa applicant proposes to do during the period for which the visa is to be granted". The respondent's longer term purpose of conducting a business in Australia is therefore beyond the reach of "the purpose" to which cl 676.211 is directed.

40 The respondent did not intend to conduct business during the term of his Tourist (Short Stay) visa. Therefore his purpose in seeking that visa was not for a purpose related to business. Examinations of authorities dealing with the concept of "related to" in its wider and narrower contexts are beside the point.

41 During the intended currency of his desired Tourist (Short Stay) visa the respondent had no desire to conduct himself in business or in any way related to business. His sole desire was to attain a migration status that would qualify him for another visa and such visa would subsist, if granted, beyond the life of the visa for which he had applied.

42 I agree with the submission of counsel for the respondent that the MRT failed to address the correct question raised by cl 676.21 in that it failed to turn its mind to the respondent's intention during the currency of the Tourist (Short Stay) visa for which he had applied.

43 Having failed to address the correct question concerning the criteria to be satisfied at the time of the application, the MRT compounded its error by failing to address the correct question concerning the criteria to be satisfied at the time of its decision. The MRT failed to turn its mind to cl 676.221(2) of the regulations. Had it done so it would have been required to consider whether the purpose held by the respondent at the time of his application remained his purpose at the time of the MRT's decision. The decision of the MRT does not show that it separately considered the respondent's intention as at the time of that decision; see cl 676.221(2)(a).

44 The reasons for decision of the MRT do not specifically reveal any consideration of whether the respondent complied with cl 676.221(2)(c). However, if cl 676.221(a) is satisfied (because of continuing satisfaction with cl 676.211) it is difficult to consider how cl 676.221(2)(c) would not be satisfied. The only distinguishing feature between the two provisions appears to be the use of the word genuine in cl 676.221(2)(c).

45 In my opinion, clause 676.221(2)(c) is satisfied if a visa applicant's intention not to overstay the visitor's visa is genuine. If it had addressed the correct question there would have been no basis for the MRT to find that the respondent's intention not to overstay the visa lacked genuineness. Indeed the MRT found the respondent to be of good character. To the extent that the MRT attempted to address the correct question it was distracted by its impermissible search for the purpose of the respondent beyond the life of the visa for which application had been made.

Disposition

46 For the above reasons, I would dismiss the appeal and order the Minister to pay the respondent's costs of the appeal.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall



Associate:

Dated: 27 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V812 of 2001




On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

AND:
SIVAGURU SARAVANAN

Respondent

JUDGES:
DRUMMOND, MARSHALL & FINKELSTEIN JJ

DATE OF ORDER:
27 MARCH 2002

WHERE MADE:
MELBOURNE




REASONS FOR JUDGMENT
FINKELSTEIN J:

47 Mr Saravanan has been in Australia since 1996. He has established a film production business with an Australian partner. Mr Saravanan wishes to remain in Australia to develop his business. However, his visa to remain in has Australia has expired and he wishes to obtain a Business (Long Stay) visa, which would enable him to remain here for up to four years. Mr Saravanan can apply for a long stay business visa if he leaves Australia. But if he has a Tourist (Short Stay) visa, he could apply for a long stay business visa without leaving the country. So Mr Saravanan has applied for a tourist visa. This appeal is principally concerned with whether Mr Saravanan has satisfied one of the requirements that a person seeking such a visa must satisfy, namely that the applicant "seeks to... remain in Australia as a visitor ... for a purpose other than a purpose related to business": Migration Regulations 1994 (Cth), sch 2, cl 676.211.

48 In a loose sense the question to be answered is whether a person who wishes to obtain a tourist visa so that he can make application in Australia for a long stay business visa so as to carry on business in Australia, "seeks to... remain in Australia as a visitor ... for a purpose related to business". The proper approach to the issue is to enquire how direct must the connection be between "[the purpose for] seeking to remain in Australia" and "business". Must there be a relatively direct connection, or is it sufficient that there is some connection, however remote and however indirect. Put another way, in this case the question is how close must the relationship be between the reason the respondent wishes to remain in Australia and the business the respondent seeks to conduct here in the future.

49 Finding the answer to this question is not easy. Reference to cases that have considered the meaning of "related to" do not provide much assistance. Some of the authorities have held that the relationship that is required is close. In others, any connection of a factual character has proved sufficient.

50 I propose to resolve the issue in the following way. First, it is necessary to ascertain the precise purpose for which the respondent wishes to remain in Australia on a tourist visa. The next step is to see whether that purpose is in any way "related to" business. Finally, there is the need to decide whether that relationship, if there be one, is sufficiently close to satisfy the objects of the criterion.

51 It will be observed that in framing the issues in the way that I have, it is not necessary to investigate directly the purpose for which the respondent seeks to obtain the tourist visa. That seems to me to be an irrelevant line of enquiry and one that would lead to error. The reason is that cl 676.211 directs attention to the relationship (if any) between the visa applicant's purpose for remaining in Australia ("seeks to... remain in Australia ... for a purpose") and "business", and not the relationship between the purpose for obtaining a tourist visa and "business".

52 According to the findings of the tribunal, the only reason the respondent wished to remain in Australia was to apply for a long stay business visa. Put another way, the respondent did not wish to leave Australia in order to apply for that visa. I take the finding to mean that it was more convenient for the respondent to remain here than it was for him to go overseas to apply for a long stay business visa for a variety of reasons including the dislocation of having to leave Australia unnecessarily, the cost of travelling out of the country and the inutility of doing so if he could obtain a tourist visa. So much is just plain common sense.

53 Having identified the respondent's purpose for remaining in Australia, the next question is whether that purpose is "related to" business. Indirectly it is related because there is some connection between the respondent's immediate need to obtain a tourist visa and his ultimate intention to operate a business in Australia. But does this indirect relationship bring the respondent within the operation of cl 676.211? I propose to illustrate the approach that should be taken by reference to a more extreme example of an indirect relationship to business. Let it be assumed, as here, that a person is contemplating the establishment of a business in Australia and requires a long stay business visa for that purpose. Let it also be assumed that before the particular business can be established, the person must undertake a tertiary course at an appropriate institution of which there are several in Australia. Finally, let it be assumed that the person wishes to visit Australia for the purpose of selecting the best institution for him to undertake that course. The person applies for a tourist visa to visit Australia for the sole purpose of selecting the appropriate institution. Is that purpose "related to business". That there is some connection cannot be denied. If the person obtains a tourist visa he will visit Australia to select the institution that best suits him. He will then undertake the course that will qualify him for the business he hopes to conduct in Australia. In due course he may come to Australia to operate that business. Is the purpose "related to business" for the purpose of cl 676.211. I think not. The relationship is indirect and it is far too remote.

54 For much the same reason it seems to me that the relationship between the respondent's purpose of remaining in Australia (this is a convenient place from which to apply for a long stay business visa) is not directly connected, or reasonably directly connected, with business. First, the respondent's purpose is not related to an actual business. The non-existence of a business cannot be decisive, for cl 676.211 speaks of a purpose "related to business" and not a purpose "related to a business". So there will be cases where the purpose can be connected to business, though not an existing business. But nevertheless the absence of a business with which to form that connection is relevant in determining whether a purpose is "related to business." Second, the evidence before the tribunal, which it did not reject, was that during the currency of the tourist visa the respondent would not engage in any business activity. He has sufficient resources to support himself without the need for additional income. Third, while it is true that he has expressed an intention to do so, the respondent may never actually conduct business in Australia, nor be involved in any other person's business.

55 There is a subsidiary question raised by the appeal. It is whether the respondent's expressed intention to remain in Australia as a visitor is "genuine". It is suggested that this is another criterion for the grant of a tourist visa which the respondent must satisfy at the time of the decision. When read strictly, cl 676.221(2)(c) does not impose this requirement unless there is some rearrangement of the words (the criterion is expressed to apply only to an applicant who wishes "to visit" Australia and not one who wishes "to remain" in Australia). I will assume, without deciding, that a rearrangement is possible. I think the requirement means no more than this: the visa applicant means what he says when he explains why he wishes to remain in Australia as a visitor for a short period. The facts as found by the tribunal show that the respondent is "genuine" in this sense.

56 I have reached the same destination as the trial judge, but have travelled by a very different route. Nevertheless, in my view the appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.



Associate:

Dated: 27 March 2002

Counsel for the Appellant:
Mr W Mosley




Solicitor for the Appellant:
Australian Government Solicitor




Counsel for the Respondent:
Ms D Mortimer




Solicitor for the Respondent:
Erskine Rodan & Associates




Date of Hearing:
1 March 2002




Date of Judgment:
27 March 2002

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