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1 The issue for determination in this appeal is whether cl 686.221(2)(g)(ii) in subclass 686 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), which deals with the Tourist (Long Stay) visa, should be read down so that it can be satisfied by a visa applicant who intends, while in Australia, to engage in studies or training, but for a period of less than three months.

2 The legislative setting and the factual circumstances out of which this appeal arises are set out in the reasons of Mansfield and Emmett JJ. Though I respectfully agree with much of the analysis to which Mansfield J subjects the regulatory scheme, I do not agree with the conclusion their Honours have reached.

Desai v Minister for Immigration & Multicultural Affairs [2002] FCAFC 76 (2

Desai v Minister for Immigration & Multicultural Affairs [2002] FCAFC 76 (21 March 2002); [2002] FCA 320
Last Updated: 9 May 2002


Desai v Minister for Immigration & Multicultural Affairs [2002] FCAFC 76
Desai v Minister for Immigration & Multicultural Affairs [2002] FCA 320



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
Desai v Minister for Immigration & Multicultural Affairs [2002] FCA 320


VIRAL HASMUKHARI DESAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 445 OF 2001

DRUMMOND, MANSFIELD AND EMMETT JJ

21 MARCH 2002

BRISBANE (HEARD IN PERTH) (VIA VIDEO CONFERENCE)

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W 445 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VIRAL HASMUKHARI DESAI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD AND EMMETT JJ

DATE OF ORDER:
21 MARCH 2002

WHERE MADE:
BRISBANE (HEARD IN PERTH) (VIA VIDEO CONFERENCE)



THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

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 445 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VIRAL HASMUKHARI DESAI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD AND EMMETT JJ

DATE:
21 MARCH 2002

PLACE:
BRISBANE (HEARD IN PERTH) (VIA VIDEO CONFERENCE)




REASONS FOR JUDGMENT
DRUMMOND J:

1 The issue for determination in this appeal is whether cl 686.221(2)(g)(ii) in subclass 686 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), which deals with the Tourist (Long Stay) visa, should be read down so that it can be satisfied by a visa applicant who intends, while in Australia, to engage in studies or training, but for a period of less than three months.

2 The legislative setting and the factual circumstances out of which this appeal arises are set out in the reasons of Mansfield and Emmett JJ. Though I respectfully agree with much of the analysis to which Mansfield J subjects the regulatory scheme, I do not agree with the conclusion their Honours have reached.

3 The problem for resolution can be highlighted by incorporating in full in cl 686.221(2)(g) the conditions to which cl 686.612 subjects a visa of the kind sought by the applicant. So expanded, that sub-clause is as follows:

4 (g) If the application is made in Australia:

(i) ...; and

(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 the following conditions:

* The holder must not engage in work in Australia (condition 8101)

* While in Australia the holder must not engage, for more than three months, in any studies or training (condition 8201); and

* If the holder is over sixteen, [is from a particular country] and intends to study in a class-room environment for a period greater than four weeks - the holder must, before commencing that study, pass a chest X-ray examination carried out by a medical practitioner who is qualified as a radiologist. (condition 8205)

5 The submission by counsel for the Minister was simple. The expression in cl 686.221(2)(g)(ii), "any studies or training", is an ordinary English expression with a clear meaning: the primary rule of construction, so the Minister says, is that the provision means what it says. The fact that a Tourist (Long Stay) visa, if granted, would be subject to a condition permitting the holder to engage in "any studies or training" for up to three months is no reason for reading down this same expression in cl 686.221(2)(g)(ii). The Minister does not suggest that the expression "any studies or training" in condition 8201 has any different meaning from the same ordinary English meaning it has in cl 686.221(2)(g)(ii). He says that the conflict between the two provisions is to be ignored and effect given only to cl 686.221(2)(g)(ii) where an on-shore applicant seeks the visa to engage in a short course of study: that provision is the first of sub-pars (ii) and (iii) that the Minister has to consider and once the Minister sees that the applicant cannot satisfy the first of these two criteria, it is unnecessary for him to consider the second.

6 I am unable to accept that the wording in cl 686.221(2)(g)(ii) is too intractable to permit a court of construction to read down the expression "any studies or training" in that clause.

7 As Mansfield J observes, the approach to construction contended for by the Minister can be said to produce an anomalous result. Criterion 686.221(2)(g)(ii) requires the applicant to satisfy the Minister at the time the Minister has to make his decision that the visit is not for the purpose of undertaking or continuing "any studies or training". Yet criterion 686.221(2)(g)(iii) will be satisfied where the applicant satisfies the Minister that that is indeed the purpose of the visit. If the phrase "any studies or training" in condition 8201 has the same ordinary English meaning which the identical phrase carries in cl 686.221(2)(g)(ii), sub-par (ii) collides with sub-par (iii): if the first is allowed to control the second, sub-par (iii) can have no operative effect in so far as it incorporates conditions 8201 and 8205.

8 It is true that condition 8201 (and condition 8205) have work to do in so far as they apply to a Tourist (Long Stay) visa sought by an applicant outside Australia and in so far as they apply to each of the other classes of visa of which they are declared to be conditions. But, on the Minister's interpretation, neither of conditions 8201 or 8205 will ever have any work to do, in so far as they are expressly incorporated in cl 682.221(2)(g)(iii) and so apply to a Tourist (Long Stay) visa sought by an applicant in Australia. On the construction proposed by the Minister, the draftsman of the legislative scheme engaged in an entirely pointless exercise in directing, by cl 686.221(2)(g)(iii), that at the time of making a decision on the visa application by an on-shore applicant, the Minister must determine whether he was satisfied that the applicant then intended to comply with conditions 8201 and, in an appropriate case, 8205. That is a powerful reason for rejecting the Minister's construction.

9 As Gummow J said (Hill and Cooper JJ agreeing) in Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at 63:

"t being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result."
10 It is true that cl 686.221(2)(g)(iii) is confined to on-shore applications for a Tourist (Long Stay) visa. But the improbability of the draftsman having intended that cl 686.221(2)(g)(iii) will have effect only in so far as it incorporates condition 8101, but no operative effect in so far as it also incorporates conditions 8201 and 8205, is emphasised when it is realised that one of the objectives of the legislative scheme, contained in the provisions of the Migration Act 1958 (Cth) ("the Act") dealing with the grant of visas and expressed in, eg, s 65 of the Act, is to regulate their grant by prescribing detailed criteria which, if satisfied, will assure the applicant of the visa. That the legislative scheme is structured so as to cast on the Minister an obligation to grant a Tourist (Long Stay) visa to an on-shore applicant if, among others, the two criteria in sub-pars (ii) and (iii) of cl 686.221(2)(g) are met, makes it the more difficult to deny that the draftsman's assumption is that it is possible, in a given case, for an on-shore applicant for such a visa to satisfy both criteria.

11 The intention of the draftsman as to the requirements for a Tourist (Long Stay) visa is pretty clear. Conditions 8201 and 8205 both indicate that the intention was to make a Tourist (Long Stay) visa available to a person whose purpose in visiting Australia was to engage in study (albeit on a short term basis because of condition 8201). So does the definition of "tourism" in reg 1.03. That definition includes "participation in activities of a recreational nature including ... informal study courses". Mansfield J's view is that it is necessary to have regard to this definition in seeking the proper interpretation of the provisions governing the grant of subclass 686 - Tourist (Long Stay) visas. Clause 686.1, "Interpretation", says as much.

12 His Honour points out that the Regulations provide for visits to Australia for tourism purposes, including informal study courses under each of the Tourist (Short Stay) visa, the Tourist (Long Stay) visa and the Electronic Travel Authority (Visitor) visa. He observes that the length of the informal study course permitted under each visa is controlled by condition 8201, to which (in the case of the Tourist (Long Stay) visa) that visa is subject by force of cl 686.6. Condition 8205 imposes another condition on the holder of a Tourist (Long Stay) visa that only operates if the particular holder intends to engage in study here. Mansfield J says that, save only in the case of an applicant for a Tourist (Long Stay) visa who happens to be in Australia when the application is made, the declared intention of a visa applicant when applying for any one of these three classes of visa to undertake a short period of studies or training whilst in Australia not only provides no reason to decline to grant the visa, but is positively consistent with what the visa is intended to cater for.

13 His Honour refers to the difficulty in identifying any rationale why the regulatory scheme would impose only upon an applicant within Australia for a Tourist (Long Stay) visa, and not on an off-shore applicant for that same visa or on an applicant for either of the other two tourist visas, the criterion that the visa may not be granted if such an applicant wishes to undertake a short course of study; he refers also to the difficulty in identifying any rationale for that criterion which precludes the grant of a Tourist (Long Stay) visa to an on-shore applicant but permits that same applicant to retain that visa, provided he only forms the intention to undertake such studies after the grant of the visa.

14 Counsel for the Minister could suggest none, save only that a possible reason for cl 686.221(2)(g)(ii) may be to prevent a person who has come into Australia on a short term visa from thereafter obtaining a series of tourist visas by undertaking a series of short courses of study. But that potential abuse is the subject of the control contained in cl 686.221(2)(g)(v): one of the criteria which must be satisfied at the time of the decision on an application made in Australia for a Tourist (Long Stay) visa is that the grant of the visa must not result in the applicant being authorised to stay in Australia for more than twelve consecutive months as the holder of one or more visitor visas or a subclass 417 (Working Holiday) visa, unless "exceptional circumstances exist for the grant of the visa".

15 Counsel for the Minister maintains that it is significant that cl 686.221(2)(g) only applies to an on-shore applicant for a Tourist (Long Stay) visa. But he cannot explain why.

16 All the identifiable indications in the regulatory scheme are that the draftsman's intent was to make a Tourist (Long Stay) visa available to people who want to come to Australia or to remain in Australia for the purpose, among others, of undertaking a short course of study or training.

17 To give the expression "any studies or training" in criterion (ii) the unqualified, ordinary English meaning proposed by the Minister thus frustrates what appears to be the clear legislative intent of the scheme. To do that results in the kind of absurdity which justifies a court of construction departing from the prima facie ordinary English meaning of the phrase in criterion (ii). But there are other, more fundamental rules of statutory interpretation that require that departure.

18 They are conveniently gathered together in the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined `by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that `the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court `to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was `a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'."

19 These principles were mentioned in Ross v The Queen (1979) 141 CLR 432 where reference was also made to another established principle of interpretation that is of present relevance. Whether a person convicted summarily of an indictable offence was entitled to appeal to the Court of Criminal Appeal depended on s 673 of the Queensland Criminal Code; it, however, conflicted with s 659. The leading judgment was given by Gibbs J. His Honour said at 440:

"If these words [in s 659] were given the fullest operation of which they are capable, they would render the provisions of s 673 entirely nugatory ... There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s 659 to be given a construction that will render them harmonious with those of s 673, if that is possible. If the two sections could not both be given effect, s 673, being the later enactment, would prevail." (emphasis added)
20 Beaumont J has described this principle of interpretation as the rule of last resort: see Lyons v Registrar of Trade Marks (1983) 50 ALR 496 at 508.

21 The comments of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 are also on point:

"However, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context ... Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, not merely at some later stage when ambiguity might be thought to arise ... The instances of general words in a statute being so held to be constrained by their context are legion." (emphasis added)
22 If the Court gives the expression "any studies or training" in cl 686.221(2)(g)(ii) the unqualified ordinary English meaning contended for by the Minister, it would be ignoring these rules of interpretation. That provision cannot be read in isolation from its context, a context which includes sub-par (iii) of the same paragraph. The Court must construe sub-pars (ii) and (iii) of cl 686.221(2)(g) so as to give each an effective area of operation harmonious with the other, so far as that is possible. The conflict between sub-pars (ii) and (iii) must be resolved, so far as possible, by reconciling the provisions to give effect to the legislative intent. Finally, if there is an irreconcilable conflict between the two provisions, sub-par (iii), as the later enactment, should prevail over sub-par (ii).

23 The first three of these rules of interpretation, in my opinion, require cl 686.221(2)(g)(ii) to be read as if the phrase "any studies or training" were qualified by the words "other than those which the applicant could engage in without infringing a condition of the visa".

24 It is unnecessary to engage in radical verbal surgery to arrive at this construction of cl 686.221(2)(g). There being ex facie conflict between the two provisions in cl 686.221(2)(g), if sub-par (ii) were prefaced by the words "Subject to sub-paragraph (iii)", it would be clear that the conflict was to be avoided by allowing sub-par (iii) to govern sub-par (ii) to the extent necessary to remove the conflict: see C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911 and Harding v Coburn [1976] 2 NZLR 577 at 582. It may even be unnecessary to read sub-par (ii) as if the words "Subject to sub-paragraph (iii)" actually appeared in it, since the obligation of a court of construction to seek the meaning of each provision of an enactment by reading each in its entire context in an attempt to give every provision an operative effect harmonious with the entire enactment exists even in the absence of express prefatory words such as "subject to this Act": see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 176.

25 To read down the phrase "any studies or training" in cl 686.221(2)(g)(ii) in this way thus does not involve breaching any proper approach to construction, but rather to engage in the entirely orthodox exercise of bringing that provision into harmony with sub-par (iii) so that each provision will have an operative effect. As Mason J observed in the Lake City Freighters case: "The instances of general words in a statute being so held to be constrained by their context are legion".

26 Even if all other approaches to resolving the conflict between the two provisions were thought to be inappropriate, the rule of last resort should be applied, viz, sub-par (iii) as the later enactment should control the interpretation of the conflicting sub-par (ii).

27 The Minister cannot, on any view, stop at sub-par (ii): he must also consider sub-par (iii) before he can decide whether to grant or refuse the visa sought by the appellant.

28 It is true that there is also a well-established presumption that the same word or expression repeatedly used in an enactment has the same meaning. This presumption cannot justify reading cl 686.221(2)(g)(ii) as intractable. The presumption is highly qualified. As Mason J (Aiken and Wilson JJ agreeing) said in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15:

"... [T]here is a presumption that in a statute the same word is always used with the same meaning, especially when it is used more than once in the same section. However, it is now settled that presumption readily yields to the context and, as Gibbs J noted in McGraw-Hinds (Aust) Pty Ltd v Smith: `It is well recognized that a word may be used in two different senses in the same section of the one Act'."
29 It was there held that the word "due" had a different meaning in one sub-paragraph of a section of an Act from its meaning in another sub-paragraph of that same section. The importance of reading both sub-pars (ii) and (iii) so that each will have an area of operation is ample justification for requiring the former to readily yield in its meaning to the latter.

30 The legislative scheme regulating the grant of visas is a very detailed and complex one. It has, moreover, been amended from time to time. It is therefore unsurprising that the draftsman may not have been able to maintain clarity and consistency throughout. The learned primary judge remarked upon the verbosity and lack of clarity in cl 686.211(a), which could have been much more simply drafted as:

"The applicant seeks to visit Australia, or remain in Australia as a visitor for a purpose other than a purpose related to business or medical treatment."
31 The conflict between cll 686.221(2)(g)(ii) and (iii) that has thrown up this appeal is but another example of the difficulties faced by the draftsman of a complex legislative scheme like this in maintaining internal consistency. This is another consideration militating against adhering to the presumption of consistency (and so treating sub-par (iii) as nugatory). See Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96 at 101 - 102.

32 I would therefore allow the appeal because the learned primary judge and the Migration Review Tribunal incorrectly interpreted the provision of cl 686.221(2)(g).

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.



Associate:

Dated: 21 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W.445 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VIRAL HASMUKHARI DESAI

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE:
21 MARCH 2002

PLACE:
BRISBANE (HEARD IN PERTH) (VIA VIDEO CONFERENCE)




REASONS FOR JUDGMENT
MANSFIELD J:

INTRODUCTION

33 The appellant entered Australia on 1 April 2000 on a Short Stay (Visitor) (Class TR) subclass 676 visa, granted under the Migration Act 1958 (Cth) (the Act). The subclass 676 visa is called a Tourist (Short Stay) Visa. That visa enabled the appellant to stay in Australia for one month.

34 By application dated 27 April 2000, and apparently received by the respondent on 1 May 2000, the appellant sought an extension of the time within which he could remain in Australia for a further five months to 1 October 2000. He did so by applying for a Long Stay (Visitor) (Class TN) subclass 686 visa. The subclass is called a Tourist (Long Stay) Visa. That application was supported by a submission from his migration agent dated 28 April 2000 which said that the applicant:

"... wishes to undertake a short English course (as he is able to on such a visa) and look at study options here with a view to returning to Australia as a full fee paying student in the year 2001 ... He is also to visit friends here who are permanently resident and hopes to travel to Sydney and Melbourne after completing the course for sight seeing purposes."
The enclosures with that document included "evidence of enrolment in a short term English course", being a letter from West Coast International Language Academy dated 26 April 2000 which certifies that the appellant:

"... has enrolled to study part-time (10 hours per week) at West Coast International Language Academy for a period of 10 weeks. He commenced study on 18 April 2000."
On the basis of the certificate from West Coast International Language Academy, the appellant would have completed his part-time study, apparently to improve his English, on about 1 July 2000, leaving about three months of the period for which he sought the visa for other purposes.

35 On 12 May 2000 a delegate of the respondent refused to grant the Tourist (Long Stay) Visa. The delegate's decision to refuse that visa was because the appellant had stated on his application that he wished to undertake a short-term English course, and that, therefore, he did not satisfy the criterion specified in cl 686.221(2)(g)(ii) of Schedule 2 to the Regulations. Clauses 686.221(1) and (2) specify criteria to be met at the time of the decision. They relevantly provide:

"(1) The applicant meets the requirements of sub-clause (2), (3) or (4).
(2) An applicant meets the requirements of this subclause if:

(a) the applicant continues to satisfy the criterion in clause 686.211; and

...

(g) if the application is made in Australia:

(i) the applicant continues to satisfy the criterion in paragraph 686.213(b); and

(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."

36 The appellant sought review of that decision by the Migration Review Tribunal (the Tribunal). On 7 May 2001, the Tribunal affirmed the decision of the delegate of the respondent to refuse to grant to the applicant the visa which he sought. The Tribunal recorded that the appellant said he now wishes to pursue a post-graduate degree in business administration and had been to the Edith Cowan University to inquire about the MBA program.

37 Before the Tribunal, the appellant's migration adviser pointed out that the appellant did not merely intend to undertake or complete the 10 week short English course, but also wished to look at study options with a view to returning to Australia, and also wished to visit friends permanently resident in Australia. He commented:

"Therefore his study course is in point of fact incidental to this request for an extension of the visa as he merely wanted to `test the waters' in relation to his study options. Moreover he is allowed at law to undertake a short course. Surely an applicant of this nature should be given the benefit of the doubt in relation to such a request."
On 5 March 2001, the migration agent repeated those matters. He said that the appellant wanted to undertake a short English course before he decided to apply in India for a student visa.

38 Following the decision of the Tribunal, the appellant sought judicial review by the Court. On 24 August 2001, a judge of the Court dismissed that application. This appeal is from that decision.

THE JUDGMENT AT FIRST INSTANCE

39 It is not necessary on this appeal to refer at any length to the Tribunal's reasons. That is because, at first instance, counsel for the respondent did not seek to support the reasoning of the Tribunal in relation to the proper application of the "initial gateway" imposed by cl 686.211 of Schedule 2 to the Regulations. It specifies criteria to be satisfied at the time of the application. By reason of cl 686.221(2)(a), those criteria must also continue to be met at the time of the decision. Clause 686.211 relevantly provides:

"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;"

In short, the learned judge at first instance took the view that the Tribunal failed to appreciate that the focus of cl 686.211(a) is on the character of the appellant's reason for coming to Australia. The criterion to be satisfied is that that character be "as a visitor". As his Honour remarked, the language of cl 686.211(a) makes it clear that a person could be characterised as a visitor even if that person did not come to Australia for the purpose of visiting an Australian citizen who is a relative, provided the purpose of the visit was not related to business or medical treatment. The focus is on the applicant seeking to "visit" rather than to remain within Australia, and not upon the specific purpose of the visit. His Honour remarked (at [6]):

"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."
40 His Honour regarded the Tribunal as having erred by not recognising that focus so that it did not properly apply that criterion. The Tribunal, in addressing the further criterion imposed by cl 686.221(2)(c), namely that the appellant satisfy the Tribunal that the expressed intention of the appellant only to visit Australia is "genuine", was found to have made the same error. His Honour concluded that the Tribunal erroneously looked to the purpose of the visit, rather than whether the appellant intended "only to visit" Australia rather than endeavour to remain in Australia long term. As his Honour said, despite the way the Tribunal approached that problem, the reference to "visit" in that sub-clause is used in the same sense as it is used in cl 686.211, namely " ... 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, and not to stay, is a genuine one. As noted, it is not necessary to review that aspect of his Honour's decision, as the respondent on this appeal continues to acknowledge legal error on the part of the Tribunal.

41 The learned judge at first instance, however, declined to set aside the decision of the Tribunal. He considered that it would be futile to remit the matter to the Tribunal for further consideration as its decision would, on any view, be the same. His Honour took the view that the appellant could not overcome the criteria to be satisfied at the time of the decision specified in clause 686.221(1) and (2)(g)(ii) because, on any view of the matter, the Tribunal would not be satisfied that the further period of stay in Australia was not sought for the purpose of "commencing, continuing or completing any studies or training". He said that the English course fell within the language of cl 686.221(2)(g)(ii) because the word "studies" in that sub-clause is used in its ordinary sense. He regarded the wording of that sub-clause as

"... so intractable that there is no conclusion open to me other than that the course [proposed to be studied by the appellant] should be found to fall within the excluded purpose. ."
His Honour said that he reached that conclusion "not without some difficulty".

THE CONTENTIONS

42 The appellant contended at first instance, and on this appeal by adopting his earlier contentions, that the wording of cl 686.221(2)(g)(ii) is not intractable. The arguments advanced on this appeal are the same as those advanced at first instance, namely that the exclusionary provision in that sub-clause should be construed in the context firstly of the definition of "tourism" in reg 1.03, and secondly in the light of condition 8201, which imposes on the holder of the visa by reason of cl 686.612 the condition that the visa holder not engage, for more than three months, "in any studies or training". Thus, it is argued, the apparently clear blanket prohibition on the extension granting of a Tourist (Long Stay) Visa where an intention of the visa applicant is to commence, continue or complete studies or training should be read down to permit short-term studies or studies of a recreational nature.

43 As to those arguments the judge at first instance said:

"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."
CONSIDERATION

44 Regulation 2.01 prescribes the classes of visas for the purposes of s 31 of the Act . They are set out in Schedule 1, including the classes Tourist (Long Stay) (subclass 686) and Tourist (Short Stay) (subclass 676). Regulation 1.03 defines "tourism" as follows:

"Tourism means participation in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel."
45 Given the identification of the two classes of tourist visas prescribed in Schedule 1 of the Regulations, it is appropriate in my view to regard that definition as applicable to those classes of visa. The word "tourism" otherwise appears in the Regulations only in Schedule 2 in relation to the subclass 976 Electronic Travel Authority (Visitor) Visa or the Electronic Travel Authority (Class UD) Visa class and in regulation 2.43 in relation to that visa. That class of visa applies to "ETA - eligible passport" holders who seek long or short term temporary entry to Australia for business purposes (subclass 956 and 977) or who seek temporary entry to Australia for tourism purposes (subclass 976). The subclass 976 visa permits multiple entry to Australia over a 12 month period, provided each visit does not exceed three months. It is called the Electronic Travel Authority (Visitor) Visa. Regulation 1.11B defines an "ETA - eligible passport" as one so gazetted. It is apparent that that class of visa is intended to facilitate business or tourist visits to Australia from certain countries, by the process of recognising passports from such countries as ETA - eligible passports. Regulation 2.43 prescribes grounds for cancellation of visas under s 116 of the Act. Regulation 2.43(1)(j) in relation to the Tourist (Short Stay) Visa and the Tourist (Long Stay) Visa permits cancellation if the respondent is satisfied that the intention only to visit Australia for the purpose expressed did not exist or no longer exists. As noted above, one such purpose is clearly for tourism. Regulation 2.43(1)(k) in relation to the Electronic Travel Authority (Visitor) Visa permits cancellation of that visa if the respondent is satisfied that the intention only to visit Australia for tourism purposes did not exist or no longer exists. In my view, the Tourist (Short Stay) Visa and the Tourist (Long Stay) Visa are each intended to accommodate visits, inter alia, for tourism purposes from countries whose passports are not ETA-eligible passports, to complement those who make tourist visit under the Electronic Travel Authority (Visitor) Visa. Counsel for the respondent did not contend to the contrary.

46 The Regulations therefore provide for visits to Australia under those three subclasses of visa for tourism purposes, including (by reason of the definition of "tourism") informal study courses. The length of such informal study courses is controlled by condition 8201, which applies in respect of each of those three subclasses of visa. It provides:

"While in Australia, the holder must not engage, for more than three months, in any studies or training."
47 Hence, with one exception noted below, the declared intention of a visa applicant when applying for one of those three visas to undertake studies or training whilst in Australia not only provides no reason to decline to grant the visa, but is positively consistent with what the visa is intended to cater for. Moreover, counsel for the respondent did not identify any class or subclass of visa within the schedules to the Regulations which more aptly accommodates short term informal courses of study by a tourist.

48 The one exception appears to arise in the case of an application made in Australia for a Tourist (Long Stay) Visa. Both that visa and the Tourist (Short Stay) Visa may be applied for outside Australia or in Australia. In each case, if the application is made outside Australia, and in the case of an application within Australia for a Tourist (Short Stay) Visa, an intention to undertake a short term course of study is a purpose consistent with the criteria for the grant of the visa. It is only in the case of an application made within Australia for a Tourist (Long Stay) Visa that that does not appear to be the case. That is because of the criterion in cl 686.221(2)(g)(ii).

49 It is hard to perceive any rationale for the regulations imposing only upon an applicant within Australia for a Tourist (Long Stay) Visa the criterion that the visa may not be granted if the applicant for that visa wishes to undertake a short course of informal study. Cultural tourism, including the undertaking of short courses of study, is now an accepted aspect of tourist activity. It is also hard to perceive any rationale for a criterion which precludes the grant of that visa in such circumstances, when the visa accommodates an intention to undertake such studies if that intention is formed at any time after the grant of the visa, provided of course that condition 8201 is complied with. Nevertheless, the respondent contends that cl 686.221(2)(g)(ii) is clear in its effect.

50 In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 McHugh JA said:

"A court cannot depart from the grammatical meaning of a provision because that meaning produces anomalies or injustices where no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, 320 and Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 234-235, 237, 238. If the grammatical meaning does give rise to an injustice or anomaly, however, a real doubt will usually arise as to whether Parliament intended the grammatical meaning to prevail: cf Cooper Brookes (at 320). As Cardozo J said in Re Rouss 116 NE 782 at 785 (1917): "Consequences cannot alter statutes, but may help to fix their meaning". A resulting anomaly or injustice is not itself, however, a ground for departing from the grammatical meaning. Equally the natural and ordinary grammatical meaning of the provision is not decisive."
51 In my view, in construing cl 686.221(2)(g)(ii) of the Schedule to the Regulations, it is necessary so far as appropriate to recognise that the definition of "tourism" is applicable to identify one of the intended purposes of the Tourist (Long Stay) Visa, and that condition 8201 is imposed upon a holder of that visa. Clause 688.221(2)(g)(ii) should be read not in isolation, but as part of the Regulations applicable to the Tourist (Long Stay) Visa and of the Regulations as a whole: Metropolitan Gas Co. v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455.

52 The term "studies or training" which appears in clause 686.221(2)(g)(ii) and in condition 8201, is not defined. Nor is the expression "informal study courses" in the definition of "tourism". It is of course a fundamental starting point that in the Regulations the same meaning should be given to the same words wherever they appear: see e.g. per Mason J in Register of Titles (WA) v Franzon (1976) 50 ALJR 4 at 6. However, as Gibbs ACJ said in McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 24 ALR 175 at 178:

"The rule that the same words which occur in different parts of a statute have the same meaning is one which `must yield to the requirements of the context': Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667 at 685; it is `only a presumption': Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135 at 159."
53 See also the discussion by Yeldham J in Farmer v Murphy (1986) 67 ALR 114 at 121.

54 Despite the considerations to which I have referred, condition 8201 can apply to a Tourist (Long Stay) Visa granted to an applicant outside Australia. It is not therefore otiose in its general application to that visa. Moreover, despite the apparent tension between the underlying purpose of the Tourist (Long Stay) Visa to accommodate "tourism" as defined, and the criterion imposed by cl 686.221(2)(g)(ii) upon the grant of that visa to a person within Australia, the wording of that clause is clear. The words "studies or training" are ordinary English words, and are used both in that clause and in condition 8201. The decision-maker has taken the view that they apply to the particular short-term English course which the appellant was undertaking at the time of the application for the visa. There are considerations which suggest that that view produces an anomalous result. The visas which more specifically appear to be directed to formal courses of study, namely the Student (Temporary) (Class TU) Visa and the Educational (Temporary (Class TH) Visa are not really appropriate to the sort of informal study proposed to be undertaken by the appellant. They relate to studies of a more formal nature, and studies provided in a more formal structure: see e.g. the definitions in reg 1.03 concerning such matters as "education provider" and "registered course". As noted above, counsel for the respondent did not on the hearing of this appeal propose any particular reason why cl 686.221(2)(g)(ii) should operate in the way now contended for.

55 However, despite those considerations which might attract the description of anomalous to the way in which that clause operates in relation to the subclasses of tourist visas to which I have referred, in my view the words in that clause should be given the same meaning as the words in condition 8201, and should be given their ordinary English meaning. I do not see sufficient idiosyncrasy in the outcome to discern that the Regulations intended some other and more qualified meaning to be given to the words "studies or training" in that clause. It would have been comparatively easy for the Regulations to have added some qualification to permit courses of studies or training which are informal, or short term, or of a cultural nature as has been done in the definition of "tourism". The qualification, for example, could have been added that those courses not be permitted unless they were "informal study courses" as that expression is used in the definition of "tourism". The Regulations simply do not so provide.

56 Consequently, despite considerations pointing to the contrary, in my view the learned judge at first instance was correct in concluding that the word "studies or training" in cl 686.221(2)(g)(ii) are intractable. I agree with his Honour's conclusion, in the circumstances, that the criterion for the grant of the visa specified in that clause was not satisfied. Accordingly, I consider that the appeal should be dismissed. There is no reason why the normal rule as to costs should not apply, so I would also order the appellant to pay to the respondent costs of the appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.



Associate:

Dated: 21 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W 445 OF 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
VIRAL HASMUKHARI DESAI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE:
21 MARCH 2002

PLACE:
BRISBANE (HEARD IN PERTH) (VIA VIDEO CONFERENCE)




REASONS FOR JUDGMENT
EMMETT J

57 The appellant, having entered Australia pursuant to a Tourist (Short Stay) Visa (Sub Class 676) on 1 April 2000, applied for a Tourist (Long Stay) Visa (Sub Class 686) on 1 May 2000. On 12 May 2000, the application was rejected by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"). On 8 June 2000, the appellant sought review by the Migration Review Tribunal ("the Tribunal") of the delegate's decision. On 7 May 2001, the Tribunal affirmed the delegate's decision.

58 The appellant then made an application to the Federal Court for an order of review of the decision of the Tribunal. On 24 August 2001, a judge of the Court dismissed the application with costs. By notice of appeal filed on 14 September 2001, the appellant now appeals to the Full Court from the orders made on 24 August 2001.

STATUTORY FRAMEWORK

59 Section 31(1) of the Migration Act 1958 (Cth) ("the Act") provides that there are to be prescribed classes of visas. Under s 31(3) the Regulations may prescribe criteria for a visa or visas of a specified class. Section 40(1) provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. Section 41(1) provides that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

60 Regulation 2.01 provides that, for the purposes of s 31 of the Act, the prescribed classes of visas are such classes as are set out in the items in Schedule 1. Regulation 2.02(1) provides that a part of Schedule 2 is relevant to a particular class of visa if the part of Schedule 2 is listed under the sub-item "subclasses" in the item of Schedule 1 that refers to that class of visa. Regulation 2.03(1) provides that, for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the criteria set out in the relevant part of Schedule 2.

61 Regulation 2.04 provides that, for the purposes of s 40 of the Act, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant part of Schedule 2 are the circumstances set out in that part of Schedule 2. Regulation 2.05(1) provides that, for the purposes of s 41(1) of the Act, the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the part of Schedule 2 that relates to visas of the subclass in which the visa is included.

62 Three different kinds of visa are described in Schedule 1 to the Regulations. Part 1 of Schedule 1 deals with "Permanent Visas". Part 2 of Schedule 1 is concerned with "Temporary Visas, other than Bridging Visas". Part 3 of Schedule 1 deals with "Bridging Visas".

63 Item 1218 in Part 2 deals with Short Stay (Visitor) (Class TR) visas. It has one subclass, namely:

"676 (Tourist (Short Stay)) "

That is the class of visa held by the appellant upon his entry into Australia.

64 Item 1214 in Part 2 of Schedule 1 deals with Long Stay (Visitor) (Class TN) visas. It contains one subclass, namely:

"686 (Tourist (Long Stay))"

That is the class of visa for which the appellant applied on 1 May 2000.

65 The part of Schedule 2 to the Regulations that deals with subclass 686 visas contains clauses dealing with the following topics:

* 686.21 Criteria to be satisfied at time of application;

* 686.22 Criteria to be satisfied at time of decision;

* 686.6 Conditions.

66 The provisions of those clauses that are relevant to the question raised in this appeal are as follows:

"686.21 Criteria to be satisfied at time of application;
686.211 The applicant:

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

...........................

(ii) for [any] purpose other than a purpose related to business or medical treatment;

...........................

686.213 If the application is made in Australia:

(a) the applicant:

(i) is the holder of a substantive temporary visa...; and

(b) the applicant has complied substantially with the conditions to which the visa... held... by the applicant is... subject."

686.22 Criteria to be satisfied at time of decision

686.221 (1) The applicant meets the requirements of subclause (2), (3) or (4).

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

...........................

(g) if the application is made in Australia:

(i) the applicant continues to satisfy the criterion in paragraph 686.213(b); and

(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; and

(v)[sic] if the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more visitor visas or a subclass 417 (Working Holiday) visa, the applicant must satisfy the Minister that exceptional circumstances exist for the grant of the visa.

...........................

686.6 Conditions

...........................

686.612 ..., conditions 8101, 8202 and 8205."

67 Conditions to which a visa may be subject are set out in Schedule 8. Conditions 8101 and 8201, contained in Schedule 8, are in the following terms:

"8101 The holder must not engage in work in Australia.
8201 While in Australia the holder must not engage, for more than 3 months, in any studies or training."

Condition 8205 has no present relevance.

THE ISSUE

68 The primary judge concluded that the Tribunal made errors of law in the course of its reasons for affirming the delegate's decision to refuse the appellant's application for a class 686 visa. However, his Honour concluded that, because the criterion referred to in clause 686.221(2)(g)(ii) would not be satisfied, it would be futile to remit the matter to the Tribunal for further consideration because its decision was, albeit for the wrong reasons, correct.

69 In his application form, the appellant declared, among other things, that he did not intend to study. However, in a letter of 28 April 2000 from a migration agent acting on the appellant's behalf, under cover of which his application was forwarded to the Department, the following appeared:

"Our client is in Australia on a one (1) month visitor visa, but has advised this practice that he wishes to undertake a short English course (as he is able to on such a visa) and look at study options here with a view to returning to Australia as a full fee paying student in the year 2001, along with his (common law) wife. He is also to visit friends here who are permanently resident and hope to travel to Sydney and Melbourne after completing the course for sight seeing purposes."
70 The primary judge concluded that the "short English course" referred to in that letter constituted "studies" within the meaning of paragraph 686.221(2)(g)(ii). His Honour considered that the word "studies" is an ordinary English word and that no conclusion was open other than that the course referred to in the letter was within that paragraph.

71 The appellant's notice of appeal raised the following grounds:

"1. The learned primary judge erred in law in deciding that the relevant regulation should not be read down or was internally inconsistent.
2. The learned primary judge erred in law and fact by not holding that the appellant satisfied the relevant criteria and was entitled to the grant of a visa.

3. The learned primary judge erred in law and fact by deciding the question whether the appellant was engaged in studies or training instead of remitting that question to the Migration Review Tribunal for decision."

Although he was present in court for the hearing of the appeal, the appellant advanced no submissions to the Full Court in support of his appeal.

72 The questions raised on appeal are:

* whether the primary judge erred in the construction that he adopted for the expression "studies or training";

* whether his Honour erred in the exercise of his discretion in not remitting that question to the Tribunal for decision.

73 There is no substance in the second issue. The Tribunal found that the primary expressed intention of the appellant for seeking a subclass 686 visa was to pursue further studies in Australia. If, in the light of that finding, it was not open to the Tribunal to conclude, as a matter of law, that the criterion in paragraph 686.221(2)(g)(ii) could be satisfied, there would indeed be no utility in remitting the matter to the Tribunal. His Honour had a discretion under s 481(1) of the Act to refuse relief. It would be a proper exercise of that discretion to decline to grant relief if the Tribunal's findings of fact preclude the appellant from satisfying the criteria that must be satisfied before his application for a subclass 686 visa could succeed. Thus, the real issue on the appeal is the proper construction of the expression "any studies or training".

74 In circumstances where the Tribunal found that the intention of the appellant for seeking a subclass 686 visa was to pursue further studies in Australia, it was not open to the Tribunal to be satisfied that the further period of stay being sought by the appellant was not sought for the purpose of commencing continuing or completing any studies. It might have been open to the appellant to contend, by adducing further evidence as to the nature of the "short English course" and what it entailed, to demonstrate that it did not fall within the expression "any studies or training". In that case, it may have been possible to contend that the Tribunal incorrectly applied the law in concluding that the intention of the appellant was to pursue further "studies" in Australia. However, it is difficult to imagine any English course that would not constitute studies or training. In any event, no submission was advanced that the "short English course" that the appellant wished to undertake was not "studies or training" within the meaning of the relevant paragraph.

75 The relevant criterion will not be satisfied unless the decision-maker is satisfied that the further period of stay is not sought for the purpose of commencing, continuing or completing any studies or training. On the other hand, condition 8201 would be a condition of the visa, if granted, such that the holder must not engage for more than 3 months in any studies or training. That might be thought to be anomalous.

76 That is to say, it would not be a breach of such a condition if the appellant were to engage in studies or training, so long as he did not engage in such studies or training for more than three months. Accordingly, it might be thought that there is implicit in the terms of condition 8201 a policy to permit a visitor to engage in studies or training for less than three months. On the other hand, the language of the relevant paragraph would preclude the criterion being satisfied unless the Minister was satisfied that the applicant was not seeking a further period for the purpose of commencing, continuing or completing any studies or training at all. It might be arguable, therefore, that the relevant paragraph should be construed in a way that would permit the criterion to be satisfied so long as the Minister was satisfied that an applicant was not seeking a further period of stay for the purpose of commencing, continuing, or completing any studies or training that would last for more than three months.

77 I do not consider that the relevant paragraph should be construed in that way. It is significant that criterion (2)(g)(ii) applies only where the application is made in Australia. Condition 8201, on the other hand, would apply in the case of any subclass 686 visa, whether the application for it is made in Australia or outside Australia. There is ample work for both criterion (2)(g)(ii) and condition 8201 to do. The prohibition on commencing, continuing or completing any studies or training applies only to an applicant who makes an application in Australia. Condition 8201, on the other hand, while it would apply to a visa granted pursuant to such an application, would also apply to a visa granted pursuant to applications made outside Australia. There is no reason to construe criterion (2)(g)(ii) otherwise than in accordance with the ordinary meaning of the words contained in the paragraph.

78 I do not consider that any of the grounds of appeal has been made out. The primary judge made no error. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.



Associate:

Dated: 21 March 2002

Counsel for the Appellant:
The Applicant appeared in person




Counsel for the Respondent:
Mr JD Allanson




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
14 February 2002




Date of Judgment:
21 March 2002

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