Alimi v Minister for Immigration & Anor
[2007] FMCA 1520
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALIMI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1520 |
| MIGRATION – Migration Review Tribunal – partner visa – secondary applicant – whether dependent on the family head – whether the family head includes the spouse of the family head. |
| Migration Regulations 1994, rr.1.05A, 1.12, cl.309.311 Sch.2 |
| Al Naqi v Minister for Immigration& Anor [2007] FMCA 874 Drake v Minister for Immigration & Ethnic Affairs (No2) (1979) 2 ALD 634 El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43 Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 |
| Applicant: | KHODADAD ALIMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 588 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 3 September 2007 |
| Date of last submission: | 3 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | John A. Gibson |
| Solicitors for the Applicant: | Thornton Immigration |
| Counsel for the First Respondent: | Emily Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 10 May 2007 and amended on 13 August 2007 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 588 of 2007
| KHODADAD ALIMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant was born in Afghanistan in 1979. His father was killed in 1986, shortly before the birth of the applicant’s brother, Khaliqdad. Their mother remarried soon afterwards, and abandoned the applicant and his brother to the care of their paternal grandparents and uncles. In 1999, the applicant married and began living with Habiba. Khaliqdad joined them. He was then 13 years old. In 2000, Habiba and the applicant had a son. In 2001, the applicant left Afghanistan as a refugee. He was given permanent residence in Australia. Habiba continued to care for Khaliqdad. The applicant sent money to Habiba for her support, and for the support of their son and Khaliqdad. In 2004, Habiba, her son and Khaliqdad moved to Pakistan.
In 2005, the applicant and Habiba applied for a partner visa, with their son and Khaliqdad as secondary applicants. The delegate allowed the applications of Habiba and her son but refused the application of Khaliqdad. The Migration Review Tribunal affirmed that decision on the grounds that Khaliqdad was a dependent of the applicant rather than Habiba. The applicant now seeks judicial review of the Tribunal’s decision.
Legislation
The relevant criterion for the grant of a visa to a secondary applicant for a partner visa is set out in clause 309.311 of Schedule 2 to the Migration Regulations 1994. That clause requires a secondary applicant to be a member of the family unit of the primary applicant, who, in this case, is Habiba. Regulation 1.12(1) of the Regulations defines “member of the family unit” as follows:
1.12 Member of the family unit
(1)Subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head ) if the person is:
(a)a spouse of the family head; or
(b)a dependent child of the family head or of a spouse of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse of the family head; or
(e)a relative of the family head or of a spouse of the family head who:
(i) has never married or is widowed, divorced or separated; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
Regulation 1.05A(1) of the Regulations defines “dependent” as follows:
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
The Tribunal summarised the effect of these provisions as follows:
This regulation prescribes clear objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claimed to be dependent (the ‘first person’) must be at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs: Huynh v MIMA [2006] FCAFC 122 at [28]. The Full Federal Court held in Huynh, that the words of the regulation, on their proper construction, do not carry with them any implication of there being a necessity to provide the relevant support. The question which the Regulations require to be addressed is whether as a matter of fact, the first person is relying for support on the other person: Huynh at [44].
Grounds of review
The only ground of review in the amended application filed on
13 August 2007 is as follows:
The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s348 of the Act. The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
PARTICULARS
(i)The Second Respondent misconstrued and/or misunderstood the criteria in cl 309.311 required to be satisfied for the grant of the visa as to whether the visa applicant was a member of [the] family unit of a person, who satisfied the primary criteria.
(ii)It misunderstood the meaning of Regulation 1.05A(1)(a)(i) as to whether the Visa Applicant was dependent on the primary applicant as “the family head” for the purposes of Reg 1.12(1)(d)(ii) and (iii) in that it found that the Visa Applicant failed to satisfy this criterion on the grounds that he was not wholly or substantially reliant on the primary applicant for financial support and was wholly or substantially reliant on the Applicant for financial support.
The issue
There is no question that Khaliqdad was relevantly dependent on either the applicant or Habiba. At the time of the Tribunal’s decision, Khaliqdad was a 20 year old student living in Pakistan. The issue in dispute is whether it is sufficient that Khaliqdad was dependent on the applicant rather than his wife.
The applicant’s arguments
The applicant referred to paragraph 7.4 of the PAM3 guidelines in respect of the definition of “dependent” in reg.1.05A. That paragraph concerns the situation where support is provided by one of a cohabiting couple. It states that:
If support is provided by one of a couple...
It is policy that if support is provided by one of the cohabitating couple, the financial support may be attributed to the couple, even though only one may be in receipt of an income.
For example if the family head or sponsor is the mother, but only her spouse has an income, the person may still be considered to be reliant on the mother if that is a requirement for grant of the visa.
It may be doubted that, at the time of application, the applicant and his wife were cohabiting. The applicant was living in Australia and his wife was living in Pakistan. Be that as it may.
The applicant acknowledged that the PAM3 guidelines are not binding on the Tribunal and a failure to follow them is not a jurisdictional error. However, the applicant relied on Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J. In that case, his Honour said:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. (emphasis added)
The applicant also relied on dicta of Gray J in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43 at [45] that, “A failure to apply the guidelines may have some significance in establishing some error on the part of the decision-maker.” In the present case, the applicant argued that paragraph 7.4 of the PAM3 guidelines on reg.1.05A correctly interpreted that regulation and the Tribunal, apparently in ignorance of the relevant guidelines, misinterpreted the regulations.
The applicant referred to the general guidance on statutory construction set out in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 at [22] to [23].
The applicant additionally argued that the decision of this court in Al Naqi v Minister for Immigration & Anor [2007] FMCA 874 was wrong. In that case, Riethmuller FM considered a case where the applicant husband provided support to his wife and to his own mother and two brothers. It was argued that the applicant’s mother and two brothers were dependent on the applicant’s wife and thus satisfied the criteria for secondary applicants for partner visas. His Honour rejected that contention, saying that:
In order to make a determination on a ‘broad practical basis’ about who is providing support it will sometimes be necessary to identify the underlying source of the support and reasons for the provision of that support. For example, it could not be suggested that the applicant’s mother is ‘dependent’ (in the sense used in the regulations) on the financial institution in Pakistan, which provides her with the cash money equivalent to the transfers the applicant makes from Australia. The financial institution only facilitates the transfer of funds. This is because the underlying source of the funds is the applicant, and the underlying motivation for payment is the applicant’s familial relationship.
In many cases involving a husband and wife, which would be the subject of the PAM, the dependents would be receiving the support because of the relationship of the supporter with their spouse, who may be providing the funds.
The Court and the Tribunal would generally avoid the distasteful process of expressly determining whether or not a person's spouse would be likely to support their dependents if they were not in a spousal relationship. However, on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided. This appears to me to be the circumstance to which PAM3 is directed.
In this case, however, there is no real doubt that the applicant would continue to support his mother and brothers regardless of the nature of his relationship with his wife, and indeed, even if he, his mother or brothers had no relationship with his wife. In these circumstances it is difficult to see how it can properly be said that the applicant's mother and brothers are dependent upon his wife. The applicant is the ultimate source of the funds, and the reason for the support is not based upon any relationship of the applicant or the claimed dependants with his wife, nor any reliance upon the wife.
Consideration
It seems to me that the Tribunal correctly understood the relevant Regulations. Regulation 1.12(1) refers to:
(e) a relative of the family head or of a spouse of the family head who:
…
(iii)is dependent on the family head.
The Regulation in paragraph 1.12(1)(e) distinguishes between the family head and the spouse of the family head but says that a relative of either, who meets the subsequent conditions, is eligible for the relevant visa. However, the Regulation in sub-paragraph 1.12(1)(e)(iii) does not include a person who is dependent on a spouse of the family head. It is confined to a person who is dependent on the family head.
The applicant’s interpretation of the Regulations requires the court to read in at the end of subparagraph 1.12(1)(e)(iii) the words, “or a spouse of the family head.” I do not consider that is permissible, under any principle of statutory construction. In paragraph 1.12(1)(e) of the Regulations, the drafter had clearly considered that the family head was distinct from his or her spouse. The drafter chose to include a spouse in the opening words of paragraph 1.12(1)(e) but not in sub-paragraph 1.12(1)(e)(iii). There is no reason for the court to conclude that that choice was anything other than deliberate or that the words of sub-paragraph 1.12(1)(e)(iii) do not reflect the intention of the drafter. In the circumstances, I see no basis for reading in the words required by the applicant’s argument.
The applicant did not identify any particular principle of statutory construction, set out in Hyunh or elsewhere, which supported his contention. I am unaware of any principle that would assist the applicant in this case.
I note that PAM3 includes in paragraph 1.4 of the discussion of Regulation 1.05A a directive that:
In all cases, officers must consider on a case-by-case basis the claims put forward, taking into account the actual wording of the relevant regulation.
The reference to the actual wording of the relevant regulation alludes to the fact that the definition of dependent in regulation 1.05A applies not only to the visa criteria relevant in this case, but also to various other types of visa. It appears that, in the case of a partner visa, but perhaps not in other cases to which dependency is relevant, the Regulations themselves are at pains to distinguish between a person and his or her spouse.
As to Al Naqi, it appears to me that the overall result was correct. The applicant took exception to the passage cited above from paragraph 14 of that decision. However, it seems to me that the applicant may have misconstrued that passage. His Honour was simply saying, as I understand it, that it may sometimes be helpful, in ascertaining the precise source of support, to ascertain the reasons for the provision of that support. His Honour was not saying that it is always necessary to identify the reasons for support being given, much less that there need to be good reasons for that support. The ratio of Al Naqi appears to me to be that, at least in relation to secondary applicants for a partner visa, where the ultimate source of support is a particular person, the secondary applicant is not the dependent of that person’s spouse. As my decision in this case is consistent with the ratio of Al Naqi, it is unnecessary for me to dwell further on this point.
As to Drake (No 2), it seems to me that the Tribunal correctly applied both that decision and the relevant regulation. That regulation was not consistent with the policy. To that extent, the policy was unlawful. The regulation had to prevail.
Conclusion
For these reasons, the application must be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 16 October 2007
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