Bagus, N. v Minister for Immigration, Local Government and Ethnic Affairs

[1994] FCA 334

NELSON BAGUS v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NG 873 of 1992
FED No 334/94
Number of pages - 10
Immigration
(1994) 33 ALD 601

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WHITLAM J

CATCHWORDS

Immigration - application for entry permit as "last remaining relative" - whether applicant disqualified on account of "contact with overseas near relative during a reasonable period preceding the application" - meaning of expression.

Migration Regulations, reg 9(2)(a)(ii)

Hunt v. Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380

HEARING

SYDNEY, 11, March and 22 April 1993
#DATE 31:5:1994

Counsel for the applicant: G.J.L. Scragg

Instructed by: Diaz and Associates

Counsel for the respondent: N.J. Williams

Instructed by: Australian Government Solicitor

ORDER

1. The decision of the respondent's delegate dated 19 November

1992 is set aside.

2. The respondent is to consider according to law the

applicant's application lodged on 11 November 1992 for permission to remain permanently in Australia.

3. The respondent is to pay the applicant's costs, including

costs of the hearing for one day only.

JUDGE1

WHITLAM J The applicant, Mr Nelson Bagus, is a citizen of the Philippines born on 12 September 1961. His father is dead. His widowed mother and two of his brothers (Marlo, born 1957, and Mauro, born 1964) are Australian citizens who reside in Australia. His only other sibling is a brother, Rene (born 1959), who is a citizen of the United States of America and lives in that country.

1. Mr Bagus is illegally in Australia. On 11 November 1992 he applied to the respondent for permission to remain permanently in Australia as a "last remaining relative". He was nominated by his brother, Marlo. In his application, Mr Bagus disclosed that his brother Rene resided in the United States.

2. His application had to be assessed under reg 131A of the Migration Regulations, which provided:
   

"131A (1) The following criteria are prescribed in relation to a December 1989 (temporary) entry permit:

(a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b) the applicant was in Australia on, and has not left Australia since, 18 December 1989;

(c) the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;

(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit;

(i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii) the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

(iv) the applicant is:

(A) an aged dependent relative; or

(B) an orphan relative; or

(C) a special need relative; or

(D) a remaining relative within the meaning of regulation 9; of a settled Australian citizen or settled Australian permanent resident; or

(v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident;

(e) if, in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support, an assurance of support satisfactory to the Minister has been given;

(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h) the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.

(2) In this regulation, "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence."

1. The officer handling the application in the Department of Immigration Local Government and Ethnic Affairs was a Ms Catherine Ingram. She considered that Mr Bagus met the criteria in pars (a), (b) and (c) of reg 131A(1) and then turned her attention to the regulation mentioned in par (d)(iv)(D).

2. Regulation 9 of the Migration Regulations provided:
   

"9 (1) An applicant for a visa or entry permit is a remaining relative for the purposes of these Regulations if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) a step-relative, within 1 of those degrees of relationship;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; and

(c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2).

(2) An applicant is disqualified if:

(a) the applicant or the spouse (if any) of the applicant:

(i) usually resides in the same country, not being Australia, as an overseas near relative; or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(c) the applicant is a child who:

(i) has not turned 18;

(ii) has been adopted by an Australian citizen or an Australian permanent resident (in this paragraph called the "adoptive parent") while overseas; but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

(3) In this regulation, "overseas near relative" means a person who is:

(a) a parent, brother, sister or non-dependent child; or

(b) a step-relative, within 1 of those degrees of relationship;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation

(1)."

1. Ms Ingram had telephoned Mr Bagus on 17 November 1992. She spoke to him through a Tagalog interpreter and made the following file note of that conversation.
   

"He provided the following responses to my question. - He cannot remember when his brother became a USA citizen, he has been in the USA a long time and has 3 children.

- Mr Bagus last saw his brother Rene in last December, when he came for the wedding of his youngest brother. - When Rene was here he stayed with Mr Bagus. - They have not had contact by phone or letters since then, only his mother has been communicating with Rene."

1. In her assessment report, Ms Ingram stated her conclusion this way:
   

"An applicant is disqualified under subregulation 9(2)(a)(ii) from satisfying Regulation 9(1) if the applicant has had contact with an overseas near relative during a reasonable period preceding the application.

The Procedures Advice Manual Extended Eligibility Temporary Entry Permit Book 5 Paragraph 5.5 provides Policy guidelines on a "reasonable period" prior to lodging the application over which the applicant has had contact with other relatives - which is usually considered to be five years. As Mr Bagus has had contact with his brother Rene living in the USA as late as last December it is considered the applicant is disqualified under subregulation 9(2)(a)(ii) from satisfying Regulation 9(1) as a Remaining Relative. Subsequently, (sic) Mr Bagus fails to satisfy the legal criteria of Regulation 131A(1)(d)(iv)."

She went on, accordingly, to recommend that the application be refused.

1. The respondent's delegate, Ms Barbara Mauro, agreed with the recommendation. On 19 November 1992 she refused the grant of a December (1989) temporary entry permit and certain consequential permits.

2. On 26 November 1992 Mr Bagus commenced this proceeding for judicial review of Ms Mauro's decision, apparently in reliance on various provisions of s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). Subsequently on 21 December 1992 Ms Mauro produced a statement under s 13 of the ADJR Act. The relevant part of her statement said:
   

"4.5. I considered whether Mr Nelson Bagus, the applicant, was disqualified as a remaining relative under subregulation (2) of Regulation 9. 4.51. I accepted that he does not reside in the same country, not being Australia, as an overseas near relative. Mr Bagus has indicated that he has three siblings, two of whom are Australian citizens and one of whom, Mr Rene Bagus, is an American citizen. Mr Bagus holds Filipino citizenship and there is no indication that he holds residency in any other country. He therefore does not fall within the provision of 9(2)(a)(i). 4.52. I then turned my mind to whether he falls within Regulation 9(2)(a)(ii) considering whether he has had contact with an overseas near relative during a reasonable period preceding the application. 4.53. Mr Nelson Bagus was contacted by an officer of the Department on 17 November 1992. Mr Bagus, through an interpreter of the Telephone Interpreter Service, provided information concerning his American resident brother. Mr Bagus could not remember when his brother became an American citizen. He did say that has been in the USA for a long time and has three children. Mr Bagus stated that he last saw his brother in December 1991 when he came for the wedding of his youngest brother. Departmental movement records indicate that Mr Rene Bagus arrived in Australia on 27 December 1991 and departed Australia on 10 January 1992. The applicant also stated that Mr Rene Bagus stayed with him. The applicant stated that he had not had contact by phone or letters since then although he did state that his mother with whom the applicant lives has been communicating with her son. 4.54 I concluded that the applicant had close contact with his brother 10 months before lodging the application when Mr Rene Bagus attended the wedding of his younger brother, Mauro Bagus and whilst in Australia stayed with the applicant. Despite the distance separating the Bagus family, there would appear to be familial bonds. 4.55. I have also taken into account that accompanying the application lodged on 11 November 1992 were certified copies of documents, one of which was a certified copy of Rene Bagus's American passport, certified by Mr J.G. Diaz, Solicitor, Sydney. I concluded therefore that the applicant would have needed to contact his brother either directly or indirectly to obtain his passport. Given that Mr Diaz, a solicitor certified the submitted copy as a true copy of the original, I can only assume that Mr Rene Bagus must have forwarded his original passport. The inclusion of a certified copy of Mr Rene Bagus's American passport with Nelson Bagus's application supports my conclusion that there has been contact between the applicant and his overseas resident brother during a reasonable period preceding the application.

4.56 I also note that the applicant stated that his mother maintained contact with Rene. The applicant lives at the same address as his mother. 4.57 The Oxford dictionary defines the verb "contact" as "meeting, communicating and to get in touch with". I have considered what is contact in relation to brothers living in separate countries. Whilst, obviously it would not be expected that Mr Bagus would have frequent personal contact with his brother as they live in separate countries, there is sufficient evidence that contact within the above definition has occurred recently. In light of my finding, I concluded that Mr Nelson Bagus does not fall within the interpretation of "remaining relative" as provided for in Regulation 9 in that he is disqualified pursuant to Regulation 9(2)(a)(ii) in that he has had contact with an overseas near relative during a reasonable period preceding the application.

1. This case turns, in my view, on the correct construction of reg 9(2)(a)(ii). Before I deal with that question it is convenient to mention two preliminary matters.

2. The first is the reference in Ms Ingram's report to the Procedures Advice Manual. Counsel for the respondent tendered paragraph 5.5. of that Manual, which she had consulted. Relevantly, that paragraph stated:
   

"When interpreting the definition of "remaining relative" (in paragraph (2)(b) of the definition of a remaining relative ...), a "reasonable period" prior to lodging the application over which the applicant (and spouse) have had no contact with other relatives is usually considered to be five years."

(Underlining supplied)

1. This is, at first sight, a curious statement since par (2)(b) of reg 9 did not define "remaining relative" and reg 9 did not speak of "no contact." The statement in the Manual may be explained by looking at the provisions of reg 9 as in force prior to 31 August 1990:
   "9. (1) In these Regulations, a reference to a
   

remaining relative is a reference, in relation to a person who is an Australian citizen or an Australian permanent resident usually resident in Australia, to a relative of the person, being a brother, sister or non-dependent child:

(a) if unmarried - who has no parent, brother, sister or non-dependent child resident outside Australia; or

(b) if married:

(i) who has no relative, being a parent, brother, sister or non-dependent child, resident outside Australia; and

(ii) whose spouse (if included in the application) has no such relative resident outside Australia.

(2) In relation to an Australian citizen or Australian permanent resident referred to in subregulation (1), a person who is a brother, sister or non-dependent child is to be regarded as a remaining relative if:

(a) the total number of relatives of the person (including relatives of any spouse) who are not:

(i) Australian citizens or Australian permanent residents; or

(ii) residents of the country in which the person usually resides; does not exceed 3; and

(b) the person (and any spouse) have had no contact with any such relatives during a reasonable period preceding the day of the relevant application under the Act.

(3) In this regulation, a reference to a brother, sister or non-dependent child includes a reference to a step-relative within the same degree of relationship."

1. This means that the advice in the Manual was out of date when Ms Ingram used it to make her recommendation. She appears to have used the Manual only for the purpose of quantifying what was "a reasonable period." However, it may be that her use of the Manual led her to give too restricted a meaning to the word "contact" in the legislative context.

2. The second preliminary matter I wish to mention is paragraph 4.55 of Ms Mauro's statement. I regret to say that this statement strikes me as slightly ridiculous. Mr Bagus's application to the Department is in evidence before me. The certificate by his solicitor in respect of the copy of Rene's passport is not dated. This American passport was issued in December 1991. A copy may well have been procured when Rene visited Australia. There are many possible explanations of how this copy of Rene's passport came to be made. Any conclusion by Ms Mauro that Mr Bagus had had contact with his brother which rested solely on this material would, in my opinion, have led to an improper exercise of power under s 5(2)(g) of the ADJR Act.

3. I turn now to the construction of reg 9(2)(a)(ii). The meaning of the subparagraph does not appear to have been the subject of judicial determination. However, reg 9 was considered by Gummow J in Hunt v. Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380. His Honour pointed out (at 385-386) that reg 9(2) was framed so as to look at the legal form of family relationships in par (a)(i) and their substance in par (a)(ii). His Honour said (at 386):
   

"(In) various places in the Regulations criteria are used which depend not so much upon the existence of a formal link or status in law as upon the actual condition of a relationship between two people; ... par (a)(ii) of reg 9(2) is such an example of (that) proposition and is directly in point; as I have indicated, par (a)(ii) is used disjunctively with par

(a)(i) and either is sufficient to disqualify; ... the current state of the social and emotional ties between the biological parent and child is not to the point applying par (a)(i); the appropriate head for considerations of that character, if any, is par

(a)(ii)."

1. The meaning of the word "contact" is important. In my opinion, it does not refer to physical contact, such as a meeting, but communication in the sense of a social relationship. The Macquarie Dictionary (2nd ed.) gives the primary meaning of the word "contact" as "the state or fact of touching", but it goes on to state a sociological meaning as "a condition in which two or more individuals or groups are placed in communication with one another." Ms Mauro appears to have used the word in this second sense in paragraph 4.57 of her statement.

2. Once this meaning of contact is recognized, counsel for the applicant submits that the requirements of par (a)(ii) become clear. Disqualification does not depend upon a single physical encounter with a relative within a reasonable period prior to the application. What must be established is that there has been social contact "during a reasonable period preceding the application." It is submitted that the word "during" requires that the question be asked whether there has been contact over a period. A consequence of this construction is that what is a reasonable period will depend on the circumstances of each case so that the period of the past reviewed will vary from case to case, but the end point of the period will always be the time when the application is made.

3. This construction point urged by the applicant was novel. It was not specified in either his original application to the Court or expressly in the amended application filed at the hearing. It did appear from the applicant's submissions filed on the eve of the hearing. The respondent was granted an adjournment to meet this fresh point which struck me as having some force. In his very helpful and considered submissions, counsel for the respondent concedes that the word "during" has two ordinary meanings, namely "throughout the continuance of" and "in the course of": Macquarie Dictionary (2nd ed). However, he contends for the second of those meanings and develops his argument this way.

4. First, he says any proposition that par (2)(a)(ii) should be read as operating only where there has been contact throughout the continuance of a reasonable period preceding the application is unsupportable in the light of par (2)(c). The word "during" in par (2)(a)(ii) is juxtaposed with the word "for" in par (2)(c), where the expression "residing overseas for a period of at least 12 months" is used. For the drafter to use different formulations within the same subregulation is a strong, though not a conclusive, indicator that different meanings were intended. If the drafter has intended that continuity of contact in a period before the application be required, a formula akin to that in par (2)(c) would have been used. Such a conclusion, it is submitted, is supported by the use of the phrase "has had contact". If a notion of continuity had been intended, it could have been expressed quite simply as "has maintained contact", or any number of other formulations conveying the notion of continuity.

1. Secondly, counsel for the respondent submits the adoption of a construction which requires continuity of communication will raise exceptionally difficult questions of fact and degree in the administration of the regulation and effectively deprive the disqualification of virtually all content. Contact between relatives in different countries cannot literally be continuous. The range of degrees of continuity will be infinite, and no clear criteria could be formulated to deal with that range. It would be difficult to administer such an interpretation and to substantiate any denial of continuity.

2. No doubt, the drafter of the provision could have used a different expression. Certainly it would have been easy to say "within a reasonable period," if that is what was intended. I think that the natural meaning in the context of the word "during" is that of "throughout the continuance of." As Gummow J indicated in admittedly obiter observations, the language of reg 9(2)(a)(ii) is apt to focus on the "current state of the social and emotional ties" between the overseas near relative and the relevant applicant. Regulation 131A(1)(d) is, after all, designed to deal with "compassionate grounds" for the grant of an entry permit. It would be extraordinary if an applicant's "contact" under reg 9 were not assessed up to and at the time of the application being lodged.

3. The construction which has found favour with me does not mean that there must be daily, weekly or monthly communication or social intercourse of any particular frequency. Once it is realized that contact does not mean physical encounters, the assessment of the contact in a social sense is a matter for the decisionmaker. The relevant considerations will vary according to factors, such as the literacy and means of individuals and the social customs of various national groups. Any difficulties in administration that flow from such a construction are simply a consequence of giving reg 9(2)(a)(ii) what I regard as its true meaning. In any event, I suspect that the difficulties may be exaggerated. If attention is paid to the correct meaning of "contact", it would seem no more difficult to assess the quality of such communication over a period prior to any application, than it would be to assess whether any such communication has taken place at all.

4. It is quite clear from paragraph 4.54 of her statement that Ms Mauro rested her conclusion that Mr Bagus had had "close contact" with his brother Rene on the basis that they met "10 months before lodging the application". She failed to have regard to any contact after that time beyond his mother's communications with Rene. These could not possibly found any decision that there had been contact of any sort between Mr Bagus and Rene. Whatever "familial bonds" may be evidenced by attendance at a younger brother's wedding, Ms Mauro has failed to assess the contact between Mr Bagus and Rene over the period up to the time of the application. In that respect, I consider that her decision involved an error of law.

5. It follows that the decision should be set aside and Mr Bagus's application reconsidered. The hearing of this matter was unnecessarily extended by late notification of the case which the respondent had to meet. Accordingly, I shall order that the respondents pay the applicant's costs of the hearing for one day only.

6. I make the following orders:
   

1. The decision of the respondent's delegate dated 19 November 1992 is set aside.

2. The respondent is to consider according to law the applicant's application lodged on 11 November 1992 for permission to remain permanently in Australia.

3. The respondent is to pay the applicant's costs, including costs of the hearing for one day only.