Bamba, R. v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 436

4 3 6  2

JUDGMENT No. ,A

IMHIGRATION - applications for extended eligibility family entry permite - prescribed criteria for the grant of permits in regulation 127 of the Migration Regulations - whether applicants were "innocent illegals" - regulation 7 - application and conetruction of "member of a family unit".

Migration Regulations - Regulations 7, 127.

SYDNEY 12 JUL 1994

DAHLIA v-

R

No. NG 761 of 1993

FOSTER J

13-MY i994 I \LLLI V CV

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 761 of 1993

1

GENERAL DIVISION

BFIWEEn: ROMMEL m, RUSSELL

BAMBA, DAHLIA BAMBA

Applicants

Am: MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

JUDGB HAKIHG ORDERS a FOSTER J

DATE:  13 MAY 1994

PLM35: SYDNEY

1.    The decision of the Immigration Review Tribunal be set aside.

2.   The matter be remitted for further consoderation in accordance with these reasons.

3.    The respondent pay the applicant's cost of this application.

m: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 761 of 1993

1

GENERAL DIVISION 1

BETWEEN t ROMMEL B M A , RUSSELL

BAMBA, DAHLIA BAMBA

Applicants

AND t MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

CORAllr	FOSTER J
DATE :	13 MAY 1994
PWCE :	SYDNEY

- (Extempore)

HIS HONOUR: These are appeals from three decisions of the Immigration Review Tribunal (the "Tribunal") given by a senior member on 8 September 1993. By these decisions the Tribunal

Minister for Immigration, Local Government and Ethnic Affairs	affirmed decisions previously given by a delegate of the
and affirmed by the Migration Internal Review office. The decisions were that each applicant would not be granted the extended eligibility family entry permits, code 822, which he or she had applied for.
The applicants are siblings and Philippines nationals. Each arrived in Australia on 15 March 1982 with
their mother on a visa valid for a stay until 1 April 1982. This visa was subsequently extended until 25 June 1982. There have been no further extensions, with the result that since that date each has been in this country illegally. Each sought the entry permits in question on 8 November 1991. At the t h e of the Tribunal's decision the applicants, Rommel Bamba, his brother Russell, and his sister Dahlia, were aged 24, 23 and 21 respectively. Accordingly, each were under the age of 18 yearn when they became illegal entrants in this country.
The applications were on the basis that they were "innocent illegals" - a description no doubt intended to indicate that their illegal status resulted not from their own acts but from those of their parents; who brought them to this country and caused them to become illegal entrants during their minority. The prescribed criteria for the grant of the permits sought are set out in re-127 of the Migration Regulations which was in force at the time of the delegate's decision. It has since been repealed and replaced, but it is
the relevant regulation for these proceedings by force of saving provisions in the later regulations.
The refusal of the Tribunal to allow appeals against the prior refusals to grant the permits was based upon its construction of parts of this regulation. The same point of law arise8 in each appeal, so they have consequently been heard together. So far as relevant, regulation 127 provides as follower

"The following criteria are prescribed in relation

to an extended eligibility (family) entry permit:

(a)	at the time that the application for entry permit is decided, the applicant:
(vi) being a person aged 18 years or more:

(A) became a prohibited non citizen, or illegal entrant, before attaining the age of 18 years; and

(B) has, before attaining the age of 18 years, been in Australia for the greater part of the period of time that the Minister regards ae the applicant's formative years; and

(C) is not a member of, and does not reside with, the family unit (if any) I within the meaning of regulation 7, with which the applicant first entered Australia; and

(b) at the time when the application for the entry permit is decided, the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria specified in item 9 in Schedule 1. "

Each applicant was over the age of 18 years at the time of the making of the application and had become an illegal entrant before attaining that age. The Tribunal consequently (and rightly) accepted that the first two requirements were fulfilled. Because the eenior member held that each applicant failed to comply with the requirements of sub-regulation 127(a)(vi)(C), hereafter referred to as the sub-regulation, she found it unneceesary to consider whether there was compliance with sub-regulation 127(a)(vi)(B).

This was on the basis that the requirements of sub- regulation 127(a)(vi)(A) to (C) were accumulative and that a failure to comply with one of them meant that the prescribed criteria -re not met. This proposition was originally challenged in the notice of appeal but that challenge has rightly been abandoned. The learned senior member had before her the unchallenged fact that each applicant was currently residing with the other applicants and their mother in the one home. She accepted that this group of persons relevantly constituted the "family unit", with which each applicant "first entered Australia". In so doing, in my view, she correctly applied that portion of the sub-regulation.

The eenior member further held that:

"The requirements prescribed under subregulation

127(a)(vi)(C) essentially comprise two limbs:

(1) The requirement that the applicant is no longer

' a member of . . . the family unit' with which he

first entered Australia; and

(2) The requirement that the applicant no longer resided with that family unit."

She then had regard to the words "within the meaning of regulation 7", where they appear in the sub-regulation, and considered the provisions of that regulation which provided a definition of the term "member of the family unit". I shall return to the wording of thie regulation Later in theee

reaeone. She said of the definition provided by regulation 7:

"The application of the definition to the provieione of regulation 127(a)(vi)(C) appeare awkward becauee the definition wae provided for the purpose of determining who made up the family unit of a principal applicant and are to be included under his or her application for migration."

Becauee of the view ehe had formed that the eub- regulation comprieed two dietinct limbs, she did not find it neceeeary to further explore the awkwardneae occasioned by the introduction of regulation 7 into its wording. She held that the second limb merely required that:

"the applicant ehould no longer be residing with the
family unit with which he first entered Auetralia."

As each applicant was eo residing she held that the requirements of the sub-regulation were not made out with the result that each applicant muet neceesarily fail. She accordingly affirmed the decieione under review. The

the applicante. In considering the challenge it is neceeeary	Tribunal's construction of the sub-regulation is challenged by
to have regard to the provisions of regulation 7. They are ae
f ollowe :

7. (1) In these Regulations, a reference to a member

of a family unit, in relation to an applicant for a visa or entry permit (other than an applicant referred to in eubregulation (2)) meane:

(a)	a epouse of the applicant, where the relationship is a genuine and continuing relationship and the parties are not legally separated; and
(b)	any dependent children of the applicant or of a

epouee of the applicant; and

(c) any dependent children of such dependent children; and

any relative of the applicant or of a epouee of

(d) the applicant who:

(i) does not have a surviving epouse or any other relative (other than the applicant) able to care for that relative in the relevant country; and

(ii) is ueually reeident in the applicant'e household; and

(iii) is dependent on the applicant; and

(e) any other relative of the applicant or of a spouse of the applicant who:

(i) has never married or is widowed, divorced or separated; and

(ii) is usually resident in the applicant's household; and

(iii) ie dependent on the applicant.

(2) In theae regulatione, a reference to a member of a family unit, in relation to an applicant for a student visa, an occupational trainee visa or an entry permit that is equivalent to such a viea, means :

(a) a spouee of the applicant; or

(b) any dependent children of the applicant or of

that epouee who are unmarried and have not

turned 18; or

(c) any person who has entered into an agreement to marry the applicant if the applicant and that person intend that the marriage ehall take place not later than 3 months after the entry of the person to Australia."

The applicants' contention, in substance, ie that the application of this definition to the provisione of the sub-regulation ie not merely awkward, as the Tribunal suggested, it is impossible. The result is that the sub- requlation is robbed of any meaning. It is made unworkable. Consequently, the only reasonable way to construe regulation 127 a8 a whole in its application to "innocent illegale" is to ignore the sub-regulation and determine the application on the basis of compliance or otherwise with- sub-regulations 127(a)(vi)(A) and (B). Counsel further subsnits that, in effect, the only way to make the sub-regulation seneible and workable is to read out of it the phrase: "within the meaning of zegulation 7".

This would eliminate the impossible difficulty of seeking to introduce into the wording of the eub-regulation the regulation 7 definition of "member of the family unit", involving as it does the concept of a principal applicant who cannot correspond with the applicant contemplated by the 8ub- regulation. Such a wholesale reading down of the sub- regulation, it is submitted, would be impermissible as an essay in construction. Coneequently, the only alternative is to 8trike down the whole eub-regulation. Authorities were

to in these reasons.	cited which I have considered but which I do not need to refer
Couneel for the respondent submits that the sub- regulation should be conetrued eo ae to give effect to what he contends is the obeervable underlying intention of the regulation makerr namely, to provide entry permits to innocent illegale who have eevered connection with the family unit
which involved them when minors in immigration illegality. This meverance was contemplated as being achieved by their ceasing to be dependent upon the family unit and also by ceasing to reside with it. To pass the test of the sub- regulation both requirements must be satisfied. The awkwardness occasioned by the references to regulation 7 could ba largely overcome by reading the words "within the meaning of regulation 7 " only with the words "member of the family unit" appearing in the sub-regulation.
Not without some difficulty and hesitation, I have came to a conclusion as to the proper construction of the sub- regulation which involves me rejecting all these submissions.
I am matisfied that I should endeavour to read the sub-
regulation with regulation 7 in a way that achieves a workable result consistent with what I perceive to be the intention of the draftsman. It is clear that the draftsman intended to provide not a nullity but a definite requirement for the issue of the relevant entry permits. I should seek to give effect
to this intention unless it is impossible for me to do so. The difficulty has obviously arisen through the draftsman seeking to reduce the verbiage of the provision by referring to regulation 7 in the shorthand way that he has adopted, without taking the longer, but far more satisfactory, course of spelling out precisely the elements of regulation 7 which he wished to import into the sub-regulation. I consider, however, that in seeking to overcome the difficulty it is both possible and permissible to divine his intention by considering the emsential elements of the two provisions. It is clear that regulation 7 seeks to define "member of a family unitn in a manner both comprehensive and definitive.
Although the concepts are centred around a postulated applicant for a visa or entry permit, that applicant is clearly enough envisaged as being a family head making an application for migration which is to include the family unit. That family unit can contain persona of differing degree6 of relationship to the principal applicant. Three main categories of family member are provided for. First, the spouse im included on no other basis than that the relationship be genuine and continuing and not subject to legal separation. The second category comprises children of the applicant and the spouse and any children of such children providing that the children are "dependent". Thirdly, there is a category of other stipulated classes of relatives of the applicant or spouse who must be both "dependent" and "usually residentg in the applicant's household. It is to be noted
only be dependent whilst the more remote relatives must be that in categorising members of the family unit, children need
both dependent and resident. Turning to the sub-regulation, one finds that the phrase "within the meaning or regulation 7" is placed in a position where it qualifies not only the notion of membership of the family unit, but also the concept of residing .with it.
I consider that what the drafteman was seeking to do, in a manner at once imperfect, elliptical and somewhat confuned, wan to transpose the categories of family membership from regulation 7 to the sub-regulation, with the object of indicating that each category should be severed from the family unit, for the purpose of qualifying for the innocent illegal category, by the ligation of those elements of the relationnhip which had constituted them "members" in the first place. That is, children were to qualify if they ceaeed to be dependent, other relatives if they ceased to be dependent and also ceased to reside.
Consequently, I differ from the learned eenior membr in the analysie of the operation of the eub-regulation. The second limb identified by her in the passage cited above, in my opinion, does not apply to children of the family unit but only to the more remote categories of relatives provided for in regulation 7. In my opinion, the exclusion of the applicants from the benefite of the regulation, on the basis that they continue to reside with the family unit, waa legally
dependent within the meaning of regulation 7. The evidence erroneous. They were not so excluded unleee they were also indicate6 that they were, in fact, independent. Consequently, if they comply with the requiremente of sub-regulations 127(a)(vi)(B) and regulation 7 ( 2 ) they will be eligible for the entry permits applied for.
I therefore set aside the decision of the Tribunal and remit the matter for further consideration in accordance with these reasons. I order the respondent to pay the applicant's costs.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable l4x Justice M. L. Foster.

Associate:

Date	r	13 MAY 1994
A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR M.A. ROBINSON
INSTRUCTED BY:	ADRIAN JOEL 5 CO

COUNSEL FOR THE RESPONDENT:	MR E. WASILENIA
INSTRUCTED BY:	AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING:	12, 13 MAY 1994
DATE OF JUDGMENT:	13 MAY 1994