Bin v Minister for Immigration and Multicultural Affairs

[1999] FCA 1323

FEDERAL COURT OF AUSTRALIA

Bin v Minister for Immigration & Multicultural Affairs [1999] FCA 1323

GUO BIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 15 OF 1999

VON DOUSSA J
14 SEPTEMBER 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 15 OF 1999

BETWEEN:	GUO BIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	14 SEPTEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be allowed with costs.

2.        The matter be remitted to the decision-maker for determination according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 15 OF 1999

BETWEEN:	GUO BIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	14 SEPTEMBER 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an application for judicial review brought under s 475 of the Migration Act 1994 (Cth).  The applicant, Mr Guo Bin, is a resident of the Republic of China.  He was born on the 8 May 1980.

2. By application lodged with the appropriate office of the Department of Immigration and Multicultural Affairs on 19 December 1997, Mr Guo Bin’s father applied for Resolution of Status of a Family Member, subclass 450, under Sch 2 of the Migration Regulations.  That application was decided on 14 October 1998 adversely to Mr Guo Bin, hence the present application for judicial review.  Review is sought on the ground that the decision involved an error of law, being either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts.

3. Whilst the only matter before the Court concerns the application in respect of Mr Guo Bin, other applications of a similar nature were made in respect of other members of the same family, and were under contemporaneous consideration.

4. In relation to Mr Guo Bin’s application, the decision-maker, having referred to a number of relevant provisions in the regulations, identified the question for decision as follows:

   “In order to satisfy the definition of ‘dependent child’, Mr Guo needs to demonstrate that he is “wholly or substantially dependent (on his father) for financial, psychological or physical support.”

5. Under the regulations, an applicant for the Resolution of Status under subclass 450 has to fulfil the criteria specified in cl 450.211 both at the time of the application and (by virtue of the provisions of cl 450.221), at the time that the decision was made.

6. The relevant provisions of subclass 450 cited by the decision-maker are as follows:

   “450.211        The applicant:

   (a)   is either:

   (i)   a member of the immediate family of a person (thesponsor) who:

   (A)has made an application for a Resolution of Status (Temporary) (Class UH) visa mentioned in paragraph 1216A(3)(a) of Schedule 1; and

   (B)on the basis of the information provided in that application appears to satisfy the criteria in Subdivision 850.21; or

   (ii) a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa; and

   (b) is sponsored by the sponsor.”

7. It is plain that the decision-maker has assumed that the relevant limb of cl 450.211 is the first limb, namely, the requirement that the applicant be a member of the immediate family of the sponsor.

8. The decision-maker referred to the definition of “member of the immediate family” in reg 1.12AA, which includes as a member a dependent child of the sponsor.  The term “dependent child” is defined at reg 1.03, which states:

   “dependent child means natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:

   (a)who

   (i)has not turned 18; and

   (ii)is wholly or substantially in the daily care and control of that person; or

   (b)who

   (i)has turned 18; and

   (ii) is dependent on that person …”

9. There is no need to cite subpar (c). The term “dependent” is also defined at reg 1.03 as follows:

   “dependent, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support.”

10. As I have said, it is clear from the reasons for the decision under review that the decision-maker concentrated on the first limb of cl 450.211.  On that assumption, the decision-maker identified the issue for decision as whether Mr Guo Bin was a member of the immediate family of the sponsor, a question which turned on whether Mr Guo Bin was wholly or substantially dependent on the sponsor for financial, psychological or physical support.

11. The decision-maker initially had information supplied by Mr Guo Bin and his sponsor in support of the application.  This was followed up by a telephone interview on 12 August 1998, at which Mr Guo Bin stated that he had graduated from the junior section of the Fuquing Nan Xiao Middle School in July 1998.  Mr Guo Bin also stated that he had tried, since graduation, to obtain employment.  However, his father had forced him to apply for migration when he was reluctant to do so.  Mr Guo Bin said that since graduating, he had remained reliant on his family for financial support and had remained in the family home.  His father at all relevant times was in Australia, and the family home was occupied by his mother and siblings.

12. Some doubt arose on the paperwork as to whether Mr Guo Bin was enrolled at school and whether his history had accurately been given.  This lead to a further interview being conducted with Mr Guo Bin in China on 18 October 1998.  The relevant migration officer who conducted the review concluded:

    “… that it is completely inconclusive that (a) he is enrolled, (b) that he actually attends classes, and (c) what he does with his time.  It appears that he is making all his own decisions about whether or not to attend school, (even though his mother thinks he is enrolled full-time).  When asked about employment he stated that he does not want to work and has never held down a job.”

13. It should be noted that later inquiries made by someone else at the school appear to have removed the doubt as to whether Mr Guo Bin was enrolled, but it is not necessary to pursue that for present purposes.

14. The decision-maker in the reasons for decision first stated the bald conclusion:

    “It was concluded that at age 18 he (that is, Mr Guo Bin) is choosing the lifestyle he is living and does not appear to satisfy the definition of a dependent child.”

15. The requirements of the Procedures Advice Manual are then referred to.  I construe the paragraphs of the reasons which immediately follow to indicate that the decision-maker is addressing the question of financial dependence, about which it is said that whilst it is accepted that Mr Guo Bin receives financial support from his father in Australia, he is completely self-reliant in making adult decisions for himself.  On that basis it is concluded that he is not financially dependent in the sense that he has any need for financial support from his father.

16. The reasons continue:

    “I have considered whether Mr Guo has demonstrated that he is “wholly or substantially dependent for psychological support”.  I note that PAM3 (Procedures Advice Manual 3) states that “the policy intention is that psychological dependence be related to a mental or emotional impairment or a medical condition which prevents the person from living independently”.  On the basis of the information provided by Mr Guo, I consider that he and his father share a normal relationship such as exists between family members. I do not consider that Mr Guo has demonstrated that he is wholly or substantially dependent on his father for psychological support.”

17. It is clear from other information in the paperwork – and, indeed, it is now acknowledged by counsel for the respondent – that at the time that the matter was under consideration, Mr Guo Bin was living with the sponsor’s – that is, his father’s – spouse, namely his mother, in China and that the spouse was herself an applicant for a Resolution of Status (Temporary) (Class UH) visa.  On those facts, the second limb of cl 450.211 was and is applicable to the case.  Mr Guo Bin is entitled to have a decision made under the second limb of cl 450.211 if that is favourable to his situation.  It is apparent on the papers, and not disputed, that the other primary criteria of cl 450.211 are fulfilled.

18. On the basis that the second limb of cl 450.211 has application, the question that fell for determination by the decision-maker was whether Mr Guo Bin is a dependent child of his mother – that is, the spouse of the sponsor.  That question, simply, has not been addressed by the decision-maker.  Nevertheless, counsel for the respondent seeks to uphold the decision on the basis that to send the matter back for reconsideration would be a futile exercise because there is a clear finding of fact in the reasons of the decision-maker in that:

    “At age 18 he is choosing the lifestyle he is living and does not appear to satisfy the definition of a dependent child.”

19. Counsel seek to rely on a passage from the judgement of Minister for Immigration and Multicultural Affairs v Pires (1998) 160 ALR 97 at 103 per Mansfield J, as correctly expressing the law which should be applied on the question of dependency. His Honour at page 103 said:

    “I have come to the conclusion that the expression “wholly or substantially dependent” in the relevant definition was intended to convey that the visa applicant has a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support.  It is appropriate to explain my reasons for that conclusion.

    The definition identifies that the dependency may involve the need for financial, psychological or physical support.  It is clear that there is contemplated some real need on the part of the visa applicant for that support.  Put at its lowest level, by way of example, it would not sensibly fulfil the purpose of the Act if a visa applicant was able to choose not to cook or clean, and allowed a state of fact to develop where some other person was providing that physical support.  Indeed, as the expression “psychological support” has been interpreted (as discussed below), it involves an identifiable need for that type of support.  It is therefore likely that the concept of “physical support” in context also was intended to convey that the visa applicant has a need for financial support, and not simply that as a fact such support was being provided.”

20. Later in his reasons, Mansfield J addresses the question of psychological support and applied observations of Heerey J in Shakira v Minister of Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 525 at 530-531. It is not necessary to further discuss the legal propositions referred to in those decisions. For the present purposes, I adopt as a correct statement of the law the observations of Mansfield J.

21. Even accepting that there is an element of need involved in the concept of one person being dependent upon another for psychological support, the facts as they were made known to the Department in this case clearly made available the view that Mr Guo Bin at all relevant times has had a need, indeed a very real need, for psychological support from his mother.  He is a young man who has not been in remunerative employment.  Whilst in 1998 he was meant to be in school, he did not attend as regularly as he should because, he says, he found difficulty with study.  He lived with his mother and siblings in the family home.  He had no other means of support save for that which came through his mother, and had no other place to live.  In those circumstances, the view was clearly open, if not dictated by the facts, that Mr Guo Bin was in need of psychological support from his mother.

22. That question of dependence on his mother has not been addressed at all, as the decision-maker was concerned only with determining whether there was dependency upon Mr Guo Bin’s father for psychological support.  It is readily understandable that the decision-maker would conclude there to be no such dependency, when Mr Guo Bin’s father had been living in Australia since 1990.

1. In my opinion the decision cannot stand as the decision that dependency does not exist involves an error of law, being the incorrect application of the law to the facts.  In my opinion the decision must be set aside and the matter returned to the respondent for decision according to law.

I certify that the preceding twenty three (23) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate:

Dated:

Counsel for the Applicant:	Mr M Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S.J. Maharaj
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 September 1999
Date of Judgment:	14 September 1999