Chen v Minister for Immigration and Ethnic Affairs
[1994] FCA 474
•24 JUNE 1994
CHEN WEN YING v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G 719 of 1993
FED No. 474/94
Number of pages - 10
Immigration - Statutes
(1994) 123 ALR 126
(1994) 51 FCR 322
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES J
CATCHWORDS
Immigration - extended eligibility (family) entry permit - meaning of "special need relative" - whether an illegal entrant parent to an Australian child was a special need relative - meaning of "serious circumstance".
Statutes - interpretation - construction in accordance with international treaty obligations.
Migration Act 1958 (Cth)
Migration Regulations 1989, reg. 127
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
International Covenant on Civil and Political Rights
United Nations' Declaration of the Rights of the Child (1959)
Chen v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 501
Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
Chu Kheng Lim v. Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1
Ah Hin Teoh v. Minister of State for Immigration and Ethnic Affairs (Unreported, Federal Court,14 April 1994)
HEARING
SYDNEY, 6 April 1994
#DATE 24:6:1994
Counsel for the applicant: S.J. Gageler
Solicitors for the applicant: Ray Turner
Counsel for the respondent: R.M. Henderson
Solicitor for the respondent: Australian Government Solicitor
ORDER
1. That the decision under review be set aside and
that the matter be remitted to the decision-maker for reconsideration in accordance with the direction that the applicant is a "special need relative" in relation to her son Joey.
2. That the respondent pay the applicant's costs of
the proceedings.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
DAVIES J This application, brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeks orders of review with respect to a decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse the application of Chen Wen Ying for an Extended Eligibility Temporary Entry Permit.
The applicant is a citizen of the People's Republic of China. She entered Australia on 21 December 1989 on a student's visa. Shortly after arriving in Australia, she formed a relationship with an Australian permanent resident, Mr Tsui Kei Mui. As a result of this relationship, she has given birth to two children. On 9 December 1990, the applicant gave birth to a son, John and on 12 May 1992, she gave birth to another son, Joey. However, Mr Mui is legally married to another woman and maintains two households, one with his wife and one with the applicant, John and Joey.
One would expect that the laws of an humanitarian nation such as Australia would permit the grant of a permit to enable the applicant to remain in Australia. It is easy to foresee the harm that would be caused if she were required to leave Australia. She would be separated from her children and Mr Mui, or if the children accompanied her, they would be separated from their father, or if he accompanied Chen and the children, he would be separated from his lawful wife. The two households are so tied together through Mr Mui that the applicant's removal from Australia would inevitably cause great disruption affecting both. And it is difficult to see what community purpose would be served by requiring her to leave, when it is not suggested that Mr Mui, his lawful wife, the children or the applicant are unsuitable for membership of the Australian society. Nevertheless, it is contended on behalf of the Minister for Immigration and Ethnic Affairs that there is no permit available to cover the applicant's circumstances.
An application for an entry permit, made after the birth of John on the basis that the applicant was "a special need relative" in relation to her son John, was refused. That decision was challenged unsuccessfully in this Court, before Jenkinson J. Judgment was handed down in that proceeding on 4 September 1992, Chen v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 501. At that time, reg. 127 of the Migration Regulations 1989 required that the status of "special need relative" should have resulted from "a death or permanent incapacitation". It was held that John's needs did not result from "a death or permanent incapacitation". His Honour also rejected a challenge to a refusal of a permit which had been sought on the ground that the applicant and Mr Mui had genuinely lived together on a domestic basis as spouses. His Honour held that the material before the decision-maker did not admit of an affirmative conclusion in that respect.
On September 1992, the applicant was arrested. A further application was lodged on her behalf on 25 September 1992. The applicant claimed that the birth of her second child, Joey, constituted a prescribed change in circumstances and that she was not precluded by s.37 of the Migration Act 1958 (Cth) from making a second application. I accept that contention.
Application was made for an "Extended eligibility (family) entry permit", the criteria for which were set out in reg. 127 of the Migration Regulations 1989. By then, the requirement of "a death or permanent incapacitation" had been removed from the Regulations. Regulation 127 relevantly read:-
"The following criteria are prescribed in relation to an extended eligibility (family) entry permit:
(a) at the time when the application for the entry permit is decided, the applicant:
...
(iii) is an aged dependent relative, remaining relative, special need relative or orphan relative in relation to a person in Australia who:
(A) is an Australian citizen; or
(B) is an Australian permanent resident who has been resident in Australia for a reasonable period; or ..."
The applicant claimed that she had become a "special need relative" in relation to Joey. Reg. 2(1) defined "special need relative" as follows:-
"'special need relative', in relation to an Australian citizen or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or
(ii) welfare, hospital, nursing or community services in Australia;"
The Minister's delegate considered that the requirement of "a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances" affecting the child personally or a member of his or her family unit, was not met in this case. The delegate accepted that a young child has a long term need for assistance. What was not accepted was that this need for assistance arose because of death, disability or prolonged illness or other serious circumstance. The normal needs of a child of Joey's age were thought not to amount to a "disability" or "other serious circumstance".
Counsel for the applicant, Mr S.J. Gageler, has submitted that the finding misconstrued the word "disability", a word which he said should be given its ordinary dictionary definition of "Lack of competent power, strength or physical or mental ability, or an incapacity". Mr Gageler also submitted that the facts of the case gave rise to a relevant serious circumstance. It was submitted that the definition should be given a broad and generous construction, and reference was made to the decision of Burchett J in Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418.
Mr Gageler also made reference to Australia's obligations under international law, in particular the United Nations' International Covenant on Civil and Political Rights and the Declaration of the Rights of the Child (1959), which are set out in Schedules 2 and 3 respectively of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Principle 6 of the Declaration of the Rights of the Child states inter alia:- =
"The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable." (emphasis added)
Principle 8 states:-
"The child shall in all circumstances be among the first to receive protection and relief."
Mr Gageler referred to cases such as Dietrich v. The Queen (1992) 177 CLR 292 and Chu Kheng Lim v. Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1. In the latter, Brennan, Deane and Dawson JJ stated at 38:-
"We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty". See e.g., Garland v. British Rail Engineering Ltd, (1983) 2 AC 751, at p 771; Attorney-General v. Guardian Newspapers Ltd (No.2), (1990) 1 AC 109, at p 283, per Lord Goff of Chievely; Derbyshire C.C. v. Times Newspapers Ltd., (1992) QB 770, at pp 811-812, 822-823, 829-830."
Similarly, in Ah Hin Teoh v. Minister of State for Immigration and Ethnic Affairs (Unreported, 14 April 1994) Black CJ stated at p 9:-
"The Convention does however form part of the general background against which decisions affecting children are made, in that it is a statement of what the international community, including Australia, regards as appropriate behaviour by nations with respect; to children within their jurisdiction. It reflects the standards to which Australia is seen by the international community to aspire as a mature and civilised nation. Those standards emphasise that special care should be taken when decisions are made that may profoundly affect the lives of young children by parting them from a parent and exposing their family to the risk of disintegration."
In this light, Mr Gageler submitted that the decision-maker's exercise of the power was so unreasonable that no reasonable person could have so exercised it. See Associated Provincial Picture Houses v. Wednesbury Corp (1948) 1 KB 223 at 229-33.
Counsel for the respondent, Ms R. Henderson, submitted that the legislature did not intend the ordinary situation of a parent and child to be encompassed by the term "special need relative". Ms Henderson contended that being a child was not in itself a disability and that the definition of "special need relative" is inapposite to describe the ordinary relationship between a mother and a healthy child and the ordinary needs of a child for the care, protection and upbringing of its parents.
As the submission was put by Ms Henderson, it seemed to me to have considerable force. Even now, after I have considered the matter, I still do not regard the words "need for assistance because of death, disability, prolonged illness or other serious circumstances" as bringing readily to mind the need which a young child has for the care and presence of its mother.
However, the words must be understood in the context in which they appear. It will be noted that the entry permit available to a "parent", whose entry into Australia is sponsored by the child or a person on behalf of the child, was not available to an illegal entrant present in Australia. Reg. 42(2) stipulates the following criteria for the grant of an entry permit in item 6 in Schedule 3, the parent permit:-
"(a) the visa is a valid visa; and
(b) the entry permit applied for is equivalent to the class of visa held by the applicant; and
(c) the Minister is satisfied that it would be consistent with the interests of Australia to grant the entry permit."
Inevitably, the applicant did not satisfy criteria (a), having entered Australia before she became a parent.
The permits available to persons such as the applicant who were present in Australia, were the extended eligibility entry permits, particularly the extended eligibility (spouse) entry permit outlined in reg.127. For present purposes, I may ignore reg. 126 as the issue whether the applicant was not a "spouse" due to the monogamous practice of Australian society is not before me.
Reg. 127 provided for the circumstances of "a dependent child", "an aged parent", "an aged dependent relative", a "remaining relative", a "special need relative", and an "orphan relative". In this context, it would be surprising if the relationship of parent to a young child were not encompassed.
If read widely, rather than restrictively, the definition of "special need relative" may encompass the relationship of parent and child, and so authorise the grant of a permit to a parent who is an illegal entrant in Australia, if the child in Australia has a need for the presence in Australia of that parent.
In Fuduche, Burchett J held that a wide reading of reg. 127 was appropriate. His Honour said at 430:-
"Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains."
In so reading the definition of "special need relative" in the context of reg. 127. In Fuduche, Burchett J said at 429-30:-
"It is appropriate to observe that the definition of 'special need relative' is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long-term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of 'special need', particularly as there cannot be a genus of medical conditions of the citizen or resident to be assisted, since the first condition is death.)"
Thus, a "serious circumstance" may be a circumstance not of a medical nature.
This being so, it would appear that it is sufficient for a circumstance to be "serious", that it is "weighty or important" (Macquarie Dictionary). The relationship between a young child and his or her parents, particularly the mother, is of course a weighty or important matter, as the Declaration of the Rights of the Child recognises.
Mr Gageler would say that this wider reading of the definition of "special need relative" in the context of reg. 127 gave an appropriate operation to the regulation. If reg. 127 were read otherwise, the regulation would authorise the grant of permits to aged parents or aged dependent relatives and orphan relatives but would not deal with the circumstance where there was a need for a parent to be with his or her child.
So to read reg. 127 and the definition would give the provision a wide operation. The 1989 regulations dispensed in general with discretions; there was no discretionary element in reg. 127. Section 34 of the Migration Act provided that, where it appears that the applicant was, under the regulations, entitled to be granted an entry permit of the class applied for, the Minister shall grant the entry permit. It would seem to follow that, if Mr Gageler's submissions were accepted, mothers who gave birth to a child in Australia would in general, if the father were an Australian citizen or a permanent resident, be entitled to an entry permit as special need relatives. Section 10(2) of the Australian Citizen Act 1948 (Cth) provides that a person born in Australia shall be an Australian citizen if a parent of the person was an Australian citizen or a permanent resident. In the present case, it appears that Mr Mui was a permanent resident and that John and Joey are Australian citizens.
Nevertheless, the requirement in reg. 127 that the relative in Australia who has the need shall be an Australian citizen or an Australian permanent resident who has been resident in Australia for a reasonable period necessarily provides the rationale why it may be in the interests of Australia that a "special need relative" provide assistance. Other provisions of the regulations do not exclude a wide reading of reg. 127. Part 3 of Schedule 2 to the regulations provided for a visa for a parent who satisfied certain criteria and also for a preferential family visa which covered aged dependent relatives, orphan relatives, remaining relatives and special need relatives, who satisfied like criteria, omitting the balance of family test. It would not seem inconsistent with such provisions that a parent could be considered as a special need relative if a special need for the presence in Australia of the parent existed. Indeed the term "relative" is defined by reg. 2 to include a parent.
The interpretation is a difficult one. However, after consideration, I have come to the view that the wider reading of reg. 127 and of the definition of "special need relative" for which Mr Gageler contended should be adopted and, therefore, that the delegate of the Minister erred in law in the interpretation of the regulation.
Ms Henderson submitted that Joey's need for assistance could reasonably be obtained from either Mr Mui's wife or from community services in Australia. I reject that submission for the reasons stated by Black CJ in Ah Hin Teoh. The relationship between children and their parents, particularly the relationship between a child of tender years and the mother is a special one, as is universally recognised. See the Declaration of The Rights of The Child.
Ms Henderson further submitted that, under the definition, "assistance" is not assistance which is special as between the citizen or resident and the relative. Ms Henderson referred to the remarks of Jenkinson J in Chen at 504. His Honour's remarks were, in my opinion, misunderstood. It is clear that the definition looks to care and assistance which a particular relative may be able to provide and which cannot reasonably be obtained from persons in Australia. Fuduche is a prime example of the special need which an Australian resident had for the presence of her brother, a need which no one in Australia could fulfil.
For the reasons I have given, I am of the view that the delegate misconstrued reg. 127 and the definition of "special need relative". His decision will therefore be set aside and the matter will be remitted for reconsideration in accordance with the direction that the applicant is a "special need relative" in relation to her son Joey. The respondent should pay the costs of the proceedings.
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