Claridge v MIBP
[2013] FCCA 1953
•6 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARIDGE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1953 |
| Catchwords: MIGRATION – Application for review of Migration Review Tribunal decision – does “brother” in regulation 1.15(2) of the Migration Regulations 1994 include a half-brother – whether Mercado v Minister for Immigration and Citizenship [2007] FMCA 1216 wrongly decided – Mercado not wrongly decided – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.350(1) Migration Regulations 1994 (Cth), reg.1.15(2) Macquarie Dictionary |
| Mercado v Minister for Immigration and Anor [2007] FMCA 1216 Liang v Minister for Immigration [2007] FMCA 1288 Grieves v Rawley (1852) 22 LJ Ch 625 |
| Applicant: | JAMES EDWARD CLARIDGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 483 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ryan |
| Solicitors for the Applicant: | David J. Ryan |
| Counsel for the First Respondent: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 483 of 2013
| JAMES EDWARD CLARIDGE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The review applicant, Mr Claridge, seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 12 March 2013. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the visa applicant an Other Family (Migrant) (Class BO) visa. The visa applicant is the daughter of Mr Claridge’s wife.
As it happens, this case turns on a very refined point, namely whether the word “brother” contained in reg.1.15(2) of the Migration Regulations 1994 (“the Regulations”) includes or does not include a half-brother. Both parties agree that the determination of this issue will determine the outcome of the application.
For the reasons that follow, and with regret, I am of the view that the word “brother” does include a half-brother, and the application must accordingly be dismissed.
Some uncontroversial background facts
The visa applicant, Ms Charisse Palapar, is the only child of the marriage between her mother, Segundina Salie Claridge, and her father, Errol Palapar (who had a number of other aliases). Ms Palapar’s father deserted her mother very shortly after her birth, in 1984, and nothing has been heard of him since 1986. Ms Palapar has never had any communication of any sort from her father. Mr Palapar was declared presumptively dead in the Philippines in 2008.
Ms Palapar’s mother married Mr Claridge, following the declaration as to Mr Palapar’s death, on 1 August 2009.
The visa applicant applied for a Class BO (Remaining Relative Other Family) visa on 14 February 2011. Subsequent enquiries purported to reveal that her father had three other children, two of whom were boys and one a girl, all born well after Ms Palapar in circumstances where it would seem highly probable that her father had bigamously remarried the mother of those children. The applicant had had no contact with those half-siblings and was unaware of their existence until the enquiries by the first respondent’s officers indicated their existence.
It should be noted that while there was a significant issue before the Tribunal as to whether or not the three half-siblings were indeed children of the visa applicant’s father, counsel for Ms Palapar expressly conceded that the assertion they are indeed half-siblings is not challenged in this application.
The relevant regulation and the issue the Court has to decide
Reg.1.15 in its current form (which has subsisted since 2005) is as follows:
“(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and
b)the other person is usually resident in Australia; and
c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
i) usually resident in Australia; and
ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens…
(2) In this regulation:
near relative, in relation to an applicant, means a person who is:
a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any)…”
The issue the Court is required to decide is whether the phrase brother (or, by inference, sister) in sub-regulation 1.15(2) extends to cover the half-siblings who appear to have been unearthed, who undoubtedly live in the Philippines.
Put shortly, the applicant says that the phrase “brother” does not include a half-brother, and the first respondent says that it does.
The Tribunal’s decision
The Tribunal’s decision runs from Court Book (“CB”) 153-166. It is not necessary to traverse these reasons in detail as the issue before the Court is so confined. I note that the Tribunal accepted that the visa applicant’s father is presumptively dead (paragraph 23, CB 157)
The Tribunal noted that the Department had advised the visa applicant by letter dated 2 August 2011 that it had received birth certificates of her three half-siblings, and that the visa applicant had responded stating that she was unaware of the siblings until she received the Department’s advice. She maintained that position before the Tribunal (paragraphs 25-27, CB 158).
A substantial portion of the Tribunal’s reasons relate to the question as to whether the three half-siblings were indeed half-siblings, and the Tribunal found the visa applicant’s father was the father of the three half-siblings (paragraph 48, CB 164). The Tribunal also found at paragraph 49:
“The Tribunal found the witnesses to be credible and it does not doubt that the visa applicant and her mother were not aware that Mr Palapar had fathered other children. This Tribunal acknowledges that this information has caused them considerable distress. However the relevant legislation makes no reference to the requirement for the visa applicant to be aware of, or have contact with, her near relatives. The fact that the visa applicant had no knowledge of her half siblings does not negate their existence. Accordingly, the tribunal finds that the half-siblings are near relatives of the visa applicant.”
The Tribunal went on to find (once again, there is no challenge to this finding) that the three half-siblings were alive (paragraph 51, CB 164).
It is clear that the Tribunal was in large part moved to its conclusions by the case of Mercado v Minister for Immigration and Anor [2007] FMCA 1216. The argument before this Court largely concerned the correctness and/or applicability of Mercado to this case.
The decision in Mercado’s case
Mercado involved a consideration of reg.1.15 in a different antecedent form. The regulation relevantly read:
“(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen … if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c)if the applicant or the applicant’s spouse (if any) has an overseas near relative:
(i) the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
(ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application…”
The rest of the sub-regulation is in part slightly different, but not relevantly so.
In Mercado, both advocates referred to this scheme, the legislation and its terms, dictionary definitions, and made opposing submissions as to whether the meaning of the word in the statute, namely “brother”, was a question of fact or a question of law.
I do not propose to set out the entirety of the decision in Mercado, although I have had regard to all of it. At [31], Lloyd Jones FM, as his Honour then was, said:
“…I accept the submission that the term “brother” is not defined in the Act and not otherwise referred to. Both Counsel referred to extrinsic material to aid interpretation but that material was not persuasive. Similarly, no reference was made to any Parliamentary Explanatory Memoranda or Reading Speeches in respect of the Act or Regulations addressing this issue.”
Having referred to the Macquarie Dictionary definition of “relative”, the decisive part of the judgment is at [33], where his Honour stated:
“The half-brother relationship is permanent because of the genetic link whereas a step relationship is by its nature more transient and certainly not permanent. Further, I accept the submission made by Mr Lloyd that there is no apparent policy reason why a half-brother would be excluded from the definition while a step-brother would be treated more favourably. The denial of the reunion of a bloody (sic) relative, while permitting a reunion based on marriage which may be dissolved at any time, does not appear compatible with the overall intent of the legislation. In the circumstance, I am satisfied that in the absence of direct reference to the status of “half-brother” in the Act or Regulations, the approach adopted by the Tribunal was correct. Consequently, the application should be dismissed.”
The applicant’s arguments about Mercado
First, the applicant submitted that the different terms of the regulation that was under consideration in Mercado meant that the case was distinguishable. I can say straight away that I do not accept this submission. The differences in the regulation, while going close to being more favourable to the applicant than the present verbiage, are not materially different. The aspects of the regulation with which this Court is concerned are exactly the same now as they were at the time Mercado’s case was decided.
The next submission made by the applicant was that the Court failed to give the word “brother” its normal meaning. Counsel referred to the dictionary definitions set out in written submissions (see paragraphs 25 and 26) and pointed to the fact that the primary definition in the Macquarie Dictionary definition is “a male child of the same parents as another (full brother or brother-german)”. The secondary definition was submitted to be “a male child of only one of one’s parents (half-brother)”.
It was submitted that, as recorded in paragraphs 27-28 of the written submissions:
“27. The Oxford and Macquarie dictionaries, though using different words agree that the primary or ‘proper’ meaning of ‘brother’ is a man or boy in relation to other sons and daughters of his parents. The Macquarie Dictionary includes among its secondary or extended meanings ‘a male child of only one of one’s parents (half-brother)’. However, those secondary meanings are wide enough to include a male member of the same profession (as in ‘brother Judges’) or a fellow countryman.
28. In ordinary or general usage, the words ‘brother’ and ‘sister’ are commonly understood as having the primary meanings assigned to them by both dictionaries and not the extended meanings which the Tribunal gave to them in the present case...”
It was strongly submitted that the Tribunal, and by extension, the decision in Mercado, had no proper regard to the meaning of “brother” in the normal, everyday usage.
It was further submitted that Mercado’s case gave undue weight to the history of the visa application. Reference was made to matters recorded at [6], [11] and [32] of the judgment.
Nonetheless, I do not accept this aspect of the criticism made. The references to the history of the matter are no more than a recitation, in my view, and had no operation in the Court’s conclusions.
Respondent’s submissions about Mercado
The first respondent’s submissions can be put shortly. Counsel submitted that the distinction sought to be drawn from the differing form of the regulations was illusory, and that is a submission, as I have indicated, that I accept. It was also further submitted that Mercado was not clearly wrong and was in fact correctly decided.
Other submissions made by the applicant
The applicant, in addition to submissions about Mercado, pointed to the fact that the case of Liang v Minister for Immigration [2007] FMCA 1288, relied upon by the first respondent’s written submissions, did not take the matter further, and I am prepared to accept that the throwaway remarks of Riethmuller FM, as his Honour then was, in Liang at [28] were made in a different context and without any deliberation. It can properly be said that Riethmuller FM was not, so to speak, repelled by the reasoning in Mercado, but the matter goes no further than that.
Counsel further submitted that this matter has taken a very long time to be determined, and submitted that in the event the applicant was successful I should direct the Minister to grant a visa. Counsel for the first respondent strongly opposed that course of action, and it is sufficient to say that I do not regard myself as having any powers beyond those to either quash or not quash the decision and to remit it to be determined according to law.
Finally, the applicant’s counsel submitted that if the applicant was unsuccessful, there should be no costs order against her. He referred to the lengthy delay and stress that this had given rise to in the overall conduct of the proceeding.
Consideration
In these circumstances, it is absolutely undoubted that the Court’s first task is to decide whether the decision of Judge Lloyd Jones in Mercado was clearly wrong. In my view, it was not. It is a decision of this Court directly on point. While minds might disagree as to the construction of the word “brother” in reg.1.15, for my part, I am persuaded by the reasoning at [33] in Mercado. It would seem illogical to exclude a half-sibling when a step-sibling is included. The matter, however, goes further than that.
I have consulted The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) (which might perhaps be described as the longer Oxford English Dictionary). In that work, the learned authors relevantly define the word to signify:
“1. The word applied to a male being to express his relationship to others (male or female) as the child of the same parent or parents…
a. properly. The son of the same parents. But often extended to include one who has either parent in common with another (more strictly called half-brother, or brother of the half blood)…”
That entry does receive support from some admittedly relatively old authority. Stroud’s Judicial Dictionary of Words and Phrases Judicially Interpreted (Sweet & Maxwell, 8th ed, 2012) defines the following:
“BROTHER: SISTER. - A gift to “Brothers;” “Sisters,” - includes the half-blood; “and so with regard to every other degree of relationship” (2 Jarm. 154). “I think that, in general, when a man speaks of his brothers and sisters he speaks of them, not with reference to the definition of the word in the dictionary, but as a class standing in the same relation to one or both of his parents in which he himself stands. Though the half-blood are not descended from both the same parents, they are, - as it is said in Les Termes de la Ley, p. 123, tit. Demy Sangue, - ‘after a sort, brothers,’ ‘brothers by the father’s side,’ ‘brothers by one mother;’ and however others might describe them or they might designate themselves, I think that, if required to give a precise description of the nature and degree of the relation subsisting between them, they, in ordinary parlance, would be called and would call themselves, Brothers and Sisters” (per Turner, V.C., Grieves v Rawley, 22 L.J. Ch. 625; 10 Hare, 68). But this construction may be varied by a context (Re Reed, 57 L.J. Ch. 790; 36 W.R. 682).”
An examination of the actual decision in Grieves v Rawley shows his Lordship’s remarks to be less clear than the extract in Stoud, but this relatively old authority (1852) at the very least suggests that the ordinary meaning of the word ‘brother’ would include a half-brother. There has not been so far as I can find any further judicial consideration of this phrase since Turner V.C.’s observations.
While the meaning to be ascribed to words may change from time to time and in different contexts (Elizabeth Darcy famously refers to her detested brother-in-law Mr Wickham as “brother” in Pride and Prejudice), the fact is that there is judicial authority of some antiquity supporting the decision in Mercado and the conclusions reached by Lloyd Jones FM, as he then was.
In the circumstances I am obliged to follow Mercado which, with respect, I think was rightly decided for the reasons his Honour gave at [33].
Conclusion
Both parties addressed the Court on the implicit assumption that if I was constrained to follow Mercado the visa applicant must be unsuccessful in her case and in the circumstances I will order that the application be dismissed with costs and change the name of the first respondent.
Ministerial intervention
The conclusion I have reached as to the proper construction of the regulation is one of which I have no doubt. Equally, however, I have no doubt that this is a terribly unfortunate and unjust outcome. On any view of the matter the visa applicant is living alone in the Philippines. Her only relatives (making every assumption against her that they are indeed her relatives) are people she does not know, has never met and in all probability will never meet. There is nothing to suggest that they will be of any assistance to her and it would seem more probable than otherwise that if she came to their attention, the half-siblings’ response would be filled with distress as the applicant’s was.
While the meaning of the regulations and their application to the circumstances of the visa applicant are clear, this is a case in which I would earnestly hope that the first respondent would be moved to exercise the discretion available pursuant to s.350(1) of the Migration Act 1958 favourably to the applicant. No doubt the applicant will bring this judgment to the attention of the first respondent in the event that the Minister’s officers do not do so.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 6 December 2013
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