Cole v MIBP

Case [2018] FCAFC 66

FEDERAL COURT OF AUSTRALIA

Cole v Minister for Immigration and Border Protection [2018] FCAFC 66  

Appeal from: Cole v Minister for Immigration & Anor [2017] FCCA 2234
File number: WAD 482 of 2017
Judges: MCKERRACHER, BARKER AND RANGIAH JJ
Date of judgment: 1 May 2018
Catchwords:

MIGRATION – Child (Residence) (Class BT) visa - appeal from the Federal Circuit Court – where “incapacity for work” in regulation 1.03 of the Migration Regulations 1994 (Cth) was construed by the primary judge as requiring total incapacity – whether “incapacity for work” encompasses total or substantial incapacity – whether incapacity for work ought to be assessed by the application of a two-stage process

STATUTORY INTERPRETATION – consideration of the meaning of “incapacity for work” pursuant to regulation 1.03(b)(ii) for the purposes of assessing dependency and whether the appellant constituted a “dependent child” – consideration of extrinsic material where ambiguity – words “incapacitated” and “incapacitated for work” and “dependent” and “dependent child”

Held:  appeal allowed

Legislation:

Acts Interpretation Act 1901 (Cth) s 15AB

Disability Discrimination Act 1992 (Cth) s 4(1)

Legislation Act 2003 Act 2003 (Cth) s 13(1)(a)

Migration Act 1958 (Cth)

Social Security Act 1947 (Cth) s 23

Migration Regulations 1994 (Cth) regs 1.03(b)(ii), 1.05A, 1.05A(1), cll 101.213(2), 802.212, 802.214, 802.221
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Annas v Director‑General of Social Security (1985) 8 FCR 49

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Byrnes v Kendle (2011) 243 CLR 253

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240

Gardner Smith Pty Ltd v Collector of Customs, Victoria (1996) 66 ALR 377

Huynh v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 576

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Panke and Director‑General of Social Services (1981) 4 ALD 179

Wilson v State Rail Authority (NSW) (2010) 78 NSWLR 704

Date of hearing: 14 February 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Appellant: Mr DV Blades
Solicitor for the Appellant: Putt Legal
Counsel for the First Respondent: Mr PR Macliver
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, subject to the question of costs

ORDERS

WAD 482 of 2017
BETWEEN:

JODIE COLE

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

MCKERRACHER, BARKER AND RANGIAH JJ

DATE OF ORDER:

1 MAY 2018

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The first respondent pay the appellant’s costs, to be assessed if not agreed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal…

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AGLC
Cole v Minister for Immigration and Border Protection [2018] FCAFC 66
Case
[2018] FCAFC 66
Decision Date

CaseChat Overview and Summary

In the case of Cole v MIBP, the appellant, Ms Cole, sought review of a decision by the Administrative Appeals Tribunal which affirmed a delegate’s decision not to grant her a Child (Residence) (Class BT) visa. The central issue in the case was whether Ms Cole met the definition of a “dependent child” under regulation 1.03(b)(ii) of the Migration Regulations, specifically whether she was “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions”. Additionally, the case examined whether the tribunal correctly applied a two-stage process in assessing Ms Cole's incapacity for work.

The Federal Circuit Court was tasked with determining whether the Tribunal had correctly interpreted regulation 1.03(b)(ii) and applied the appropriate legal principles in assessing Ms Cole’s incapacity for work. The court found that the Tribunal had misconstrued the regulation by requiring total incapacity rather than substantial incapacity. The court held that the term “incapacity for work” should encompass substantial incapacity, not just total incapacity. Furthermore, the court found that the Tribunal failed to adopt the two-stage process for assessing incapacity for work as established in relevant case law.

The Full Court allowed the appeal, holding that the Tribunal had erred in its interpretation of the regulation and in its application of the two-stage process. The court found that Ms Cole was indeed incapacitated for work to a substantial degree, thereby qualifying her as a dependent child under the relevant regulation. The Full Court ordered that the appeal be allowed and that the first respondent pay the appellant’s costs, to be assessed if not agreed.

Orders

Orders of the court

1. The appeal be allowed.

2. The first respondent pay the appellant’s costs, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, we reach a different view from the primary judge as to the meaning of “incapacitated for work”. We also accept Ms Cole’s contention that there was a relevant failure to adopt a two-stage process in application of the test. BACKGROUND Ms Cole is a British citizen, born on 24 May 1993. She arrived in Australia on 15 February 2013 on a Subclass TZ417 Working Holiday visa, granted on 2 February 2013. On 13 February 2014, Ms Cole applied for a Child (Residence) (Class BT) Subclass 802 visa (Child visa). She was sponsored by her father. At the time of the application, Ms Cole was 20 years old. On 24 October 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the Child visa to Ms Cole as the delegate was not satisfied that Ms Cole had a medical condition that met the definition of being “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions” under reg 1.03(b)(ii) of the definition of “dependent child” in the Migration Regulations. The rejection was based on the finding of the Medical Officer of the Commonwealth that Ms Cole was not incapacitated for work. On 4 November 2014, Ms Cole applied to the Migration Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. BEFORE THE TRIBUNAL The Tribunal invited Ms Cole to appear before it on 21 April 2015 to give evidence and present arguments relating to the issues arising in her case. On 14 April 2015, her migration agent provided a written submission to the Tribunal in support of Ms Cole’s claims, together with supporting documents. A week later, Ms Cole appeared, as invited, before the Tribunal to give evidence and present arguments. Additionally, her parents gave evidence. On 19 May 2015, her father provided further information to the Tribunal. Additional documents were also provided on 29 May 2015. On 2 June 2015, the Tribunal affirmed the delegate’s decision not to grant Ms Cole a Child visa. BEFORE THE FEDERAL CIRCUIT COURT By re-amended application filed 23 March 2016, Ms Cole sought review of the Tribunal’s decision in the Federal Circuit Court. The grounds before the Federal Circuit Court, were:1.The Tribunal made a jurisdictional error by misconstruing Regulation 1.03(b)(ii) of the [Migration Regulations] and failing to correctly apply it to [Ms Cole’s] circumstances on 2 June 2015 [particulars were provided].2.The Tribunal failed to correctly apply the two-stage process of approaching “incapacity for work” based on the decision handed down by the Federal Court of Australia in Annas v Director-General of Social Security [(1985) 8 FCR 49] which adopted the principles in Re Panke and Director-General of Social Services [1981] AATA 65 [particulars were provided].3.The Tribunal made a jurisdictional error by failing to consider whether clause 802.212 of the [Migration Regulations] was satisfied in respect of [Ms Cole’s] application for [a Child visa] [particulars were provided].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Relevantly, cl 802.221 of the Migration Regulations, found in Sch 2 of the Migration Regulations, provided at the date of the Tribunal’s decision, and continues to provide as follows:802.22 – Criteria to be satisfied at time of decision802.221(1) …(2) In the case of an applicant who had turned 18 at the time of application:(a) the applicant:(i)continues to satisfy the criterion in clause 802.212; or(ii)does not continue to satisfy that criterion only because the applicant has turned 25; and(b)the applicant continues to satisfy the criterion in clause 802.214. Clauses 802.212 and 802.214 of the Migration Regulations in relation to criteria to be satisfied at the time of application provide:802.212(1) The applicant:(a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and(b)subject to subclause (2), has not turned 25.(1A) ...(2) ……802.214(1) If the applicant has turned 18:i. (a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. (2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The expression “dependent child” is defined in reg 1.03 of the Migration Regulations as:dependent child, of a person, means the child, or step-child of the person (otherthan a child who is engaged to be married or has a spouse or de facto partner),being a child who:(a) has not turned 18; or(b) has turned 18 and:(i) is dependent on that person; or(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The term “dependent” is also separately defined in reg 1.05A as follows:1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.…GROUNDS OF APPEALGround 1 – whether the Tribunal misconstrued reg 1.03(b)(ii) of the Migration Regulations

Ratio Decidendi

Legal Principle Established

The Minister also adopts the primary judge’s reasoning (at [27]-[29]), where his Honour said:27. Ms Cole’s suggestion that the meaning of “dependent child” in reg.1.03(b)(ii) of the Migration Regulations imports the definition of “dependent” in reg.1.05A of the Migration Regulations is, in part, correct. It is true to say that the concept of being a “dependent child” as defined in reg.1.05A of the Migration Regulations is imported into reg.1.03 of the Migration Regulations, but only in a limited way, and not so as to impact upon a “dependent child” who is “incapacitated for work”. That is because reg.1.03 of the Migration Regulations sets up three different categories of dependent child, namely a child who has:a)firstly, not yet turned 18: Migration Regulations, reg.1.03(a);b)secondly, turned 18 and is “dependent” on the person of whom they are a “child”: Migration Regulations, reg.1.03(b)(i); andc)thirdly, turned 18, and is “incapacitated for work”: Migration Regulations, reg.1.03(b)(ii).Although not articulated in the manner set up above, the three different categories are implicit in the observations of a majority of the Full Court of the Federal Court in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122; (2006) 152 FCR 576 (“Huynh”) at [27] and [31] per Lander and Rares JJ.28. Each of the above categories is discrete because of the use of the disjunctive “or” between paragraphs (a) and (b) of reg.1.03 of the Migration Regulations, and also between placitas (i) and (ii) of paragraph (b) of reg.1.03 of the Migration Regulations: Re Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 241 IR 472; (2014) 285 FLR 416 at [13] per Judge Lucev.29. The bifurcated definition of “dependent child” for children who have turned 18 as set out in reg.1.03(b) of the Migration Regulations imports different requirements in respect of the two different categories of “dependent child” over the age of 18. That part of the definition of “dependent child” which appears in reg.1.03(b)(i) of the Migration Regulations demonstrates why it is that the definition of “dependent” is not imported into reg.1.03 of the Migration Regulations as a whole. That is because the Parliament has specifically seen the need to define “dependent child” in the second category by specifically relying upon the child being a “dependent”, which can only be a dependent as defined in reg.1.05A of the Migration Regulations: Huynh at [31] per Lander and Rares JJ, and from which it can be implied that the Parliament did not intend to otherwise import the definition of “dependent” into the phrase “dependent child” generally, or for the purposes of the other two categories of “dependent child” established by reg.1.03 of the Migration Regulations under reg.1.03(a) and (b)(ii) of the Migration Regulations.(emphasis added)