Cole v Minister for Immigration
[2017] FCCA 2234
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLE v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2234 |
| Catchwords: STATUTES – Interpretation – principles. WORDS AND PHRASES – “incapacitated” –“incapacitated for work” – “dependent” – “dependent child” – “and” – “or’. |
| Legislation: Disability Discrimination Act 1992 (Cth) Migration Act 1958 (Cth), ss.4, 48, 65, 476 Migration Amendment Regulations 1999 (No 13) |
| Cases cited: Annas v Director-General of Social Security (1985) 8 FCR 49; (1985) 63 ALR 444; (1985) 8 ALD 520 Case Number 1305343 [2013] MRTA 3533 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1; (2003) 77 ALJR 1893; (2003) 201 ALR 414; [2003] ATPR 41-952 |
| O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” [2012] 86 ALJ 478 M Kirby, “Statutory Interpretation: The Meaning of Meaning” (2011) 35 MULR 113 |
| Applicant: | JODIE COLE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 292 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 April 2017 |
| Date of Last Submission: | 27 April 2017 |
| Delivered at: | Perth |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr DV Blades |
| Solicitors for the Applicant: | Putt Legal |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed on 1 July 2015, as amended on 11 November 2015 and 23 March 2016, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 292 of 2015
| JODIE COLE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) which seeks judicial review (“Judicial Review Application”) of a decision by the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), made on 2 June 2015 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant, Ms Jodie Cole (“Ms Cole”), a Child (Residence) (Class BT) visa (“Child Residence Visa”).
The Tribunal Decision appears at Court Book (“CB”) 360-366.
Factual and procedural background
The factual and procedural background to the time of the Tribunal Decision is as follows:
a)Ms Cole is a British citizen who was born on 24 May 1993: CB 2 and 53-54;
b)on 15 February 2013 Ms Cole arrived in Australia on a Subclass TZ 417 Working Holiday visa (“Working Holiday Visa”) granted on 2 February 2013: CB 186;
c)on 13 February 2014 Ms Cole made an application for the Child Residence Visa, and was sponsored by her father. At the time of the application Ms Cole was 20 years old: CB 1-30;
d)on 24 October 2014 the Delegate’s Decision was to not grant the Child Residence Visa to Ms Cole on the basis that 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 the definition of “dependent child” in reg.1.03(b)(ii) of the Migration Regulations1994 (Cth) (“Migration Regulations”): CB 156-162;
e)the Delegate's lack of satisfaction was based principally on the finding of a Medical Officer of the Commonwealth (“MOC”) that Ms Cole was not incapacitated for work: CB 161-162;
f)on 4 November 2014 Ms Cole applied to the Tribunal for review of the Delegate’s Decision: CB 175-176;
g)on 17 February 2015 the Tribunal invited Ms Cole to appear before the Tribunal on 21 April 2015 to give evidence and present arguments relating to the issues arising in her case: CB 189-191;
h)on 14 April 2015 Ms Cole's migration agent provided a written submission to the Tribunal in support of her claims, together with supporting documents: CB 199-261;
i)on 21 April 2015 Ms Cole attended a hearing before the Tribunal to give evidence and present arguments (“Tribunal Hearing”). Oral evidence was also given by Ms Cole’s parents: CB 351-353 and 361;
j)on 19 May 2015 Ms Cole's father provided further information to the Tribunal, and additional documents were provided on 29 May 2015: CB 266-300 and 301-350; and
k)on 2 June 2015 the Tribunal Decision affirmed the Delegate’s Decision not to grant Ms Cole a Child Residence Visa: CB 360.
Judicial Review Application
The Judicial Review Application was filed on 1 July 2015.
On 16 September 2015 a Registrar of this Court ordered, amongst other things, that Ms Cole file and serve on or before 11 November 2015 any amended Judicial Review Application giving particulars of the grounds of review and any affidavits upon which she intended to rely at hearing.
On 11 November 2015 Ms Cole filed and served an amended Judicial Review Application which included an additional third ground of application.
On 23 March 2016 Ms Cole filed and served a re-amended Judicial Review Application (“Re-Amended Judicial Review Application”).
The three grounds of the Re-Amended Judicial Review Application are set out below: ground 1 at [18], ground 2 at [35] and ground 3 at [42].
Tribunal Decision
In the Tribunal Decision the Tribunal set out the Child Residence Visa criteria: CB 361-362 at [8]-[13], and the evidence, particularly as it related to Ms Cole’s medical status and prior employment: CB 362-363 at [14]-[22]. The Tribunal then said as follows at CB 363-364 at [23]-[31]:
23. The tribunal has closely considered the evidence but is not satisfied that the applicant was and is incapacitated for work because of loss of bodily or mental functions. The tribunal accepts the medical evidence that the applicant has depression and PTSD due to childhood trauma. However, the evidence is clear that the applicant has had significant periods of employment both prior to and after her arrival in Australia. This evidence does not lend weight to the claim that she is incapacitated for work due to illness. To the contrary it suggests that the applicant has some capacity to engage in work.
24. The tribunal accepts that the applicant’s psychological conditions identified by the medical evidence can impact adversely on the ability of the applicant to work and may also at time, cause or lead to her being incapacitated temporarily for work. However, the evidence also shows that her illness does not cause permanent incapacity for work. This is evidenced from her work from 2010-2012 in the UK and her further 6 months of employment in Australia. The tribunal also notes that the applicant was employed up to 16 April, which was the week prior to the tribunal hearing.
25. The tribunal considers that the Act requires incapacitation such that a person cannot work. It does not stipulate that a person is incapacitated from full time work and the tribunal does not import this particular meaning. The applicant has clearly worked part time over 6 months since entering Australia and this evidence does not support her claim to be incapacitated for work. This is so notwithstanding that she had some sick days and ongoing medical issues.
26. The tribunal notes the opinion of John Perera (20 February 2015) that the applicant should not work full time until she addresses the psychological concerns and to gradually work part time once she progresses in therapy. Carol Black in her report of 24 August 2014 stated that the applicant should be able to look for casual employment up to 15 hours per week in the next 6 - 12 months, and subsequently move to increased hours and more permanent options. The 2014 opinion of Carol Black is that the applicant should, in the context of ongoing employment, be working casually and increasing her work hours and options as of February 2015. The tribunal has considered the opinion of John Perera that the applicant should not work full time until she progresses in therapy. The tribunal is not satisfied from either opinion that the applicant, at the time of decision, is incapacitated for work. These opinions suggest the applicant has capacity to work so long as she is progressing in therapy. There is no evidence to the tribunal that the applicant is not progressing in therapy and the tribunal has no reason based on this evidence to consider that she would not be progressing in her therapy and treatment.
27. The tribunal also notes a recent letter from Dr Merv Coyle (14/05/15), a medical practitioner who states that the applicant is incapacitated for work due to her mental condition and will remain so until her mental issues are resolved. Dr Coyle does not state how long he has been treating the applicant for, although he does state that she was recently seeing John Perera.
28. The tribunal has considered Dr Coyle's opinion but is not satisfied on this opinion, in view of the advice of John Perera and Carol Black and the applicant's own history of employment in both the UK and Australia (for a significant period of 6 months and including up to the week before the tribunal hearing) that she is incapacitated for work due to loss of mental functions.
29. In view of this evidence, the tribunal is not satisfied that the applicant was at the time of application on 13 February 2014, and at the time of decision, incapacitated for work due to loss of bodily or mental functions.
30. Accordingly, cl.802.214 is not met at the time of application, and does not continue to be met at the time of decision.
31. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
For the above reasons the Tribunal affirmed the Delegate’s Decision: CB 365-367 at [32].
Consideration
Statutory framework
Relevantly, cl.802.221 of Sch.2 to the Migration Regulations provides as follows in relation to the criteria to be satisfied at the time of the Tribunal Decision:
(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 cl.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 cl.802.214.
Clauses 802.212 and 802.214 of Sch.2 to 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.
802.214
(1) If the applicant has turned 18:
(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 (other than 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 separately defined in reg.1.05A(1) of the Migration Regulations as follows:
(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.
Regulation 1.05A(2) of the Migration Regulations is not relevant for present purposes.
Interpretation of legislation – principles
The basic principles in relation to the interpretation of legislation include the following:
a)that the correct starting point for analysis is the text of the legislation, and not judicial statements of what the common law is, or judicial elaborations or glosses on the statutory provisions: Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1; (2003) 77 ALJR 1893; (2003) 201 ALR 414; [2003] ATPR 41-952 at [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ, subject to the following qualifications:
i)judgments of the Federal Court which are on point, not distinguishable and not plainly wrong are binding on this Court. In Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”) a Full Court of the Federal Court observed that:
Even if the Federal Magistrate [now Federal Circuit Court Judge] was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court [now the Federal Circuit Court of Australia] and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong.
ii)in Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ (“Suh”) another Full Court of the Federal Court observed that a Federal Magistrate was correct to regard herself as bound by an earlier Federal Court judgment, and went on to observe that:
That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer.
iii)following an erudite examination of relevant authority (including Suh and SZANS cited above) one learned author has observed as follows:
It follows that a decision of the single judge or the Full Court of the Federal Court is always binding on the … [Federal Circuit Court of Australia], regardless of the capacity in which it was given. Further, a decision of the Full Court should always be followed in preference to a decision of a single judge, even if the latter alone was on appeal from the … [Federal Circuit Court of Australia]. This is because the Full Court could in another case be hearing an appeal from the single judge or the … [Federal Circuit Court of Australia] itself. That is, in its other capacities, the same court would prevail over the single judge or … [Federal Circuit Court of Australia]. Accordingly, it must be followed at all time.
O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” [2012] 86 ALJ 478 at 483 (“Jones”); and
iv)this Court is also generally bound by authoritative obiter of the Federal Court, irrespective of the capacity in which it is pronounced by the Federal Court: Jones at 484; Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev;
b)that statutory words should not be considered in isolation, and to derive meaning from the text, and to fulfil the purpose of Parliament, what is required is that the meaning of the words be derived from the legislative context in which the words appear, and thus an examination of the relevant phrase, sentence, often the paragraph, and other immediately surrounding provisions, in the context of the statute as a whole: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; (1996) 71 ALJR 123; (1996) 35 ATR 249; (1996) 24 AAR 282; (1996) 141 ALR 59; (1996) 43 ALD 193; (1996) 96 ATC 5240; CLR at 396-397 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, where the High Court observed that:
The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.
c)that giving effect to the purpose of Parliament as expressed in the text of statutory provisions is the overall objective of statutory construction: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490; CLR at [69] per McHugh, Gummow, Kirby and Hayne JJ.
The modern task of statutory interpretation thus “requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question”: M Kirby, “Statutory Interpretation: The Meaning of Meaning” (2011) 35 MULR 113 at 117.
Ground 1 – jurisdictional error by misconstruing and failing to correctly apply reg.1.03(b)(ii) of the Migration Regulations
Ground 1 is that the Tribunal made a jurisdictional error by misconstruing reg.1.03(b)(ii) of the Migration Regulations and failing to correctly apply it to Ms Cole's circumstances on 2 June 2015. The particulars to ground 1 are as follows:
a) Reg. 1.03(b)(ii) relevantly defines “dependent child” as a child who is “incapacitated for work due to the total or partial loss of the child's bodily or mental functions.”
b) The Tribunal stated at [23] of its Statement of Decision and Reasons that it was not satisfied that the Applicant “is incapacitated for work because of loss of bodily or mental functions.”
c) The Tribunal at [17] noted the opinions of:
(i) John Perera (dated 20/02/2015), that the Applicant “should not work full time until she addresses her psychological concerns and then she should gradually engage in part time work once she progresses in therapy.”
(ii) Carol Black (dated 03/07/2013, and 23/01/2014), that the Applicant's “condition would impact on all aspects of her functioning including her ability to obtain and maintain employment.”
d) The Tribunal at [22] noted that the letter of Tamara Brown, the Applicant's previous employer, did not state whether the Applicant's employment was on a full time or part time basis.
e) The Tribunal was not satisfied from “either opinion (John Perera or Carol Black) that the Applicant, at the time of decision, is incapacitated to work.”
f) The Tribunal failed to consider whether a capacity to work part time in circumstances of partial loss of mental functions could render the Applicant a “dependant child” within the meaning of reg. 1.03(b)(ii).
Ms Cole’s submissions were as follows:
a)while the definition of “dependent child” in reg.1.03 of the Migration Regulations does not state that a child must be incapacitated from full time work, equally it does not state that a child with a part-time capacity for work is thereby precluded from recognition as a dependent child;
b)in the definition of “dependent” in reg.1.05A(l)(b) of the Migration Regulations, a relationship of dependence is established through the first person being wholly or substantially reliant on the other person for financial support because the person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions, and the reference to substantial, as distinct from total, reliance suggests that a person can work part-time and still establish a relationship of dependency through substantial reliance on a parent;
c)Ms Cole submits that it would create an unworkable inconsistency in the operation of the Migration Act and Migration Regulations if a person could establish a relationship of dependency with a parent where the person works part-time or casually, under cl.802.212 of Sch. 2 to the Migration Regulations, which imports the reg.l.05A definition of dependent (as explained further in Ground 3), but that person could not establish such a dependent relationship under cl.802.214 of Sch.2 to the Migration Regulations where the person must fall within the meaning reg.1.03(b)(ii) of the Migration Regulations definition of “dependent child” (that is, "incapacitated for work due to the total or partial loss of the child's bodily or mental functions");
d)clause 802.214(1)(b) of Sch.2 to the Migration Regulations expressly states a criterion that Ms Cole is not engaged in full-time work. This requirement still applies to a person who is claiming to be incapacitated pursuant to cl.802.214(2) of Sch.2 to the Migration Regulations. This distinctly leaves open the possibility of part-time work under cl.802.214 of Sch.2 to the Migration Regulations;
e)the Tribunal therefore misconstrued the requirements of the Migration Act and the Migration Regulations by requiring incapacitation such that a person cannot work; and
f)a correct application of the definition of dependent child in reg.l.03(b)(ii) of Sch.2 to the Migration Regulations to Ms Cole's circumstances on 2 June 2015 would have seen the Tribunal assess whether Ms Cole's present limited capacity for work could still render her a "dependent child" within the meaning of reg.103(b)(ii) of the Migration Regulations.
The Minister, having referred to the definition of “dependent child” in reg.1.03 of the Migration Regulations, relevant passages from the Tribunal Decision, and Ms Cole’s contentions in relation to ground 1, submitted that:
a)the Tribunal did not misconstrue reg.1.03(b)(ii) of the Migration Regulations. The requirement for a person to be a "dependent child" pursuant to reg.1.03(b)(ii) of the Migration Regulations is that the child be "incapacitated for work due to the total or partial loss of the child's bodily or mental functions". There is no definition of the expression "incapacitated for work", and the ordinary use of the phrase would suggest that it is referring to a person who is unable to work. There is no reason why notions of full-time work or part-time work should be determinative of the expression "incapacitated for work";
b)this is further supported by the distinction within reg.1.03(b)(ii) of the Migration Regulations that the incapacity be due to either a total or partial loss of bodily or mental functions. Having explicitly referred to both total and partial loss of function, the Parliament has not seen fit to specify that as a result of any such loss of function the child be either totally or partially incapacitated for work, but simply to require that as a result of such loss of function the child "is incapacitated for work"; and
c)what the Tribunal was required to assess under reg.1.03(b)(ii) of the Migration Regulations was whether, on the basis of the relevant evidence, Ms Cole was a dependent child because she was "incapacitated for work due to the total or partial loss of her bodily or mental functions". The Tribunal carried out that assessment, and in the course of doing so had regard to the medical evidence as to Ms Cole's partial loss of mental functions and her work history. The conclusion reached by the Tribunal was one that was reasonably open to it, and there was no jurisdictional error by reason of the Tribunal failing to correctly apply reg.1.03(b)(ii) of the Migration Regulations.
Consideration – ground 1
The Child Residence Visa application fell for consideration against the criteria given in cll.802.212 and 802.214 of Sch. 2 to the MigrationRegulations.
Under cl.802.214(2) of Sch.2 to the MigrationRegulations, the Tribunal was required to consider whether Ms Cole, at the time of making the application, was a dependent child within the meaning of “dependent child” as defined in reg.1.03(b)(ii) of the Migration Regulations, which is set out at [13] above.
The Tribunal's conclusion that Ms Cole was not so incapacitated: CB 364 at [29], was premised upon its conclusion that what was required was a complete inability to work. The Tribunal stated at CB 364 at [26] that what was required was
… incapacitation such that a person cannot work. It does not stipulate that a person is incapacitated from full time work and the tribunal does not import this particular meaning.
The text of reg.1.03(b)(ii) of the Migration Regulations does not lend itself to the construction suggested by Ms Cole. A “dependent child” therein is one who is “incapacitated for work”. The word “incapacitated” derives its meaning from “incapacitate” which relevantly means:
To deprive of capacity, make incapable or unfit; disqualify
Macquarie Dictionary (Seventh Edition) (Sydney: Macquarie Dictionary Publishers, 2017), page 766.
A person who is incapacitated is thus one who is to deprived of capacity, or made incapable or unfit, or disqualified, from doing something, in this case, work. There is no doubt that a person can be partly incapacitated, but that important qualification – or one like it – has not been made by the Parliament in the text of reg.1.03(b)(ii) of the Migration Regulations. On its face “incapacitated” in reg.1.03(b)(ii) of the Migration Regulations means totally incapacitated, and therefore totally “incapacitated for work”. The text, or plain meaning, of the phrase “incapacitated for work” does not accord with Ms Cole’s suggested construction of reg.1.03(b)(ii) of the Migration Regulations.
The context in which the word “incapacitated” in the phrase “incapacitated for work” appears also does not lend itself to the construction suggested by Ms Cole. That is because the Parliament has not qualified “incapacitated” in any way, but by way of significant contradistinction goes on to immediately qualify the “loss of … bodily or mental functions” of the child as either “total or partial”. This shows that the Parliament considered the degree to which those functions might be lost, and included a “partial” loss of the relevant function. That it did not do the same with respect to the degree to which the child is “incapacitated” suggests that the Parliament did not intend that “incapacitated” should be qualified by degrees of incapacity, but rather that the child concerned had to be totally incapacitated in order to meet the criteria for being a dependent child (and hence the criteria for the Child Residence Visa) under reg.1.03(b)(ii) of the Migration Regulations.
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); and
c)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.
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.
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.
The nature of the categories, and the different definitions within reg.1.03 of the Migration Regulations, support the context of reg.1.03 of the Migration Regulations requiring that a child who is “incapacitated for work” be totally incapacitated, and not partially incapacitated.
Both the text and context of the word “incapacitated” and the phrase “incapacitated for work” support the view that what is meant in reg.1.03(b)(ii) of the Migration Regulations is total, and not partial, incapacitation.
The purpose of the definition of “dependent child” is to define that term for the purposes of assisting in determining who satisfies the criteria for the grant of various kinds of visa, including the Child Residence Visa. That is consistent with the purpose of the Migration Act which, amongst other things, regulates entry into Australia by means of the visa system: Migration Act, ss.4 and 65. There is nothing in the definition of “dependent child” as set out in the Tribunal Decision which derogates from that purpose.
Having regard to the text of reg.1.03 of the Migration Regulations, its context and its purpose, together with the purpose of the Migration Act and Migration Regulations as a whole, it cannot be said that the interpretation adopted in the Tribunal Decision of the phrase “incapacitated for work” as meaning totally incapacitated for work was not a plain meaning of that phrase open to be found as such by the Tribunal. In the Court’s view, the Tribunal’s interpretation of the phrase “incapacitated for work” in the definition of “dependent child” in reg.1.03(b)(ii) of the Migration Regulations was correct. In arriving at this conclusion it was unnecessary for the Court to refer to the immediate predecessor of reg.1.03(b)(ii) of the Migration Regulations, but the Court notes that it was in a different form, and a form which had it not changed would have supported the contentions now made by Ms Cole under grounds 1 and 2, referring to a person “wholly or substantially incapacitated”: Migration Regulations 1993 (Cth), reg.1.3 (definition of “dependent child”).
For the reasons set out above, the Court has concluded that ground 1 of the Re-Amended Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2 – Tribunal failed to correctly apply the two-stage process of approaching "incapacity for work"
Ground 2 is that the Tribunal failed to correctly apply the two-stage process of approaching "incapacity for work" based on Annas v Director-General of Social Security (1985) 8 FCR 49; (1985) 63 ALR 444; (1985) 8 ALD 250 (“Annas”), adopting the principles in Re Panke and Director-General of Social Services (1981) 4 ALD 179 (“Panke”). The particulars to ground 2 are as follows:
a) Annas adopted the two stage process in Re Panke, which sets out that “where there is a significant disability which might not be totally destructive of any prospect of employment, a two stage process of evaluation is necessary:
(i) There should be an evaluation in purely medical terms of the person's physical or mental impairment; and
(ii) There should be an ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work.”
b) The first stage in Annas is an evaluation exclusively within the competence of a qualified medical practitioner, and the second stage should be considered by an administrator with knowledge of the ability the person suffering physical or mental impairment has in acquiring and maintaining employment.
c) The Tribunal considered the opinions of the clinical psychologists John Perera and Carol Black concerning the Applicant's working capacity.
d) The Tribunal at [23] concluded that based on the Applicant's prior employment history that she is not a person who is “incapacitated for work due to illness”
e) The Tribunal has failed to apply the second stage which, in the circumstances of this case, required consideration of evidence from an administrator concerning the effect mental illness of the type suffered by the Applicant has on her prospects of finding and maintaining paid employment.
Ms Cole’s submissions placed reliance upon various passages from the decision of the then Migration Review Tribunal (“MRT”) in Case Number 1305343 [2013] MRTA 3533 (“Case 1305343”), Annas and Panke. Ms Cole notes that in Case 1305343 the MRT had noted that the definition of “dependent” and cl.802.214 of Sch.2 to the Migration Regulations were inserted by the Migration Amendment Regulations 1999 (No 13), and that the phrase “incapacitated for work due to the total or partial loss of a child’s bodily or mental functions” was drawn from the Disability Discrimination Act 1992 (Cth). Ms Cole went on to cite extracts from Case 1305343, Annas and Panke, including the following from Ms Cole’s Outline of Submissions at [40]-[43]:
40. In case no. 1305343, the Tribunal went on to say:
41 In assessing incapacity to work, the Tribunal has had regard to the definition of 'work' in regulation 1.03, namely “an activity that, in Australia, normally attracts remuneration”.
42 The approach to interpreting … 'incapacity for work' in social security law is instructive, given the lack of case law in the migration law context. The AAT, in an approach endorsed by the Full Federal Court, found that it involves a two –stage process:
[F]irstly, an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work.
…
41. In Annas v Director General of Social Security [1985] FCA 428, the Full Federal Court approved … the two stage process that had been outlined in the Administrative Appeals Tribunal's decision in Re Panke. The Full Court (Northrop, Morling and Wilcox JJ) stated at [11]:
Panke should be regarded as reflecting a correct understanding of ss. 23 and 24 of the Act and of the appropriate process of assessing the degree of incapacity for work. Of course, like any other decision, it must be read in the light of its own facts. There may be cases in which the incapacity is so overwhelming, or so minimal, as to make the two stage process of evaluation unnecessary. But in relation to the many cases, like Panke and like the present case, where the disability is significant – in relation to work capacity - but not totally destructive of any prospect of employment, the approach suggested in that decision ought to be applied.
42. In Re Panke, the Administrative Appeals Tribunal … stated the two-stage test referred to above in the following passage:
66. The assessment of the degree of incapacity for work in fact involves two quite distinct steps - firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work (see Attorney's Text Book of Medicine, 3rd Edn. 1979, by R. Gray, Vol.4, Chapter 181 including Preface). The first question is entirely within the competence of a suitably qualified medical practitioner. The second question, depending on the nature and extent of the physical impairment and the experience of the medical practitioner may not be. Whilst medical practitioners frequently turn their minds to such issues in workers' compensation, motor vehicle and industrial accident claims, it may be a question which, in some cases, is more appropriate for consideration by an administrator with a wider knowledge of the type of work which a person so disabled may be capable of performing.
67. …
68. In our view, it is not enough for the purposes of s.23 of the Act, to have regard in any abstract sense, simply to 'jobs that exist as jobs' in the community. The provisions of the Act with respect to unemployment benefits (see in particular s.107(1)(c) above) indicate that when the Act refers to capacity for work, it is concerned with the capacity to undertake paid work that is suitable to be undertaken by a person. It is only after a fair assessment of the extent of the person's physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made.
69. …
70. … The degree of incapacity will then depend upon an assessment, in each individual case, of the extent of the residual capacity for suitable work against the capacity for work which the person, absent his physical or mental impairments, might have expected to enjoy. …
43. Davies J (President of the Tribunal) agreed with Senior Member Hall and Member Glick. Davies J said that the phrase “incapacitated for work.”
denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning ... [A]n ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person.
The above was cited with approval by Greenwood J in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [37].
Ms Cole submitted that in this case the Tribunal had concluded that based on her prior employment history she is not a person who is incapacitated for work due to illness: CB 363 at [23]. Ms Cole then says that the Tribunal failed to apply the second stage of the Panke test, which, in the circumstances of this case, required consideration of evidence concerning the effect of mental illness of the type suffered by Ms Cole on her prospects of finding and maintaining paid employment.
The Minister’s submissions were as follows:
a)ground 2 relies upon Annas. Annas held that in assessing qualification for an invalid pension under the relevant provision of the then Social Security Act 1947 (Cth) (“1947 SS Act”) where there is a significant disability which might not be totally destructive of any prospect of employment, a two-stage process of evaluation is necessary. First, there should be an evaluation in purely medical terms of the person's physical or mental impairment, and secondly, there should be an ascertainment of the extent to which that impairment affects the person's ability to engage in paid work: Annas at [52]-[53] per Northrop, Morling and Wilcox JJ;
b)Ms Cole's reliance on Annas is misplaced as that case should be read in the context of the specific statutory regime to which it relates. Annas was dealing with an application for an invalid pension, entitlement to which was governed by the provisions of ss.23 and 24 of the 1947 SS Act. Section 24 of the 1947 SS Act provided that a person above the age of 16 years and who was permanently incapacitated for work or was permanently blind was qualified to receive an invalid pension. Section 23 of the 1947 SS Act provided that a person shall be deemed to be permanently incapacitated for work if the degree of permanent incapacity for work was not less than 85%. The test set out in Annas only has direct application to its particular social security context, and to the requirements for an invalid pension in ss.23 and 24 of the 1947 SS Act;
c)Ms Cole refers at [39] and [40] of her Outline of Submissions to Case 1305343, in which the MRT was considering whether the applicant in that case was a dependent child for the purposes of cl.802.214(2) of the Migration Regulations by reason of being incapacitated for work due to a total or partial loss of mental functions within the meaning of reg.1.03(b)(ii) of the Migration Regulations; and
d)although the MRT in Case 1305343 at [42] referred to the approach to interpreting "incapacity for work" in social security law being instructive, and referred to the two-stage process in Panke, that does not mean that such an approach is mandatory in assessing whether a child is incapacitated for work under reg.1.03(b)(ii) of the Migration Regulations. Further, in Case 1305343 the MRT accepted the psychologist's evidence that the applicant there suffered from anxiety and depression, but in considering his incapacity for work because of such mental conditions placed substantial weight on his answers to questions on Form 26 and his own statements to the medical advisor at his medical examination, and his evidence that he had worked as a cleaner in Australia: Case 1305343 at [50]-[52]. The MRT concluded at [54] that based on all the material before it, the MRT was not satisfied that at the time of application the applicant was incapacitated for work. Likewise here, the Tribunal at CB 363 at [23] accepted that Ms Cole has depression and PTSD due to childhood trauma, but concluded, on the basis of Ms Cole's evidence as to her employment and a review of the medical evidence, that it was not satisfied that Ms Cole was at the time of application, and at the time of Tribunal Decision, incapacitated for work: CB 363-364 at [23]-[29]. This conclusion was reasonably open to the Tribunal and did not involve any jurisdictional error by reason of a failure to apply the second stage of the Panke test.
Consideration – ground 2
Ms Cole’s reliance upon Annas and Panke is misplaced. Although those cases did adopt the two-stage process of approaching “incapacity for work” they did so in the particular statutory context of s.23 of the 1947 SS Act. Section 23 of the 1947 SS Act provided as follows:
For the purposes of this Division, a person shall be deemed to be permanently incapacitated for work if the degree of his permanent incapacity for work is not less than 85-percentum.
As was observed in Panke at [68] the provisions of s.23 of the 1947 SS Act are directed to “a proper assessment of the degree of incapacity”. Annas and Panke are, with respect, correctly decided having regard to the particular provisions of s.23 of the 1947 SS Act which plainly require a determination of whether or not a person is incapacitated, and then a determination of the degree of incapacity, the quantum of which has to be specifically assessed in order to enable the person concerned to be deemed to be permanently incapacitated and therefore qualify for an invalid pension: 1947 SS Act, s.24(1). Indeed, s.23 of the 1947 SS Act is an example of how a provision such as reg.1.03(b)(ii) of the Migration Regulations might have been drafted if the Parliament intended that something less than total incapacity for work be a criteria for being a “dependent child” on the basis of that incapacity. Annas and Panke are plainly distinguishable from Ms Cole’s case. The approach adopted by the MRT in Case 1305343, and relied upon by Ms Cole merely regarded the approach adopted in Annas and Panke as “instructive” rather than determinative. If, contrary to the Court’s view, Case 1305343 did determine that the two-stage process for determining incapacity to work applied in respect of the definition of “dependent child” in reg.1.03(b)(ii) of the Migration Regulations then it was wrongly decided by the MRT for the reasons set out in relation to both this ground and ground 1 above.
For the reasons set out above, the Court has concluded that:
a)the two-stage process of approaching incapacity for work under ss.23 and 24 of the 1947 SS Act outlined in Panke and approved in Annas is not applicable when determining whether a person is “incapacitated for work” under reg.1.03(b)(ii) of the Migration Regulations; and
b)ground 2 of the Re-Amended Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3 – Tribunal failed to consider whether cl.802.212 was satisfied
Ground 3 is that the Tribunal made a jurisdictional error by failing to consider whether cl.802.212 of the Migration Regulations was satisfied in respect of Ms Cole's Child Residence Visa application. The particulars to ground 3 are as follows:
a) The Tribunal noted at [2] that the claims made by the applicant had only been made in respect of subclass 802 (Child) visa.
b) The criteria to be satisfied at time of application for the subclass 802 (Child) visa relevantly include:
• subclause 802.212(1)(a): “The applicant…is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen”; and
• subclause 802.214(2): the applicant “... is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.”
c) 'Dependent child' is defined in Reg. 1.03 and includes requirements:
• in paragraph (b)(i) that the child be 'dependent' on the other person (within the meaning of 'dependent' given in Reg. 1.05A);
• in paragraph (b)(ii) that the child be “incapacitated for work due to the total or partial loss of the child's bodily or mental functions.”
d) Paragraph (1)(a) of Reg. 1.05A relevantly defines 'dependent' as follows:
(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 or support, for financial support to meet the first person's basic needs for food, clothing and shelter.
e) The Tribunal stated at [81] that: “(t)he issue in the present case is whether or not the applicant is a dependent child as defined by Reg. 1.03 and whether she does or does not meet cl. 802.214(2).”
f) The Tribunal failed to consider whether the applicant was dependent on another person within the meaning of paragraph (a) of the definition of 'dependent' given in Reg. 1.05A(1).
g) The Tribunal purported to only make findings, under cl. 802.214(2), on whether the applicant is a dependent child within the meaning of subparagraph (b)(ii) of the definition of 'dependent child' given in reg. 1.03.
h) In the result, the Tribunal purported to make findings on the applicant's claims only against cl. 802.214 and fell into jurisdictional error by omitting to make any findings under cl. 802.212, which clause was also materially relevant to the visa application.
Ms Cole’s submissions in relation to ground 3 were as follows:
a)at CB 361 at [8], the Tribunal stated:
The issue in the present case is whether or not the applicant is a dependent child as defined by Reg. 1.03 and whether she does nor does not meet cl. 802.214(2).
b)by that statement, the Tribunal correctly identified the criterion 'dependent child' prescribed in cl.802.212(1)(a) of Sch.2 to the Migration Regulations and defined in reg.1.03 of the Migration Regulations;
c)at CB 361 at [10], the Tribunal summarised the definition reg.1.03 of the Migration Regulations as follows:
Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic need needs, or be incapacitated for work due to loss of bodily or mental functions.
d)by stating in its summary of reg.1.03 of the Migration Regulations that the child "must be reliant on the parent for financial support to meet certain basic needs", it is submitted that the Tribunal was by those words importing (in summary) the definition of the expression 'dependent' given in reg.1.05A(l)(a) of the Migration Regulations;
e)the definition of “dependent” given in reg.1.05A(l) of the Migration Regulations relevantly has two components. The first component is paragraph (a) which provides for a person (the first person) to be dependent on another person where the first person is wholly or substantially reliant on the other person for financial support;
f)the second and alternative component of reg.1.05A(l) of the Migration Regulations is paragraph (b) which provides for dependency in circumstances where the first person is wholly or substantially reliant on the other because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions;
g)it can be seen then that dependence for the purpose of the Migration Regulations can be manifested in two ways: firstly where there is dependence as a matter of fact (reg. l.05A(l)(a)); secondly where the dependence occurs through incapacity for work due to the total or partial loss of bodily or mental functions (reg. l.05A(l)(b));
h)in Huynh the Full Court of the Federal Court considered the issue of dependency, arising from the construction of reg.1.05A(1) and the majority, Lander and Rares JJ, said as follows at [36]-[37]:
36 A child over 18 is usually able bodied and can go into the workforce so as to support himself or herself. The child could choose to go to an educational institution, such as university and be wholly or substantially reliant on his or her parents for financial support to meet the three prescribed basic needs. That situation of choice is a commonplace and would obtain in very many situations in which the question of dependence within the meaning of the Regulations would arise. The choice of pursuit of education is a choice many parents would want their children to have and would support them pursuing. If the word 'reliant' carries with it the implication that the child needs to, as opposed to chooses to, rely on the parent for financial support, it must follow that able bodied children capable of working cannot be found to be 'dependent' within the meaning of the Regulations. That is not a result which receives any textual support in the Regulations. It is a result which seems out of harmony with the intent that a child over 18 can be dependent or reliant in a commonplace situation of him or her pursuing education.
37 It is implicit in the structure of reg 1.05A(1) that the person whose position is being considered as within the meaning of 'dependent' is fit for work unless he or she is incapacitated within the meaning of reg 1.05A(1)(b). Thus, a dependent child to whom the definitions in regs 1.05A(1)(a) and 1.03(a)(i) applies must have the capacity to work. Accordingly, it is implicit in the definitions that the 'dependent' can, if he or she so chooses, work or not. Thus, if one were to construe 'dependent' or ' reliant' as involving not just the fact, of such dependence or reliance, but also the need to so depend or rely, the definition could only apply where the 'dependent' could not work through no fault of his or her own because of lack of opportunity. It is unlikely that the drafter of the Regulations necessarily intended that only unemployed persons from overseas should be brought into this country as 'dependents'.
i)the majority in Huynh at [42]-[44] per Lander and Rares JJ also said as follows:
42 The Minister argued that if the construction of reg 1.05A(1) did not involve a requirement that the 'dependent' required, rather than chose, to be 'reliant', it would facilitate contrived claims of dependence. However, reg 1.05A(1 )(a)(i) requires the child to have been 'reliant' on the parent 'for a substantial period' before the time at which the question of dependence is determined by the decision-maker. Such a criterion is likely to have been set in order to ensure that claims of dependence were genuine, rather than contrived. It also focuses attention on the fact that the child has relied on the parent more than on any other source for the relevant financial support as a matter of objective fact. These factors do not provide any textual support for the Minister's submission and we reject it.
43 By leaving the question of dependence or reliance to be a question of fact untrammeled by the implication of the notion of necessity, the Regulations will be able to be interpreted across the broad range of circumstances to which they relate. In our opinion on their proper construction it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant financial support.
44 For various reasons parents choose to send their children to educational institutions, even when the child does not want to go. A child may be able bodied and able to work, notwithstanding that he or she wishes to pursue an educational opportunity or opportunities. The question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support."
j)clause 802.214 of Sch.2 to the MigrationRegulations, set out at [12] above, applies to applicants who have turned 18. As Ms Cole was 22 years old at the time of the Tribunal Decision, the clause was required to be considered;
k)clause 802.214 of Sch.2 to the MigrationRegulations was also required to be met at the time of the Tribunal Decision: Migration Regulations, Sch.2, cl.802.221(2);
l)at CB 362 at [11], the Tribunal stated: ''There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl 802.214". The Tribunal then proceeded to consider Ms Cole against cl.802.214 of Sch.2 to the MigrationRegulations. At CB 362 at [15] the Tribunal noted that Ms Cole claimed that the educational requirement of cl.802.214(1)(c) of Sch.2 to the MigrationRegulations did not apply to her because at the time of application, she was incapacitated for work due to the loss of bodily or mental functions pursuant to cl.802.214(2) of Sch.2 to the MigrationRegulations;
m)the Tribunal went on to find that that Ms Cole was not at the relevant times incapacitated for work due to loss of bodily or mental functions, and found that cl.802.214 of Sch.2 to the MigrationRegulations was not met: CB 364 at [30];
n)the vice in the Tribunal's reasoning is that it treated cl.802.214 of Sch.2 to the MigrationRegulations as exhaustive of all the circumstances in which a person over the age of 18 but under the age of 25 could be granted a Child Residence Visa. The Tribunal omitted to discuss whether Ms Cole met the criteria of cl.802.212(1) of Sch.2 to the MigrationRegulations. That subclause imports the definition of 'dependent child' given in reg. 1.03 of the Migration Regulations, which in turn imports the meaning of 'dependent' given in reg.l.05A, by which definition it is possible for a person to be dependent as a matter of fact and not just because they have an incapacity for work, as was explained by the Full Court majority in Huynh;
o)the time of decision criteria in cl.802.221(2) of Sch.2 to the MigrationRegulations refer to a requirement for Ms Cole, as a person who had turned 18 at the time of application, to continue to "satisfy the criterion in clause 802.212" and also to continue to "satisfy the criterion in clause 802.214";
p)the Tribunal did not consider whether Ms Cole continued to satisfy the criterion in cl.802.212 of Sch.2 to the MigrationRegulations. Instead, the Tribunal appears to have formed the view that cl.802.214 of Sch.2 to the MigrationRegulations, by itself, at time of application and at time of decision, was determinative of the Child Residence Visa application;
q)Ms Cole submits that both cll.802.212 and 802.214 of Sch.2 to the MigrationRegulations were applicable to the determination of her claims at the time of her Child Residence Visa application and at the time of decision. These clauses were applicable because:
i)Ms Cole was claiming to be a dependent child of the sponsor (which attracted the definition in reg.l.05A(l)(a) of the Migration Regulations as explained above); and
ii)clause 802.212 of Sch.2 to the MigrationRegulations establishes the core criteria for a visa in the 802 subclass, importing relevant definitions from elsewhere in the Migration Regulations. Clause 802.214 of Sch.2 to the MigrationRegulations must be read with cl.802.212 of Sch.2 to the MigrationRegulations, as must cll.802.211 (where s.48 of the Migration Act applies), and 802.213 (circumstances of adoption);
r)it follows that in Ms Cole’s submission, the legislation does not support the PAM3 policy position set out by the Tribunal in Case 1305343, where it was stated:
A child who is incapacitated for work because of a disability is provided for in part (b)(ii) of the regulation 1.03 dependent child definition. It follows that they are also a member of the family unit. As it is irrelevant whether the child is financially dependent, officers do not need to assess the child against regulation 1.05 'dependent' definition.
s)a finding by the Tribunal that Ms Cole did meet cl.802.212 of Sch.2 to the MigrationRegulations by reason of Ms Cole being a dependent as a matter of fact within the meaning of reg.l.05A(l)(a) of the Migration Regulations would still leave work for cl.802.214 of Sch.2 to the MigrationRegulations to do through the requirements with respect to a spouse or de facto partner (cl.802.214(1)(a)(iii) of Sch.2 to the MigrationRegulations); and not being engaged in fulltime work (cl.802.214(1)(b) of Sch.2 to the MigrationRegulations); and
t)such a finding would also require consideration of whether Ms Cole continued to meet those requirements at time of decision under cl.802.221(2)(b) of Sch.2 to the MigrationRegulations. It should be noted however that that paragraph refers to satisfying a 'criterion' in cl.802.214 of Sch.2 to the MigrationRegulations. Clause 802.214 of Sch.2 to the MigrationRegulations specifies a number of criteria. It is submitted therefore that there is an element of generality associated with cl.802.221 of Sch.2 to the MigrationRegulations, with the result that a person such as the present applicant can potentially satisfy clause 802.212 of Sch.2 to the Migration Regulations in the manner she contends for as well as cl.802.214 of Sch.2 to the MigrationRegulations.
The Minister’s submissions were as follows:
a)Ms Cole asserts that the Tribunal only considered whether she, as a person over 18, met the criteria in cl.802.214 of Sch.2 to the Migration Regulations, but that it should have also considered whether Ms Cole met the criteria of cl.802.212 of Sch.2 to the Migration Regulations. Consequently, Ms Cole asserts that the Tribunal then failed to consider whether Ms Cole met the broader definition of "dependent child". Ms Cole contends that it was an error to treat cl.802.214 of Sch.2 to the Migration Regulations as determinative of the matter;
b)there is no substance to this ground of review. The time of decision criteria in cl.802.221(2) of Sch.2 to the Migration Regulations requires that Ms Cole continue to satisfy the criterion in cl.802.212 of Sch.2 to the Migration Regulations and the criterion in cl.802.214 of Sch.2 to the Migration Regulations: the two criteria are not alternatives. Thus, irrespective of whether Ms Cole meets the broader definition of dependent child in cl.802.212 of Sch.2 to the Migration Regulations, if she is not a dependent child within the meaning of the definition of dependent child in reg.1.03(b)(ii) of Sch.2 to the Migration Regulations, then she will not meet the requirements of the criterion in cl.802.214 of Sch.2 to the Migration Regulations, and the Child Residence Visa application must be refused; and
c)the Tribunal was clearly aware of the criterion in cl.802.212 of Sch.2 to the Migration Regulations, as it noted its requirements at CB 361 at [9]. However, the Tribunal was not required to make an assessment of whether Ms Cole satisfied cl.802.212 of Sch.2 to the Migration Regulations in light of its conclusion that she did not meet the requirements of cl.802.214 of Sch.2 to the Migration Regulations, and accordingly, there was no jurisdictional error by the Tribunal in not concluding whether cl.802.212 of Sch.2 to the Migration Regulations was satisfied by Ms Cole.
Consideration – ground 3
At its core Ms Cole’s claim with respect to ground 3 is that the Tribunal should have considered her claim under both:
a)clause 802.214 of Sch.2 to the Migration Regulations, as it did; and
b)clause 802.212 of Sch.2 to the Migration Regulations, as it is claimed it did not,
and that in so doing, and in particular for the purposes of cl.802.212 of Sch.2 to the Migration Regulations, should have had regard to the bifurcated nature of the definition of “dependent child” ultimately set out in reg.1.03(b)(i) and (ii) of the Migration Regulations.
Ms Cole was correct to assert that the Tribunal ought to have considered the application of both cll.802.212 and 802.214 of Sch.2 to the Migration Regulations at the time of the Tribunal Decision, and that in considering the definition of “dependent child” in reg.1.03(b) of the Migration Regulations for those purposes, that regard ought to have been had to its bifurcated nature. That is not inconsistent with how this Court has found that reg.1.03(b) of the Migration Regulations ought to be interpreted: see [27]-[29] above.
On its face, the failure to take into account relevant legislative criteria when considering whether an applicant is entitled to the grant of a visa is a jurisdictional error. In this case, however, the criteria to be met required that both cll.802.212 and 802.214 of Sch.2 to the Migration Regulations be met at the time of the Tribunal Decision. That both had to be met is evident from the use of the conjunctive “and” between paragraphs (a) and (b) in cl.802.221 of Sch.2 to the Migration Regulations set out at [11] above. There is no textual, contextual or purposive reason to depart from the ordinary meaning of “and” as conjunctive, particularly where it can be contrasted with the usually disjunctive “or” appearing between placitas (i) and (ii) of cl.802.221(2)(a) of Sch.2 to the Migration Regulations which immediately precedes it: Victims Compensation Fund v Brown [2003] HCA 54; (2003) 77 ALJR 1797; (2003) 201 ALR 260 at [13]-[15] per Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed).
In this case the Tribunal decided that, at the time of the Tribunal Decision, Ms Cole did not satisfy the criteria under cl.802.214 of Sch.2 to the Migration Regulations. For reasons set out in relation to grounds 1 and 2 above the Court has determined that there was no jurisdictional error in the Tribunal so deciding. Because Ms Cole did not satisfy the requirements of cl.802.214 of Sch.2 to the Migration Regulations she could not therefore satisfy the requirement that at the time of the Tribunal Decision she met the requirements of both cll.802.212 and 802.214 of Sch.2 to the Migration Regulations. In those circumstances it was strictly unnecessary for the Tribunal to consider whether Ms Cole met the requirements of cl.802.212 of Sch.2 to the Migration Regulations.
In the circumstances, ground 3 of the Re-Amended Judicial Review Application is not made out, and therefore cannot establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that for the reasons set out above in relation to each of the grounds, those grounds not being made out and there being no jurisdictional error established in the Tribunal Decision, that the Re-Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 14 September 2017
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