Fernandez v MIBP

[2015] FCCA 1698

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERNANDEZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1698

Catchwords:
MIGRATION – Migration Review Tribunal – Other Family (Residence) (Class BU) visa – whether the Tribunal applied the correct test in relation to ‘age dependence’ – whether reg.1.05A includes dependence on a number of people – no jurisdictional error – application dismissed.

Legislation:  

Acts Interpretation Act 1901, ss.2(2), 23
Migration Act 1958, ss.54, 55, 391, 476
Migration Regulations 1994, regs.1.03, 1.05A

Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122

Applicant: NERVO WALTER ARMADO FERNANDEZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 959 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner
Manning Lawyers

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 959 of 2015

NERVO WALTER ARMADO FERNANDEZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The is an application for a Constitutional writ under s. 476 of the Migration Act 1958 in respect of a decision of the Tribunal made 10 March 2015, refusing the applicant an Other Family (Residence) (Class BU) visa.  This is a case where the applicant contended that he was dependent on two nieces, both residing within Australia.  The applicant contends that he was reliant on one of his nieces in Uruguay (his country of citizenship) at least for shelter, prior to coming to Australia on a subclass 676 Tourist visa, in which part of the requirements for the grant of the visa required the applicant to state that he genuinely intends to visit Australia temporarily.  The applicant was born on 6 June 1929, and at the time of the hearing before the Tribunal was 85 years old. 

2. Mr Turner, solicitor for the applicant, developed the first ground of alleged error on the basis that the construction, both of the requirements in Schedule 2 and relevantly cl.838.21 in the reference to “an Australian relative” in the provision of cl.838.212, can refer to more than one Australian relative, and that the requirements for continuing satisfaction of the criteria under cl.838.221 can be met in the circumstances of the present case because there were two nieces upon whom it was alleged by the applicant he was an aged dependent relative.  Regulation 1.05A(1) provides as follows:

   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.

3. Mr Turner advanced the argument that the reference to another person in respect of whom the applicant might be dependent, or the first person is dependent, is capable of including the plural so that the requirements in the present case of dependency were able to be met by reference to both nieces, given that the applicant contended that he was dependent on both nieces prior to leaving Uruguay and on arrival in Australia. Mr Turner contended that the rule as to number in s.23 of the Acts Interpretation Act 1901 assisted this construction. Section 23 provides as follows:

   Section 23 Rules as to gender and number

   In any Act:

   (a)  words importing a gender include every other gender; and

   (b)  words in the singular number include the plural and words in the plural number include the singular.

4. Mr Turner accepted that that rule was subject to s.2(2) in respect of the contrary intention. Mr Turner submitted that there was no reason why one should find a contrary intention as, on his construction, more than one person might satisfy the definition that they were dependent. Mr Turner took the Court to the definition of age-dependent relative in reg.l.03, which is as follows:

   "aged dependent relative" , in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:

   (a)  does not have a spouse or de facto partner; and

   (b)  has been dependent on that person for a reasonable period, and remains so dependent; and

   (c) is old enough to be granted an age pension under the Social Security Act 1991 .

5. Mr Turner advanced that the reference to an Australian citizen was again capable of accommodating more than one Australian citizen and that in this case the applicant contends that he remains dependent on both nieces. 

6. The difficulty with Mr Turner’s construction in relation to reg.1.05A is that the language used clearly identifies a level of specificity in respect of “the other person”, and that the requirements to meet the definition of being dependent “on another person” articulate specific requirements in respect of “the other person”.  In my opinion, that language manifests a contrary intention when one takes into account the use of a definite article in respect of “other person”. This contrary intention is also supported by the use of other person in cumulative requirements of paragraph (a), namely the requirement that the reliance on the other person is greater than the reliance by the first person on any other person. 

7. In my opinion, reg.1.05A manifests a contrary intention in relation to the rule as to number in s.23. In this case there was no error by the Tribunal by reason of focusing on the niece that completed the form 40 application at the time of and in support of the applicant’s application for the Other Family (Residence) (Class BU) visa. Mr Turner took the Court to ss.54 and 55 in relation to the provision of information to the Minister and drew attention to the fact that prior to the determination of the review, the Form 40 was completed by the second niece. It was in those circumstances that Mr Turner maintained that there was an error by the Tribunal in failing to deal with the application of reg.1.05A by taking into account both nieces in determining whether the applicant was dependent on another person. Mr Cleary of counsel drew the Court’s attention to the decision of Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122 at [28] as follows:

   28 When one turns to reg 1.05A(1) it is noticeable that it prescribes clear objective criteria to be met for dependence to be established. First, reg 1.05A(1) stipulates that the child (who is the ‘first person’ for present purposes) must be at the time at which consideration as to his or her position is being given, ‘wholly or substantially’ reliant on the parent for financial support. Secondly, that degree of reliance is required to have been ‘for a substantial period immediately before that time’. Thirdly, the financial support being provided must be to meet the child’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the child’s reliance on the parent must be greater than his or her reliance on any other person or source of support for financial support to meet those three basic needs.

8. The reasoning in Huynh, in my opinion, supports the proposition that the contrary intention is manifested in respect of the number rule within the meaning of s.2(2). The three respects requires all three basis needs being food, shelter and clothing to be the subject of that financial support.

9. Mr Turner also advanced that the Tribunal misapplied reg.1.05A(1)(b) on the basis that in the present case, there was medical evidence that the applicant was incapacitated.  Mr Turner referred to the report of Dr Meneghetti dated 19 June 2012, which, relevantly, said (CB 69):

   Mr Armado suffers from many illnesses.  He is fully dependent on his two nieces.

10. Mr Turner advanced that in those circumstances, the applicant was a person who was wholly or substantially reliant on the nieces (reg.l.05A(l)(b)):

    ... 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.

11. It is clear in the present case that there has been no incident of incapacity that has occurred in Australia, and it is clear in the present case that the Tribunal considered whether reg.1.05A(1)(b) applied to the applicant and made an adverse finding in para.60:

    60. It has been claimed by the applicant that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. As indicated above, the definition of an aged dependent relative is that they have been dependent upon the Australian relative (the sponsor) for a reasonable period, and remains so dependent. The tribunal has found that the applicant was not wholly or substantially reliant upon the sponsor for financial support, both during the time that he has been in Australia and for a period during which he was resident in Uruguay, making a reasonable period at the time of the application. Accordingly, the applicant does not meet the definition of a dependent of the sponsor in reg.1.05A(1)(b).

12. Mr Turner maintained that dependence on both nieces would give rise to satisfaction of the requirement of being dependent within reg.1.05A(b).  For the reasons earlier given, the Tribunal was correct in holding that reg.1.05A(1)(b) applied to the other person, in the singular, and did not have application to both nieces.  For these reasons, ground 1 of the application is not made out.

13. In relation to the second ground, Mr Turner maintained that a reasonable period should take into account the age of the applicant and his remaining life expectancy in the context of determining whether or not what was identified was a reasonable period.  It is clear that the Tribunal took into account that life expectancy and, relevantly, said:

    50. The tribunal does not accept this claim. Just as it is claimed that six months represents between 5 to 7.5% of the applicant’s life expectancy, similarly it could be argued that the six months represents only a small part of the applicant’s life at 0.006%. The tribunal is also not satisfied that the relationship the applicant has with his extended family in Australia or the circumstances he may face in Uruguay are relevant when considering whether the applicant has been dependent upon the sponsor for a reasonable period.

    51. The stated purpose of the applicant’s entry into Australia was on the basis that the applicant was granted a subclass 676 Tourist visa. As part of the requirement for the grant of that visa, the applicant is required to state that he genuinely intends to visit Australia temporarily. The statement by Ms Lacroix claims that after finding there were no care options for the applicant in Uruguay “it was decided to bring him to Australia for a visit”. It appears, therefore, that the care arrangements for the applicant in Australia were unusual and planned to only be temporary and that his normal arrangements were that he had in Uruguay. These were arrangements which been in place for some time and the sponsor would have had the opportunity, while the applicant was resident in Uruguay, to demonstrate that the alleged relationship of dependence was real and enduring, and more than just supporting the applicant whilst he is visiting Australia on a Tourist visa.

    52. The tribunal finds that any assessment of a reasonable period when the applicant has been dependent upon the sponsor must include a period of time prior to his arrival in Australia, when he was resident in Uruguay.

14. Mr Turner put that the proposition by the Tribunal that reasonable period “must include a period of time prior to his arrival” was an erroneous understanding of the requirement for a reasonable period and that there was no requirement under the statutory provisions that required the reasonable period to be assessed by a reference to a period of time prior to arrival in Australia. 

15. I accept Mr Cleary’s submission that the Tribunal, was referring to the circumstances of the present case in the assessment of a reasonable period and was making a finding of fact in respect of the assessment of a reasonable period in respect of this particular applicant. The Tribunal took into account all the matters identified, relevantly, in para.51 of the Tribunal’s reasons in determining what was a relevant period. In substance, Mr Turner’s submissions in relation to ground 2 are an impermissible challenge to a finding of fact made by the Tribunal as to a reasonable period in the circumstances of this case.  Further, to the extent that it is submitted that the Tribunal had to specify what a reasonable period is, I reject that submission.  For these reasons, ground 2 of the application is not made out.

16. In relation to ground 3, Mr Turner took the Court to the careful submissions that he had prepared and provided to the Tribunal on 2 February 2015 after the hearing and, relevantly, to a request inviting the Tribunal to take steps, if the application was otherwise unsuccessful, of a kind that might invite the Minister to exercise his powers under s.391. Mr Turner identified that the guideline to which the Tribunal was entitled to have regard identified in para.11 of the PAM3 that a Tribunal member may consider that a case should be brought to the attention of the Minister.

17. In addition to the above submission Mr Turner brought the Court’s attention to the transcript, annexed to the affidavit of Mary Elinor Corkhill sworn 28 May 2015, in which the Tribunal member, relevantly, said:

    The other thing I have raised with Mr Turner is that most of the things that I have been hearing today from your family is that there are a lot of special personal reasons as to why the visa should be granted. Those reasons may not necessarily be what I can do under the law but would be - which might be taken into account in giving special consideration to the circumstances. And the only person who has the power to do that is the Minister. One of the things that I can do is that even if I affirmed the decision is refer it to the Minister for his intervention. Whether I do that or not does not stop you from bringing your own application to the Minister for intervention. But because it comes from the Tribunal it might, I don't know, but it might give some weight to the Minister looking at the case closely.  ( Emphasis added)

18. The member, in para.67, said as follows:

    67. The applicant has requested the tribunal support an application for Ministerial intervention. No further submissions were provided by the applicant’s agent after the hearing in support of this request. It is noted that at this time the applicant has not provided a certificate that he meets the medical criteria in PIC 4005. This assessment has been deferred pending the receipt of further information.

19. Mr Turner correctly advanced that the proposition no further submissions were provided was wrong, and it was on that basis that Mr Turner sought to argue that there had been a failure to properly consider the applicant’s claims.  The difficulty confronting Mr Turner in this regard is that the Tribunal clearly did have regard to the letter dated 2 February 2015 and, indeed, summarised the submissions in para.32 as follows:

    32. The applicant’s agent provided submissions in the letter to the tribunal dated 2 February, 2015. In those submissions, the following was argued:

    ·   The applicant was claiming to be a dependent of the sponsor based on the criteria in reg.1.05A(1)(b) that he is wholly or substantially reliant upon the sponsor for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions;

    ·   That definition does not contain any consideration of the relevant dependence on one or more persons, but simply requires that the applicant is financially dependent upon the other person;

    ·   The applicant can be dependent on both his nieces to meet the definition of being wholly or substantially reliant on “the other person” as this should be interpreted as being in the plural and therefore including both nieces as sponsors;

    ·   The costs of age care in Uruguay are such that the applicant’s pension would not meet those expenses;

    ·   The applicant’s accommodation in Uruguay needed renovation which would be expensive;

    ·   As the applicant is old with a life expectancy of only 10 to 15 years, both a substantial and reasonable period to his circumstances should only be six months, that being the period of time that he has been in Australia; and

    ·   If the tribunal did not remit the matter to the department the applicant would ask the tribunal to support an application for Ministerial intervention.

20. Relevantly, the last dot point clearly shows a reference to Mr Turner’s request to support an application for ministerial intervention.  In these circumstances, notwithstanding the error in para.67 in saying that no submissions were provided by the applicant in support of the Ministerial intervention, it is clear that the Tribunal did have regard to those submissions and that this was not an error in the application of any statutory provision.  Further, it is not an error from which I infer that the Tribunal had failed to have regard and to consider the applicant’s claims. 

21. It is clear from the decision as a whole that the Tribunal addressed the applicant’s claims. Accordingly, there is no jurisdictional error of the kind identified in ground 3. I would, however, embrace the proposition that I understand why the delegate referred to the special consideration to the circumstances of this case that might warrant reconsideration in respect of the powers under s.391. However, the delegate was not under any obligation to refer the matter to the Minister, and there was no jurisdictional error by reason of not doing so.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015