Fernandez v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 113

[2016] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S272 of 2015

B e t w e e n -

NERVO WALTER AMADO FERNANDEZ

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 MAY 2016, AT 9.33 AM

Copyright in the High Court of Australia

MR D.L. WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MS A.F. KNOX, for the applicant.  (instructed by HBA Legal)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear with my learned friend, MR M.P. CLEARY, for the first respondent.  (instructed by DLA Piper Australia)

FRENCH CJ:   Yes, Mr Williams.  I am sorry, there is a submitting appearance for the second respondent.

MR WILLIAMS:   That is so, yes.  Your Honours, the application raises three proposed grounds of appeal raising four special leave questions.  Each of the first two grounds of appeal would require success on the Acts Interpretation point.  Assuming success on that point, the first ground would require success on a construction point that is concerned with the “time of application” heading in the Migration Regulations.  The second ground of appeal would require success on a question of construction as to whether sponsorship of one of two persons upon whom the applicant is dependent is sufficient. 

Could I deal, firstly, with a matter that arises in my friend’s submissions.  Neither of those grounds of appeal involves any challenge to a finding of fact that there was only one sponsor at the time of the application.  Your Honours will have observed that a notable feature of the Federal Court’s decision is that the matter was determined on the basis of the notice of contention based upon the “time of application” criteria. 

His Honour Justice Robertson in the Federal Court did not find it necessary to ultimately determine the Acts Interpretation point but his Honour’s judgment contains an analysis of that issue at paragraphs 86 to 91, upon which the applicant relies and adopts. 

So far as the Acts Interpretation point is concerned, that Act is made applicable to the Migration Regulations by section 13(1)(a) of the Legislative Instruments Act as it then was - it is now the Legislation Act.  The section 23(b) issue involves a consideration of whether words in the singular include the plural, in particular, the words “relatives” and “sponsors” as it appears in the relevant regulations.  The other construction issue is whether there is a contrary intention within the meaning of section 2(2). 

The applicant’s argument involves an application of section 23(b) to the relevant regulation such that the word “relative” includes the plural “relatives” and “sponsor” includes the plural “sponsors”.  That question of construction to which the first special leave question is directed has implications beyond clause 838, that is, the particular visa with which we are concerned.  There are scattered throughout the various criteria relative visas, including aged, dependent relative visas, remaining relative, orphan relative and designated parent relative visas both temporary and permanent. 

The sponsorship requirements are also littered throughout the various subclasses of the Migration Regulations.  The various examples are listed in paragraph 37 of our written submissions.  Dependency is also a key feature of a number of subclauses including subclauses 101, 802 and 820.  The point we get from that, your Honours, is that the issue is one of broader application to the particular – than just to the particular subclass with which we are concerned.

FRENCH CJ:   I am sorry, can you just explain to me how you deal with the Tribunal’s finding that there was only one sponsor?

MR WILLIAMS:   At the time of the application?

FRENCH CJ:   Yes.

MR WILLIAMS:   We accept that.  So far as the first ground is concerned, we say that it is not fatal that there is – was only one sponsor at the time of the application so long as there were two by the time the matter was to be ultimately determined.  So far as ground 2 is concerned, we submit that on a proper construction of the regulation, sponsorship by one of the two relatives ‑ ‑ ‑

FRENCH CJ:   A position can change as at the time of decision.

MR WILLIAMS:   The position can change in the sense that there can become more than one sponsor prior to the time when the decision is to be made on the proper construction, we submit, of the Act.  But, alternatively, and this is the ground 2 point, we say that sponsorship by one of two of the relevant relatives suffices.  So there are two discrete bases upon which we put the matter. 

So far as the clause 23 contrary contention issue is concerned, we respectfully submit that the consequence of clause 23 not applying to the concept of relatives, sponsors and persons would be – and, in particular, to the dependants that are at the heart of those various criteria, would be quite unsatisfactory. 

We say that because in circumstances where dependency exists on more than one person and in equal shares, and one often would find this in a family situation where relatives would be jointly looking after an aged dependant, if the contrary intention was to apply to the definition of “dependency” in 1.05A of the Migration Regulations, this is at 86 of the application book, we could have a situation where there was a practical impossibility of such a person ever being dependent. 

As is the case here, if there is joint dependency, then unless the contrary intention applies – I am sorry, section 23(b) would mandate that unless a contrary intention applies there could be no person who would be capable of being the relevant applicant – sorry, relevant sponsor for sponsorship. 

The situation could also arise where there is more than two, three people, for instance, siblings, children, the like, if each of those are equally responsible for the upkeep of the parent or the relative, unless the Migration Regulations have section 23 applied to them, we could have a situation where that person was incapable of being dependent upon anybody within the meaning of the regulations.  We point to that as a feature as to why a contrary intention should not be held to be applicable.

KEANE J:   Mr Williams, could I just ask you, how was the availability of the second sponsor on whom your client was dependent - how was that made manifest to the decision‑maker?

MR WILLIAMS:   It was made manifest by the execution of a document, the sponsorship document, way after, of course, the time of initial application and the provision of that document to the Tribunal in the course of the application.

KEANE J:   Where do we see that dealt with by Justice Robertson?

MR WILLIAMS:   Sorry, your Honours, it is in here.  Yes, paragraph 66 is one part of the judgment - I am grateful to my friend - where that matter is referred to.  Your Honours will see – this is at application book 57:

that only one sponsor was proffered at the time of the application for the visa –

and that the other relative  provided the undertaking required only on a later date, on 11 February 2015.

KEANE J:   Whereas the application had been submitted in June 2012.

MR WILLIAMS:   Yes, exactly.  So we had - one of the two was a sponsor from the outset.  The second was a sponsor by the time the application came to be determined.  We submit on the basis of the construction for which we contend that that is sufficient.  That involves, first of all, the application of section 23 to the relevant parts of the regulation and, in that respect, we adopt what Justice Robertson said in relation to that matter from paragraphs 87 and following – from 86 really on application book 61 – from pages 61 through to the conclusion at paragraph 91 his Honour went through the various arguments and came to the view in 91:

As presently advised, I see nothing in the text or context of reg 1.05A of the Migration Regulations, dealing with whether a person is dependent on another person, which provides a contrary intention –

So, we submit that at least there is an arguable proposition there.  His Honour seems to have accepted - it is true that his Honour said that that was not with the benefit of full argument but, nonetheless, his Honour considered and dealt with the proposition favourably to the way in which the applicant wishes to put the question before this Court.

So far as the importance of the special leave question is concerned, this is a matter, of course, that travels beyond this particular regulation in the manner that I have addressed at the outset and it involves an important question of statutory construction.  At the moment, albeit the decision of the Federal Circuit Court is to the contrary, this judgment provides some correction to it but it is inconclusive in the sense that it is not a finally determined position.  We ask this Court to finally determine that position.

FRENCH CJ:   So, the question of construction is one of the construction of this particular regulation in the light of section 23?

MR WILLIAMS:   It is, but with consequences that travel beyond this particular regulation in the manner in which I have referred.  The second special leave question concerns the “time of application” subheading and the consequences that that subheading has in the context of the Migration Regulations. 

This ground was found to be dispositive against the applicant by the Federal Court.  It reflected the Minister’s success in the Minister’s notice of contention that is set out in paragraph 43 at appeal book 50.  The Federal Court dealt with the matter at paragraphs 68, 70 and 71 finding that the fact that there had not been two sponsors at the time of application was fatal to the application.  As this Court, however, explained in Berenguel v Minister for Immigration and Citizenship the fact that a criteria is part of a group of clauses in Schedule 2 headed “Criteria to be satisfied at the time of application” ‑ ‑ ‑

FRENCH CJ:   There was a “this does not compute” problem between the heading in Berenguel and what appeared below it.

MR WILLIAMS:   That is one way of describing it.  If that is an accurate way of describing it, it is one that is equally applicable ‑ ‑ ‑

FRENCH CJ:   I think a “grammatical disconnect” was the expression we used.

MR WILLIAMS:   That is what we have here as well, your Honours, and that is because of the way in which the sponsorship provisions work.  If your Honours go to page 88 of the application book where one sees the criteria to be satisfied at the time of application, your Honours will see 838.212 is the “aged dependent relative” criterion and then 838.213 is the “sponsorship” criterion.  Then your Honours will see how each of those criterion find their reflection in the “time of decision” criteria at 838.22.  Your Honours will see the difference in language between the “age dependent relative” criteria – there is an express criterion of continuity, 838.221:

The applicant continues to satisfy the criterion in clause 838.212.

That is in contradistinction to 838.213:

The applicant is sponsored –

and then 838.227:

The sponsorship mentioned in clause 838.213 has been approved by the Minister and is still in force.

Your Honours will see the difference in language that is there reflected between the two different types of criteria and, in circumstances that are somewhat analogous to those that one found in Berenguel.  The other point to note about the sponsorship undertakings is that they operate in a rather curious way.  If one goes to application book 86 to 87, your Honours see the sponsorship undertakings are referred to in 87 at point 1.20:

The sponsor of an applicant for a visa is a person . . . who undertakes the obligations stated in subregulation (2) in relation to the applicant.

Then there is various criteria set out.  Subparagraph 3):

A person . . . who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor. 

One sees here parallels with what was occurring in the Berenguel situation where something that is to happen afterwards, namely, the approval of the Minister to the sponsorship and then the sponsor entering into the sponsorship can only occur after the application has been made.  So, in those circumstances, your Honours, we submit that there is a parallel between the line of reasoning that this Court dealt with in Berenguel and that which is applicable in this case.

KEANE J:   Except those provisions that you have taken us to would work perfectly well if there had been only one sponsor at the time of the application. 

MR WILLIAMS:   That is true enough but that does not ‑ ‑ ‑

KEANE J:   Is that not a difference – this case and that?

MR WILLIAMS:   There are differences but it is a question of whether, in circumstances where there is more than one possible interpretation that is open, which one is compelled by the language, the structure and the consequences that might flow from the various differences in interpretation that one might give to the provision.  In this case, it would seem that the sponsorship obligation is something that is a rather unusual sort of obligation because it does not seem to be complete until some time after the Minister approves the sponsor as being a sponsor and then a form being signed by the sponsor. 

KEANE J:   That would suggest that the Minister is afforded the opportunity to consider the question whether those proposed, whether they are single or plural in the application, are to be approved as sponsors. 

MR WILLIAMS:   Precisely, but it involves that decision being made at a time after the application has been submitted. 

KEANE J:   But why does it not suggest that the people who are proposed as sponsors at the time of the application are the people whose suitability to be approved can be examined by the Minister in the interim?

MR WILLIAMS:   It can tend in that direction but it is not the only way in which that provision could be construed and a construction for which we contend, we submit, is consistent with the overall purpose of the regulation.  The Minister still gets to decide whether or not the sponsor is an appropriate person or not.  The Minister still gets to consider whatever other aspects of the sponsorship he or she may wish to consider.  It does not do violence to the overall structure and yet provides a mechanism by which some flexibility might arise in these circumstances. 

One can imagine circumstances, for instance, where there is years between the – as is this case, where there is years between the time at which an application is filed and when it is finally determined.  In those periods of time the economic circumstances of the person who was originally the sponsor might change.  The willingness of the person who was originally a sponsor might change. 

The purpose of the legislation is served by the Minister determining at the time when he makes his determination whether the person who has made the application – has provided the sponsorship undertaking is a worthy person for that role. 

So, what your Honour says to me is right, it is capable of being construed differently than the way in which we construe it but it is equally capable of being construed in the way for which we contend and that construction is consistent with the purpose of the legislation and creates no difficulties.  We submit the contrary position can and, indeed, has in this case given rise to very real difficulties and they are difficulties of a mere formal nature, nothing of substance is affected by the construction for which we contend.  Ultimately, the Minister decides.

FRENCH CJ:   I think you wanted to say something – I see the light has come on – do you want to say something very briefly about your section 351 point?

MR WILLIAMS:   I am content to rely on what we have said in writing in relation to that, save for this point.  Your Honours have observed that the Minister has submitted that it makes no practical difference whether the Tribunal is required to consider a submission made to it or not because there is another way in which the applicant may make a plea to the Minister.  The plea, however, is different qualitatively because if it is supported by the ministerial – sorry, by the delegate delegating his decision then a different mechanism is followed under the administrative machinery and it gets considered in a different way.

FRENCH CJ:   The PAM3 document does not, as it were, confer a power on it, it just assumes a possibility where the Tribunal might consider ‑ ‑ ‑

MR WILLIAMS:   Yes, there is a different fork in the road depending upon whether there is support from the delegate in which case there is – not an obligation but a willingness under the machinery to consider whether or not to exercise the power, whereas if there is no recommendation it is capable of being bogged down into the bureaucracy and being treated in a different way.  I think we have said otherwise what we wish to in writing in relation to that ground, your Honours. 

FRENCH CJ:   Thank you, Mr Williams.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, firstly if I could just return to a remark of Justice Keane a little earlier that the provisions work well if there is only one sponsor at the time of application.  This is such a case and the section 23 issues that my learned friend seeks to raise do not truly arise in this matter essentially because of the basis upon which Justice Robertson decided the matter.  He found that there was only one sponsor at the time of application and the requisite dependency was not shown on that person.  In a factual scenario where there is only one sponsor, the question of whether or not there can be plural dependencies of the kind envisaged by the regulations upon plural sponsors simply does not arise.

Your Honours, what I would like to do is to focus on the words of the relevant criteria for a moment just to identify four key aspects of the way in which the applicable criteria in this case interrelate.  If I could ask your Honours to go to page 120 of the book, that is subclass 838 heading “Aged Dependent Relative” and if your Honours skip down to 838.21 “Criteria to be satisfied at time of application” and, in particular, drop down to 838.212 that requires that:

The applicant is an aged dependent relative of an Australian relative.

Now, I will come to the definition of “aged dependent relative” in a moment but if we go immediately to the next clause 838.213:

The applicant is sponsored:

(a)       by the Australian relative –

I can stop reading at that point.  There is no dispute that the remainder is fulfilled.  So, what we have is a dual requirement, not just that the person be an “aged dependent relative” on some Australian relative but that he be an “aged dependent relative” of an Australian relative and that that person be the sponsor.  That duality is critical in this case.  Then the definitions of “aged dependent relative” and “dependent” are supplied earlier on pages 113 to 114.  Page 113 – “aged dependent relative - skipping over the immaterial words- “means a relative who”:

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

FRENCH CJ:   The “reasonable period” criterion was not satisfied in respect of ‑ ‑ ‑

MR JOHNSON:   Yes, the Tribunal so found as a matter of fact.  The Tribunal, in particular, found it had to look at what was going on in Uruguay as well as what was going on in Australia and found that he was not requisitely dependent on Ms Arrelo during that time.  Then, the definition of “dependent” is at 1.05A on page 114 and if your Honours focus, in particular, upon 1.05A(1)(a)(i) and (ii):

(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 . . . 

(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person –

So, those definitions inform the meaning of “aged dependent relative” back on page 120 in clause 838.212.  But the next two important features that I need to emphasise are the element of continuity in all of this.  If one then goes to 838.22 on page 121 “Criteria to be satisfied at time of decision”, your Honours will see in 838.221:

The applicant continues to satisfy the criterion in clause 838.212.

In other words, he continues to be the dependent relative of an Australian relative and then as to the criterion in 838.213 ‑ ‑ ‑

FRENCH CJ:   You can read that in two ways, I suppose – continues to be the aged dependent relative of the Australian relative nominated at the time of application or continues to be an aged dependent relative of an Australian relative, not necessarily the same.

MR JOHNSON:   That would be aided, I think, if not for the next difficulty that I come to and that is that if you go to 838.227 that requires:

The sponsorship mentioned in clause 838.213 has been approved by the Minister and is still in force.

FRENCH CJ:   It anchors it back to the first.

MR JOHNSON:   It anchors it back - that is right.  So what one needs is to show an aged dependent relative upon someone who is a sponsor at the time of the application and then that has to continue at the time of the decision.  In this case, and it is now common ground, there was only one sponsor at the time of application.  Another person did provide a sponsorship form whilst the matter was before the Tribunal but the Tribunal found in paragraph 39 of its reasons that there was no evidence of that sponsorship being filed with the Department.

FRENCH CJ:   You would say, I suppose, that even if, contrary to your primary submission, you could change the sponsor from time of application to time of decision that the finding of fact of the Tribunal means that the criteria to be satisfied at the time of application simply was not satisfied.

MR JOHNSON:   Indeed, I put it broadly.  I would say that the whole plurality argument whether one is focusing upon – falls away.

FRENCH CJ:   That does not work unless it can operate in respect of the time of decision criterion and if it is not a necessary condition of entry into the whole process that you do have a dependency at the time of application.

MR JOHNSON:   That is right.

FRENCH CJ:   The problem is the gateway criterion.

MR JOHNSON:   That is right, that is right, and that is the fundamental problem that here there was only one person who was the sponsor at the time of application.  The Tribunal found as a matter of fact that the requisite relationship of dependency was not made out with respect to that person.

FRENCH CJ:   You would say it does not matter if he has satisfied the criteria at the time of decision because he did not satisfy them at the time of application.  

MR JOHNSON:   That is right and the criteria for decision require that sponsorship mentioned in 838.213 ‑ ‑ ‑

FRENCH CJ:   That is the argument about continuity anyway and I am assuming that against you for the moment.

MR JOHNSON:   That is right, that is right.  So that is ‑ ‑ ‑

KEANE J:   But even on your argument – is not your argument that on the findings of fact by the Tribunal there was only ever one approved sponsor?

MR JOHNSON:   That is right, and with respect to Berenguel, if I could just make six fairly short points of distinction between this case and Berenguel?

FRENCH CJ:   It is amazing you could find six points.

MR JOHNSON:   Well, I have had to take what your Honour put very, very succinctly and break it up.  But, firstly, in this case we say the text is connected with the heading, that is, the text of the provisions that I have read to your Honours is connected with the heading.  The heading simply supplies the points of time at which those particular criteria must exist and continue or remain in force. 

Secondly, Berenguel accepted that section 13 of the Acts Interpretation Act had the result that the heading could be regarded as part of the regulation and may therefore inform their construction.  But Berenguel was concerned with a certain standard of English.  This case is concerned with a relationship at and including two points of time and that is the third of the points. 

In Berenguel, and the fourth is really a development of that – in Berenguel your Honours will recall that the particular case concerned a requirement of regulation 1.15B that a particular test be conducted “not more than two years before the day on which the application was lodged”.  The Court found that was susceptible of a construction that the test needed to be conducted no earlier than two years before the application was lodged, so construed would not have required the test to be conducted before the application was lodged.

Then the Court found, informed by the purpose which was to establish that the applicant currently had an appropriate standard of English, that the rival interpretation was unfair and absurd, whereas here, in the present case, because we are concerned with a relationship over time – a relationship with two characteristics over time, because it is a matter which is open to the regulation maker to so provide, it cannot be said that there is any equivalent unfairness or absurdity. 

Of course, also it cannot be said that there is a disconnect between the text and the headings.  The last point, in effect, that the text here is clear, in my submission, in requiring that dual relationship at two points in time.  Then, your Honours, if I could just move to the section 351 ground.

FRENCH CJ:   Yes.

MR JOHNSON:   In relation to the section 351 ground, I think it will be fairly brief.  Firstly, there is no duty cast by the Act upon the Tribunal to consider asking the Minister to intervene and exercise the power under section 351, the non‑compellable power, under section 351.  Justice Robertson put it a slightly different way which we would also embrace, namely, that it was not part of the review under section 348.

KEANE J:   Was it part of the delegate’s function?

MR JOHNSON:   Was that part of the delegate’s function?  It was not a part of what he had to do to decide the visa application, no.

KEANE J:   Well, then it is difficult to see how it could be part of the review.

MR JOHNSON:   That is so, but the Tribunal’s duty is cast by section 348 which is to review the – what was then the MRT reviewable decision, it is now called a Part 5 reviewable decision which is the delegate’s decision which is whether the person qualifies for the visa or not.

KEANE J:   Yes.

MR JOHNSON:   That is reflected in the powers of the Tribunal under section 349 which were essentially to confirm that the delegate’s decision or to vary it or to set it aside and substitute another, so that ‑ ‑ ‑

FRENCH CJ:   The contingency that is considered in paragraph 11 of the relevant part of the procedure advice manual, I think, appears at paragraph 48 of his Honour’s judgment at page 52.  He says:

When a review tribunal member considers a case should be brought to my attention –

So that is consistent with a notion that it is something that sits outside the review process, the statutory review process, I suppose.

MR JOHNSON:   Yes, and that guideline, we say, is not a source of an illegal obligation. 

FRENCH CJ:   I think Justice Robertson made some reference to Gray’s Case and his own decision in Lee and also Mandalia.  All of those cases concern policy guidelines relating to the actual application of a statutory – discharge of a statutory function by a decision‑maker. 

MR JOHNSON:   Yes, that is true, too.  I think Gray was a policy relating to the administration of a discretionary power.

FRENCH CJ:   There was a question then in Gray as to whether, you know, a policy generated in a situation where you had such broad discretions can be treated as contemplated by the legislation amounts to – can, in some circumstances, amount to a mandatory relevant consideration or give rise to error if it is misconstrued and misapplied.

MR JOHNSON:   That is right, but not this case because it is not something which is relevantly equivalent to, for example, the ministerial policy guiding the deportation discretion in Gray.  Your Honours, that is, essentially, the answer to the 351 point.  I do add, however, as a last point,

that the Tribunal at paragraph 68 of its reasons did say that it would not support an application for ministerial intervention saying it was not satisfied:

that there are such unique or exceptional circumstances –

I note that the first instance judge, His Honour Judge Street, found at paragraph 20 of his reasons, the Tribunal did have regard to the request and the last dot point of paragraph 32 of the Tribunal’s reasons:

If the tribunal did not remit the matter . . . the tribunal to support an application for Ministerial intervention.

Of course, my friend says, well, no, his case is not that it should have supported the case for ministerial intervention but it should have considered, in effect, putting forward its own.

FRENCH CJ:   The request for ministerial intervention would ordinarily be made by the party seeking the benefit of the intervention.

MR JOHNSON:   Ordinarily, yes, yes.  That is not to say that an officer or a tribunal cannot put it up.

FRENCH CJ:   That is, as a suitable case.

MR JOHNSON:   But if that person thinks it is a suitable case.  But it comes back to the point that there is no duty to do that or, indeed, to consider doing it.  If the Court pleases, those are the Minister’s submissions.

FRENCH CJ:   Thank you.  Yes, Mr Williams.

MR WILLIAMS:   Dealing with the last matter first, your Honours, the PAM 3 guidelines, to which your Honour referred, have, in paragraph 11, the qualitative difference between a submission that is made with the benefit of positive statements from the Tribunal and otherwise.  Our submission is merely this, that in circumstances where the relevant provision, as found under the section of the Act that deals with the review processes – review powers and jurisdiction of the Tribunal – that a submission made to the body that it should exercise the power that it has, ought to be considered.

His Honour found that there was a jurisdictional error in the fact that the submission was misconstrued as to what was being found and that is to be found at paragraph 83 of his Honour’s judgment, page 61.  Your Honours will see in the last sentence:

I observe that I might well have considered that the Tribunal’s exercise of its function miscarried, primarily on the basis that it fundamentally misunderstood the application that had been made to it which was that the Tribunal itself refer the matter to the Minister.

Dealing then with the other grounds, I would make this observation that in connection with the factual question about the reasonable period and whether one needed ‑ ‑ ‑

FRENCH CJ:   I am sorry.  That observation – just before you leave 83 – that was contingent upon accepting that the question of - the ministerial intervention was within the Tribunal’s duty of review, was it not?

MR WILLIAMS:   Of course, and his Honour found against us on that point.

FRENCH CJ:   Yes. 

MR WILLIAMS:   But lurking beneath that is the relevant jurisdictional error if there was an obligation to take that into account.  Can I just refer your Honours to paragraph 73 of the judgment in connection with the factual question about whether dependency was to be looked at in terms of only after the period when the applicant arrived in Australia or before?  His Honour found at 73 that there was an error in the Tribunal’s reasoning in comparing the normal and the temporary saying that:

On that basis, and if it were relevant to do so, I would not accept the approach of the primary judge which was to say that this was merely fact‑finding by the Tribunal.  A question of construction appears to be involved in the Tribunal’s approach.  

Dealing then with the construction of the relevant regulation, as I said at the outset, there are two bases upon which we seek to deal with the matter.  The second ground of appeal involves a construction of this provision that means the section should be capable of encompassing the Australian relative or one or more of the Australian relatives, upon whom the applicant was dependent, in other words, the sponsorship only needs to be by one of the two. 

One can read 838.213(a) as involving only one sponsor at the time of the application and that that sponsor, albeit that there are other people who are also jointly responsible for the upkeep of the applicant do not provide the sponsorship.  That construction, of course, is also consistent with the overall purpose of the legislation because it allows the Minister to consider whether the sponsorship of one of the two persons upon whom the applicant

is dependent suffices.  This is all about whether the taxpayer is sufficiently protected from the burden of having the applicant fall on the public purse for the first two years whilst they are the subject of their visa. 

So, in our respectful submission, there are available means of construction by which the applicant could succeed, either based upon the sponsorship not being required by both at the outset so long as it is offered by both at the time of the decision.  The second way in which we put it is, that one of two persons upon whom the applicant is dependent is sufficient for sponsorship purposes, so long as that person continues to be the sponsor right up until the time of the application.  If it please the Court.

FRENCH CJ:   Thank you, Mr Williams.

In our view, the decision of the Federal Court is unattended by sufficient doubt to warrant the grant of special leave.  Special leave will be refused with costs.

AT 10.19 AM THE MATTER WAS CONCLUDED