He v Minister for Immigration

[2009] FMCA 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1142

MIGRATION – Review of decision by Migration Review Tribunal – application of policy by Tribunal members – policy to be considered only when lawful – voluntariness to be considered in determining a ‘reasonable period’ – irreparable severability a relevant consideration – jurisdictional error – application allowed.

Migration Act 1958 (Cth), s.396
Migration Regulations 1994 (Cth) (as at 15 August 2005), reg.1.15, item 1123A(4) Schedule 1, part 115 Schedule 2

Prasad v Minister for Immigration & Citizenship [2007] FCA 1739
NelsonBagus v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1131; (1994) 33 ALD 601; (1994) 50 FCR 396
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158
Hneidi v Minister for Immigration & Citizenship [2009] FCA 983
Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65; 92 ALR 167; 16 ALD 611
Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634
Gerah Imports Pty Limited v Minister of Industry, Technology and Commerce [1987] FCA 456; (1987)17 FCR 1; 14 ALD 351
Green v Daniels [1977] HCA 18; (1977) 13 ALR 1; (1977) 51 ALJR 463
Perder Investments Pty Ltd v Elmer (1991) 31 FCR 480
He v Minister for Immigration & Anor [2008] FMCA 1437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1

Applicant: XIU ZHEN HE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1536 of 2009

Judgment of: Nicholls FM

Hearing date: 21 September 2009

Date of Last Submission: 21 September 2009

Delivered at: Sydney

Delivered on: 11 December 2009

REPRESENTATION

Counsel for the Applicant: Mr S Lloyd, SC

Solicitors for the Applicant: Kah Lawyers

Counsel for the Respondents: Mr JAC Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ in the nature of certiorari issue, quashing the decision of the second respondent made on 11 June 2009.

2. A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1536 of 2009

XIU ZHEN HE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 29 June 2009, and amended on 21 September 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), which affirmed the decision of a delegate of the respondent Minister to refuse the grant of Other Family (Migrant) (Class BO) visas to the daughter and grandson of the applicant now before this Court.

Background

1. The applicants for these visas, who are mother and young son, are both citizens of the People’s Republic of China (“China”), who were “nominated” for these visas by the applicant currently before this Court.

2. For ease of reference and clarity, I will refer to the applicant before the Court as the “review applicant”, and her daughter as the “visa applicant”. I will refer to her grandson as the second visa applicant.

3. The Minister has put before the Court a bundle of relevant documents (“Court Book”, “CB”).

4. The relevant background and context for this matter is helpfully set out in the review applicant's outline of submissions. I reproduce this background, with the omission of one matter concerning the citizenship of one of the visa applicant’s daughters (not relevant to the proceedings before the Court):

   “Background

   2. The primary visa applicant is the mother of four children, each of whom were born in Australia [CB 404 [18], CB 405 [20]]. The eldest child, Kitty, was born in 1994 and became an Australian citizen in 2004 by operation of law. The next two daughters, Alice and Eda were born in 1999 and 2001 respectively. The youngest child, Michael, was born in 2003.

   3. The primary visa applicant and her husband separated in October 2003 shortly after Michael’s birth [CB 405 [20]].

   4. On 29 March 2004, the three youngest children became party to proceedings contending that they could not be removed because they were not aliens (NSD 441 of 2004).

   5. In September 2004, the visa applicant commenced divorce proceedings against her then husband.

   6. On 30 September 2004, the visa applicant departed Australia for China. Her father was to bring to her in China her youngest three children, if the pending application was unsuccessful. It was unsuccessful.

   7. On 2 November 2004, a couple of days before the three youngest children were to be taken to China to be with their mother, the father of the children (who was and apparently remains in Australia unlawfully) took the two daughters to dinner and then never returned with them. As far as is known, they remain with him…

   8. The visa applicant has not had any form of contact with the two children taken by the father since October 2004.

   9. On 5 November 2004, the visa applicant’s father brought the youngest child, Michael, to the visa applicant in China. That child is also a visa applicant.

   10. In December 2004, the visa applicant was granted a divorce by the Family Court. [With reference to CB 50 it appears that it was in fact the Federal Magistrates Court, although this is of no consequence to these proceedings.]

   11. The visa applicant’s parents and all of her many siblings are permanent residents or citizens of Australia and have been so at all material times. She has no ‘overseas near relatives’ in China.

   12. In mid August 2005, the visa applicant applied for a permanent visa on the basis that she is a ‘remaining relative’ (Michael being a secondary applicant).” 

Relevant Regulations to the Act

1. With reference to Schedule 1 to Migration Regulations 1994 (“the Regulations”), the Other Family (Migration) (Class BO) visas applied for contained three sub-classes, of which sub-class “115 (Remaining Relative)” is one, being the only class in respect of which claims were advanced (see item 1123A(4)).

2. The criteria for this subclass of visa was, at the relevant time, set out in Part 115 of Schedule 2 to the Regulations. For current purposes the following is relevant:

   “115.21 Criteria to be satisfied at time of application

   115.211 The applicant is a remaining relative of an Australian relative for the applicant.

   115.22 Criteria to be satisfied at time of decision

   115.221 The applicant continues to satisfy the criterion in clause 115.211…”

3. Regulation 1.15 of the Regulations sets out the meaning of “remaining relative”:

   “1.15 Remaining relative

   (1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfied the Minister that:

   (a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

   (b) the other person is usually resident in Australia; and

   (c) if the applicant or the applicant’s spouse (if any) has an overseas near relative:

   (i) the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

   (ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and

   (d) the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and

   (e) if the applicant is a child who:

   (i) has not turned 18; and

   (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas ―

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2) In this regulation:

   overseas near relative, in relation to an applicant, means a person who is:

   (a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or

   (b) a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:

   (i) has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse (if any); or

   (ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse (if any) ―

   other than a relative of that kind who:

   (c) is an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d) is usually resident in Australia.

   (3) For the purposes of paragraphs (1)(c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.”

The Tribunal

1. By way of background and explanation, for the period between August 2005 (the making of the application for the visa) and 10 June 2009 (the making of the Tribunal’s decision currently before the Court) the following occurred:

   1)The application was refused on 24 November 2006 (CB 100 to CB 108).

   2)On 18 December 2006 the review applicant applied for review by the Tribunal (CB 109 to CB 116) (I note the review applicant was assisted by a lawyer, who also appears to be a migration agent (CB 113)).

   3)The Tribunal (as differently constituted) affirmed the decision to refuse the grant of the visas (CB 282 to CB to 306).

   4)By orders made on 21 October 2008 by this Court (Federal Magistrate Scarlett), that decision was quashed and the matter returned to the Tribunal (CB 309).

   5)The review applicant, the visa applicant (by telephone), her father (who is the review applicant’s husband), and their representative attended a hearing before the Tribunal on 17 February 2009 (CB 388). The Tribunal’s account of what occurred at the hearing is set out in its decision record (see [49] at CB 410 to [62] at CB 414). A number of submissions were also made by the applicant’s representative (CB 372 to CB 387 and CB 390 to CB 395).

2. The Tribunal accepted that the visa applicant was divorced from her husband and that they were living separately and apart on a permanent basis. It found that the visa applicant had two “overseas near relatives”, being her two younger daughters, who came within reg.1.15(2)(b)(ii) of the Regulations. The Tribunal accepted that, at some time in November 2004, the visa applicant’s former husband took the two children, and did not return them ([66] to [67]).

3. The Tribunal identified the central issue before it as being whether the visa applicant had had “contact” with her two younger daughters “within a reasonable period before making the application”, as referred to in reg.1.15(1)(c)(ii) (at [68]).

4. In this regard, the Tribunal accepted evidence before it that the visa applicant had left Australia to return to China on 30 September 2004, that up until that time her relationship with her daughters was “typically close”, and that she remained in contact with them during the first week after she returned to China. The Tribunal found, however, that she had not been in contact with them after that, and that therefore there was a period of 10 months preceding the making of the application, when the visa applicant was not in contact with her two younger daughters (at [68]).

5. The Tribunal reasoned that, for the purposes of the relevant Regulation, and in the circumstances of this case, it was appropriate to regard a longer period as a “reasonable period” in determining whether the visa applicant met the definition of a “remaining relative” (see in particular [75]).

6. The Tribunal ultimately concluded that a period of three years was a “reasonable period” for the purposes of reg.1.15(1)(c)(ii). On that basis, and on the evidence before it, it found that the visa applicant had had contact with her two younger daughters within a reasonable period before making the application, which it found to be the three years beginning on 15 August 2002. Therefore the visa applicant was found to be unable to satisfy reg.1.15(1)(c)(ii), and that she was not a remaining relative as defined for the purposes of the Regulations. In these circumstances, she did not satisfy cl.115.211 of Schedule 2 to the Regulations. The Tribunal affirmed the decision not to grant the visas ([82] to [84]).

Before The Court

1. At the hearing before the Court, Mr S Lloyd SC, appeared for the review applicant. Mr JAC Potts of counsel appeared for the first respondent.

2. Leave was granted to the review applicant to file an amended application (no objection was taken) and written submissions on behalf of the application. The Court also had before it the first respondent’s outline of submissions.

3. The amended application is in the following terms:

   “1. The Second Respondent committed jurisdictional error by failing to apply the correct legislative test as set out in Regulations 115.211, 115.221, and 1.15 of the Migration Regulation 1994 (“the Regulations”).

   Particulars: Background

   (a) The applicant sponsored her biological daughter (“the visa applicant”) for a class BO, Other Family (Migrant) visa. Within that visa Class, the only visa subclass of relevance was the subclass 115 Remaining Relative visa.

   (b) Pursuant to Regulations 115.211 and 115.221, the visa applicant was required to show that she met the Regulation 1.15 definition of Remaining Relative. Relevantly, the visa applicant was required to show that she had not had any contact with any overseas near relative within a reasonable period before making that application: Regulation 1.15(1)(c)(ii) (paragraph 68 of the decision record).

   (c) The second respondent made the following findings of fact:

   (i) The visa applicant had two overseas near relatives, being two of her children who were presumed to be living in Australia: 66 of the decision record; and

   (ii) There had been no contact between the visa applicant and the two overseas near relative children in the 10-month period prior to the application being lodged:  paragraph 68 of the decision record.

   The second respondent correctly held that the central issue in this case was the determination of the length of time which constituted a “reasonable period” in this case.

   Particulars: Errors of Law

   (d) In considering whether or not the visa applicant had had contact with these two children within a reasonable period, the Second Tribunal incorrectly held that the intention of the infant children was relevant, when Regulation 1.15 does not specify intention as an issue as an element of the test of Remaining Relative: paragraph 75 of the decision record.

   (e) In considering whether or not the visa applicant had had contact with these two children within a reasonable period, the Second Tribunal incorrectly held that a longer period of non-contact is required when the relationship being considered is a very close one - such as that of mother and daughter, when Regulation 1.15 does not specify this issue as an element of the test of Remaining Relative: paragraph 75 of the decision record.

   (f) In considering whether or not the visa applicant had had contact with these two children within a reasonable period, the Second Tribunal incorrectly held that a longer period of non-contact is required when the noncontact between the parties was involuntary and would have continued to be close but for the circumstances that the visa applicant was forced to return to China and the father of the children did not return them to their maternal grandparents for their return to China as planned, when Regulation 1.15 does not specify this issue as an element of the test of Remaining Relative: paragraph 75 the decision record.

   (g) In considering whether or not the visa applicant had had contact with these two children within a reasonable period, the Second Respondent erred by purporting to apply a policy that was repugnant to the legislation.

   2. The Second Respondent committed jurisdictional error by taking into account a number of irrelevant considerations in considering whether or not the visa applicant had had contact with her overseas near relative children within a reasonable period prior to the visa application being lodged.

   Particulars

   (a) The applicant repeats the particulars set out in paragraphs 1(d) – (g).”

The Issue

1. Both parties agreed that the issue for consideration was whether the Tribunal erred in its construction, and understanding, of reg.1.15(1)(c)(ii). The applicant’s attack is on the Tribunal’s construction of that part of the Regulations, and, in particular, what constituted a “reasonable period”. In the circumstances of the current case, the Tribunal found that a reasonable period was three years, and that, given that the visa applicant did have contact with her two children, who for the purposes of the Regulations were “overseas near relatives”, within that reasonable period, she was therefore unable to meet one of the regulatory requirements for the granting of the visa. That is, because she did have such contact, she could not be seen to be a remaining relative such as to meet the relevant requirement for the visa.

2. There was no dispute between the parties as to the understanding and application of the relevant regulatory scheme up to that point. Mr Lloyd submitted relevantly that there is no definition of the term “reasonable period”, and that to determine what is a reasonable period requires regard to be had to the legislative context.

3. A point at which the parties differed centred around the applicant’s contention that the concept of a “reasonable period” concerns a measure according to which Australia is obliged to accept or not accept an applicant for this type of a visa, the context being whether the person has had contact with one or more “overseas near relatives” within a “reasonable period”, then family reunion with relatives who are resident in Australia will not be permitted.

4. Mr Lloyd relied on Prasad v Minister for Immigration & Citizenship [2007] FCA 1739 (“Prasad”) per Logan J at [21] for general support for this proposition. The respondent submits that any equation between the notions of “reasonable period” and a “measure according to which Australia is obliged to accept or not accept an applicant” is not the sole criterion for a visa of this kind, and should not be seen as the sole yardstick for acceptance or non-acceptance. The Minister’s position is that it is part of the broader scheme laid out by reg.1.15, and needs to be construed in that broader context.

5. Given what is set out below, it is not strictly necessary to decide between these two positions, particularly as, in this case, the overseas near relatives do not reside in any third country overseas, but on the best evidence available, are present in Australia, albeit without permission.

6. The critical issue for the Tribunal in the current case is whether the visa applicant meets the requirements of reg.1.15(1)(c). The question turned on what was a reasonable period for the purposes of this regulation.

7. The applicant’s grounds, as understood in light of submissions, provide three interrelated issues for consideration. I understand these to be:

   1)Whether the Tribunal purportedly applied a policy repugnant to the regulation. (The “Policy Repugnant to the Legislation” Issue.)

   2)The relevance to the central question as to whether the “no contact” between the visa applicant and her daughters was involuntary. (The “Involuntary Separation” Issue.)

   3)Whether the regulations require the relationship between the visa applicant and the overseas near relative to be irreparably severed. (The “Irreparably Severed” Issue.)

Policy Repugnant to the Legislation

1. The first issue requires some clarity to be framed around the word “policy”, both as used by the Tribunal in its decision record, and the submissions before the Court.

1. The Tribunal properly understood that in the current case reg.1.15(1)(c)(ii) required that the visa applicant not have had “contact” with an “overseas near relative” “within a reasonable period before the making of the application” (see [12] at CB 402).

2. The Tribunal sought to understand the terms “contact” and “within a reasonable period” with reference first to what was said in NelsonBagus v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1131; (1994) 33 ALD 601; (1994) 50 FCR 396 (“Bagus”) per Whitlam J.

3. In that case the Court was concerned with an earlier form of the relevant regulation which referred to “contact” “during a reasonable period”. In his consideration of the construction of “contact during a reasonable period”, Whitlam J compared that phrase with “contact” “within a reasonable period”, this of course being the phrase applicable in the current case (see [12] – [13] at CB 402 to CB 403).

4. The Tribunal noted (at [13]):

   “As referred to above, the definition of a ‘remaining relative’ applicable in the present case refers to contact ‘within a reasonable period’, not ‘during a reasonable period’. This change was made by the Migration Amendment Regulations 1999 (No. 13), Statutory Rules 1999 No. 259, with effect from 1 November 1999. The relevant Explanatory Statement did not expressly refer to this change in the language of the definition but it clearly reflects the distinction drawn by Whitlam J between ‘during’, meaning ‘throughout the continuance of’ and ‘within’, meaning ‘in the course of’”.

5. The Tribunal then went on to note (at [14]):

   “What is a ‘reasonable period’ in this context is not defined in the Regulations. Paragraph 18.4 of the relevant Departmental policy in force at the time of the applicant’s original application, to be found in PAM3: Div1.2/reg1.15, stated that:

   ‘The bar on contact ‘within a reasonable period’ means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years preceding the application).’”

   [PAM 3 is the third version of the Minister’s Department’s “Procedures Advice Manual”]

6. The word “policy” is defined in the Macquarie Dictionary (Revised Third Edition) as:

   “Policy: 1. a definite course of action adopted as expedient or from other considerations: a business policy. 2. a course or line of action adopted and pursued by a government, ruler, political party, or the like: the foreign policy of a country. 3. action or procedure conforming to, or considered with reference to, prudence or expediency: it was good policy to consent. 4. prudence, practical wisdom, or expediency. 5. sagacity; shrewdness. 6… government; polity…”

7. I understand, therefore, that where the Tribunal refers to “Departmental Policy” it refers to what is set out in the PAM3 at the relevant time. Mr Lloyd put before the Court two versions of the relevant (to this regulation) extract of the PAM3.

8. The first can be described as the “1998” version and relates to the time when the word “during” was the operative word in the relevant regulation.

9. The second version can be described as the “2000” version, and was current at the time when the word “within” was the key operative word.

10. I understand that there was no dispute that the relevant version of PAM3 directed to the previous regulatory expression of “during” rather than the later “within”, is:

    “• the bar on contact ‘during a reasonable period’ means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years).”

11. Mr Lloyd’s submission was that the Tribunal had regard to the “Departmental policy” as set out in PAM3 (the version current as at the time of the Tribunal’s decision), at least to the extent that it took from that policy that “three years” was, under policy, said to be the “reasonable period”.

12. In that regard the Tribunal said (at [15]):

    “While the Tribunal is not bound by Departmental policy, consistent with principles of administrative law the Tribunal would generally have regard to policy as a relevant consideration and may apply it unless there are cogent reasons not to”.

13. Relevantly, the Tribunal emphasised at the hearing with the review applicant and her adviser that: “… what was a reasonable period would depend on the circumstances of the case…” (at [62]).

14. I understand the thrust of Mr Lloyd’s relevant submission to be that, in its analysis, the Tribunal ultimately concluded that it should apply the three years derived from the Departmental policy as to what is a reasonable period ([82]).

15. In arriving at this conclusion the Tribunal considered the regulatory change from “during a reasonable period” to “within a reasonable period” ([69]).

16. It accepted that the policy expressed in the PAM3 (the version current as at the time of its decision) (at [70]):

    “… suggests that contact ‘within a reasonable period’ means throughout the period rather than single instances of contact but this is a question of statutory interpretation and this statement is therefore properly characterised as an opinion rather than as a policy which should guide the Tribunal in its exercise of a discretion. I conclude that the words ‘within a reasonable period before making the application’ in r.1.15(1(c)(ii) should be interpreted as meaning ‘in the course of’ rather than ‘throughout the continuance of’ the relevant period.

17. With reference therefore to the two relevant versions of the PAM3 before the Court, what is revealed is that the Tribunal properly understood that there had been a change in the regulation from “during” to “within”. That this understanding led it to reject the view (as expressed in the review applicant’s adviser’s submission) that this required contact (between the visa applicant and the overseas near relatives) to have been maintained throughout the entirety of the reasonable period, and to have concluded, properly, that the relevant meaning was “in the course of”.

18. The submission, therefore, was that although the Tribunal appreciated this change in the regulation, a comparison of the two policy statements (between the “1998” and “2000” versions) reveals that the only relevant change was to delete the word “during” and replace it with “within”.

19. The Tribunal was therefore “correct” in that part of its analysis to reject that part of the policy statement in that the Tribunal understood that there had been a change in the relevant substantive meaning in the regulation.

20. In these circumstances, as exemplified by the Tribunal’s own analysis and findings, the submission was that the policy no longer reflected the meaning of the “new” regulation.

21. The Tribunal was in error, therefore, in accepting that the three year period was still a “lawful” expression of the changed regulation. Mr Lloyd submitted that the three year period was presumably crafted with the previous regulation in mind. Yet the Tribunal saw it, and applied it, as still being relevant policy to the “new” regulation. Having accepted that the policy expression was not lawful in part, given that the language in substance still referred to the previous regulation, then it was an error on the part of the Tribunal to continue to treat the “three years” as relevant, and lawful to the “new” regulation.

22. In essence, the policy, as it continued to be expressed, was contrary to, and ignored the regulatory change. If this is so in part, as accepted by the Tribunal, it should be so as to the whole. That is, to include the “three year” period.

23. In these circumstances, Mr Lloyd took issue with the Tribunal’s approach which was to say that there was no cogent reason to depart from the policy expression of what was a reasonable period, namely “three years”.

24. Mr Potts submitted that the Tribunal correctly observed and understood that there had been a change in the regulation. It plainly disregarded what was expressed in the “policy” as it related to the previous regulatory situation. That is, it was aware that the “policy” was premised on a mistake as to the meaning of “within a reasonable period” (see [13] – [14] at CB 403 to CB 404).

25. Being conscious of this, and disregarding that part of the “policy”, the Tribunal nevertheless proceeded on the basis that three years was still a relevant yardstick as to what is a reasonable period, and that it was reasonable in the circumstances.

26. Mr Potts reminded the Court that the review applicant’s ground as pleaded was that the “policy” is repugnant to the regulation (in the relevant form before the Tribunal). This requires that there be a direct inconsistency with the regulatory intention. That is, the whole of it would have to be seen as inconsistent with reg.1.15(1)(c)(ii).

27. The question to be determined therefore is whether the “policy” is indivisible from the three year period. That is, whether the three years dependent upon the notion of contact throughout the period (with reference to the replaced “during”), or whether it sets the executive government’s view of the “guideline” period regardless of whether or not it is “within” that period, in the sense of a single instance (of contact), or whether in the sense of continuously throughout the period.

28. Mr Potts identified the issue between the parties as being that the review applicant contends for the former, and the respondent the latter.

29. Mr Potts also submitted that the Tribunal arrived at its conclusion as to what is a reasonable period having regard to the public policy (see

    
    

    [81] – [82] at CB 418 to CB 419). It determined that there was no good reason to depart from the policy as it related to the three year period, noting, of course, that it well understood that the earlier part of the “policy” expression was not reflective of the “new” regulation.

30. The submission was that in applying the three year meaning the Tribunal could not be said to have taken into account an irrelevant consideration. The Tribunal was clearly seeking to inform itself as to what a reasonable and non-arbitrary yardstick or measure would be.

31. The submission explained that the Tribunal’s reference to the policy should not be taken as amounting to jurisdictional error. The Tribunal was at pains to avoid inconsistency in decision making, and the appearance of arbitrariness in fixing what is a reasonable period.

32. I understood this latter to be with reference in particular to what the Tribunal set out at [81]:

    “As I indicated in the course of the hearing before me, I do not consider that a week or a month would be a ‘reasonable period’ for the purposes of r.1.15(1)(c)(ii) in the circumstances of the present case: I consider that the closeness of the relationship between the visa applicant and her two younger daughters means that a longer period of lack of contact should be considered a ‘reasonable period’ in the legislative context. I declined the invitation of the applicant’s representative to indicate at the hearing a decided view [as] to what a reasonable period was in the circumstances of the case because I considered that in doing so I would in effect have predetermined the outcome of the review. However I did say that, even if I were to look at the period of one year before the date of the visa applicant’s application, that is, the period since 15 August 2004, I would be obliged to find that the visa applicant had had ‘contact’ with Alice and Eda within that period. Indeed, as I noted, the evidence before me was that their relationship had been ‘typically close’ until the visa applicant had returned to China on 30 September 2004.”

The Involuntary Separation Issue

1. While Mr Lloyd summarised his submissions as relevant to three issues (see [24] above), I understood the issue above to be the main thrust of the attack on the Tribunal’s decision, and that the two other issues to be intertwined with that attack.

2. In any event, what Mr Lloyd described as the “voluntariness” error can be understood as an argument that the Tribunal should have given consideration to the notion of fairness in looking at what was a reasonable period.

3. In particular this appears to have arisen in submissions made prior to the hearing, and at the hearing before the Tribunal (see [47] and [58]). In short, the argument is that the visa applicant’s loss of contact with her two younger daughters (the overseas near relatives) was involuntary because of the action of their father. But for this action the children would not be “overseas near relatives” as they would have gone back to China with their mother.

4. Mr Lloyd referred to the Tribunal’s response to this argument in its decision record as encapsulated at [72]. Relevantly the Tribunal said:

   “… the review applicant’s husband said that he did not think that it was fair that the visa applicant’s two younger daughters were regarded as ‘overseas near relatives’ but as I noted the law sets out certain criteria which need to be satisfied and the application of the law will on occasion lead to outcomes which may be considered unfair by those affected.”

5. The submission was that this was not an answer to the point put to it. The submission was that the Tribunal should not have just rejected this argument, but to have given it some consideration. It was wrong of the Tribunal not to have seen that this was a relevant factor that could bear upon what was a reasonable period.

6. The review applicant’s position is that the involuntary nature of the separation, the lack of contact, can inform the circumstances as to what is a reasonable period. That there is nothing in the regulations, or the legislation, to require a view that the involuntary nature of the separation between mother and daughters is irrelevant to the consideration of what is a reasonable period.

7. In essence, I understood the complaint to be that where there exists, in the circumstances of the case, a factor which goes to the matter of whether contact is difficult or impossible, it should be considered, on the basis, at least, that it is relevant to the consideration.

8. In reply, Mr Potts’ submission was that there was no error in suggesting that whether or not the breach in the relationship was voluntary or otherwise, was irrelevant.

9. Mr Potts referred the Court to the Tribunal’s relevant thinking as expressed in its account of what occurred at the hearing. At [59] the Tribunal said:

   “I explained that I had to make a decision in accordance with the relevant law on the basis of the facts as I found them. I indicated that while we might all agree that it would have been better if the visa applicant’s former husband had not taken the two children, the fact was that he had and I had to make my decision on that basis. The review applicant’s husband said that this was not fair to the visa applicant. I noted that the law could often lead to outcomes which might not be considered to be fair. I emphasised again that the law set out certain criteria which had to be satisfied in order for the visa applicant to be granted a visa and that in looking at whether those criteria were satisfied I had to look at the facts as they were, not as we might like them to be.”

10. In short, the respondent’s submission, in answer to the applicant’s complaint in relation to this issue, is that it is not part of the Tribunal’s task to postulate on hypothetical scenarios in the application of this particular regulatory test. The Tribunal dealt with the facts as found to arise from the actual circumstances before it.

11. At [60] the Tribunal noted the concessions made by the review applicant’s representative that the two children were “overseas near relatives” and that their mother had been in contact with them up to the first week in October 2004.

12. In this light the Tribunal understood the adviser’s submission to be that the Tribunal was required to determine what was a “reasonable period”. That in this regard: “… it was always helpful to look at the context of the original legislation and that it was sometimes helpful to look at the policy guidelines” ([60]).

13. Mr Potts referred the Court to [66] to [68] of the Tribunal’s decision record as key to the Tribunal’s reasoning and its identification of the issue to be resolved. That is, whether the visa applicant had contact with her two daughters within a reasonable period before making the application.

14. Having determined that the visa applicant had not had contact with her daughters for ten months, the Tribunal turned to what is a reasonable period.

15. In this regard it understood the difference between “during” and “within” (with reference to Bagus). Mr Potts submitted that it was plainly cognisant that the policy suggested something different to the proper construction of the relevant regulation.

16. The review applicant’s representative had made submissions to the Tribunal that the regulation should be interpreted as meaning something different to the difference as identified in Bagus (between “during” and “within”).

17. The Tribunal, however, said (at [70]):

    “… I do not consider that this is consistent with the wording of the relevant legislative provision. I accept that the relevant departmental policy, quoted above, suggests that contact ‘within a reasonable period’ means contact throughout the period rather than single instances of contact but this is a question of statutory interpretation and this statement is therefore properly characterised as an opinion rather than as a policy which should guide the Tribunal in its exercise of a discretion. I conclude that the words ‘within a reasonable period before making the application’ in r.1.15(1)(c)(ii) should be interpreted as meaning ‘in the course of’ rather than ‘throughout the continuance of’ the relevant period”.

18. The Tribunal then proceeded to determine what is a reasonable period. It reasoned that the very closeness of the relationship (between mother and daughters) argued for a longer, rather than shorter period (at [73]):

    “… As I indicated in the course of the hearing before me I consider that the very closeness of the relationship argues that the ‘reasonable period’ in these circumstances should be interpreted as a longer period rather than a shorter period. As I noted, the test in the legislation is not looking at the desirability that the visa applicant should be reunited with her daughters: under the legislation they are regarded as ‘overseas near relatives’. As I likewise noted, the applicant’s representatives have submitted that, were it not for the intervention of the visa applicant’s former husband, the visa applicant would obviously have had a close relationship with her two daughters throughout the relevant period.”

19. Mr Potts submitted that the latter part of this extract identifies the “involuntariness” submission made by the applicant now. The Tribunal’s answer to it is said to be at [74]:

    “… I do not consider it irrational in the context of the relevant provisions to have regard to the closeness of the relationship between the visa applicant and the overseas near relatives in determining what is a reasonable period in the context of the particular case.”

20. That is it is not whether the cessation of contact was voluntary or involuntary that is relevant, but the closeness of the relationship that is the key.

21. This also leads to the third issue identified by Mr Lloyd.

The Irreparably Severed Issue

1. Mr Lloyd submitted that the relevant test is not one of whether the relationship between the visa applicant and the overseas near relative has been irreparably severed, but whether there may be an opportunity for a family reunion elsewhere.

2. The submission derives from acknowledging the government policy that influenced the relevant regulatory scheme. This refers to the applicant’s contention that the concept of a “reasonable period” concerns a measure according to which Australia is obliged to accept, or not accept, an applicant for this type of visa. The context being whether the person has had contact with one or more “overseas near relatives” within a “reasonable period”, then family reunion with relatives who are resident in Australia will not be permitted.

1. Mr Lloyd referred to Prasad per Logan J at [21] for general support for this proposition.

2. In essence the applicant’s attack is directed to the Tribunal’s reasoning that (at [76]):

   “… if a relationship which would ordinarily be very close is interrupted – let us say, for example, by a family quarrel – the very closeness of the relationship suggests to me logically that one should wait for some time before concluding that the relationship has been irreparably severed”.

3. The submission was that asking for a relationship to be “irreparably severed” is not part of the regulatory requirement. This was described as a “gloss” on the relevant legislation. Mr Lloyd’s position was that regard should be had to the existence of a social relationship with the overseas near relative. Contact was described as being a “proxy” for the existence of such a relationship.

4. I understood this to be put on the basis that relevant government policy requires consideration of whether another country has what was described as an “equality of call”. That is, an equal moral responsibility to effect the family reunion.

5. Ultimately I understood the thrust of the objection to the Tribunal’s reasoning and approach to be that what is a “reasonable period” is not about establishing whether the relationship has been “irreparably severed” but rather, to have regard to all the circumstances of the lack of contact (including whether it was involuntary) to determine whether it is appropriate to call on Australia to facilitate a family reunion.

6. Mr Lloyd’s submission was that, in looking at the “current” state of the relationship, the Tribunal should not be looking to see if, or when, it came to an end. But simply to look at the relationship, and its nature, in the context of determining what is a reasonable period.

7. That looking to see whether a relationship has been irreparably severed, or even that such an irreparable severing may take a long time, is not to look at the state of the relationship. This is said to contribute to the Tribunal’s error.

8. In response, Mr Potts pressed that the closeness of the relationship between the visa applicant and the overseas near relative, in this case the relationship between a mother and her daughters, is a relevant circumstance that informs what is a reasonable period.

9. His submission was that the notion of irreparable severance, in context, waiting for a longer rather than a shorter period before finding that the relationship has irretrievably been severed, is not inconsistent with the regulation.

10. In these circumstances no error is revealed, let alone jurisdictional error.

Consideration

The Policy Repugnant to the Legislation Issue

1. The resolution of this case requires some understanding of exactly what the Tribunal has done, its reasoning, and the nature of the “policy” that it ultimately applied, or said that it had regard to.

2. I refer to the dictionary definition of “policy” set out at [31] above.

3. In submissions Mr Lloyd made reference to the policy (government) intention generally, and the history relating to the government’s (successive governments) family reunion policies.

4. For the purposes of the resolution of this case, this, however, is to be distinguished from the “policy” to which the Tribunal relevantly had regard. The “policy” which played such an important role in the Tribunal’s decision is what the Tribunal itself described as the relevant: “Departmental policy in force at that time suggested that a ‘reasonable period’ should be taken to be three years” (see [81], and also [54], [71] of the Tribunal’s decision record).

5. A distinction may be drawn between a policy made at the level of government, that is at the political level, and a policy made at the departmental level (see Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 163, and Hneidi v Minister for Immigration & Citizenship [2009] FCA 983 (“Hneidi”) at [41] per Besanko J. His Honour also said:

   “Different considerations may apply to the review of each kind of policy…”

6. In the current case it is the latter (departmental policy) which really is of focus. This is entirely the “policy” applied relevantly by the Tribunal.

7. The Tribunal’s reference to “Departmental policy” raises the interesting question as to the real nature of what was said to be the source of this “policy”, the PAM3.

8. The “PAM3” is an acronym for the third edition of the Department’s “Procedures Advice Manual”. That part put before the Court, with the “1998” version relating to the form of the relevant regulation that spoke of contact throughout the reasonable period – “during”, and the “2000” version, and contact in the course of a reasonable period – “within”, is headed: “Regulation 1.15 – Interpretation – Remaining Relative”.

9. The “2000” version, which is the relevant version applicable to the current circumstances, does not contain the explanation set out in the “1998” version as to what the PAM is intended to achieve:

   “1.1 PAM3: Div1.2/reg1.15 provides guidelines on the prescribed interpretation (definition) of ‘remaining relative’”.

10. This continues:

    “1.2: The Commentary guidelines annotate those parts of the regulation needing comment, background or policy interpretation. (Those parts which are considered self-explanatory are not addressed.) The guidelines identify the exact part of the provision being addressed by showing it ‘like this’ under the same heading and numbers used in the regulation.

    1.3: Officers should not forget that some wording must be interpreted in a specific way as laid down in either the Act or the Regulations. They need to know or check which particular words or phrases are subject to such a legal definition because the guidelines do not usually draw the fact to attention:

    • A list of defined terms in S5 of the Act and regulation 1.03 appears at the front of the Regulations.

    • The meaning of any acronyms or abbreviations used in this document can be found in PAM3: Guide/Acronyms.”

11. It is not clear whether this continued to be the interpretation in the “2000” version, but even taking it at its highest the “2000” version is at least, as its name suggests, intended to provide advice about procedures.

12. The advice appears to be directed to “officers” (in context presumably officers of the Minister’s Department). It is not directed to Tribunal members (see s.396 of the Act).

13. But, ultimately, nothing turns on this point because the Tribunal is entitled to have regard to “policy”, both government (at the political level) and administrative (departmental).

14. Further, there is no dispute that, while a policy (as distinct from a policy expressed in, or as, a regulation) is not binding on a decision maker, a policy applicable to the case is a relevant consideration (Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65; 92 ALR 167; 16 ALD 611 at [81] per Wilcox J, Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 (“Drake”) at 643 per Brennan J). In Hneidi at [37] the Court said: “… In the ordinary case, a policy is a relevant factor for the Tribunal to take into account.”

15. If the PAM3 therefore, at “1.15”, is the expression of departmental policy, then the Tribunal could be entitled to take it into account.

16. The specific aspect of “policy” applied by the Tribunal, or to which the Tribunal can be said to have had regard, is that a “reasonable period” is taken to be three years under policy (see the Tribunal’s decision record at [81] – [82]).

17. The relevant part that the Tribunal referred to is expressed as:

    “The bar on contact ‘within a reasonable period’ means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years preceding the application).”

    [See at [14] of the Tribunal’s decision record.]

18. In the “2000” version of PAM3 before the Court this appears under the heading of “The meaning of ‘contact’”. The full extract from PAM3 is as follows:

    “5.3.1 Regulation 1.15(1)(c) requirements cannot be met if the applicant (or their spouse, if applicable has had contact with their overseas near relative.

    5.3.2 …

    5.3.3 In assessing whether the applicant has (or has not had) contact with an overseas near relative, officers must have regard to the following (arising from various court rulings):

    • ‘contact’ does not mean ‘physical contact’ (such as a meeting) but rather communication in the sense of a social relationship;

    • non-social, unavoidable contact, for example

    • for legal reasons such as the settling of a will, disposing of property or signing documents; or

    • making contact with a relative at DIMA’s request;

    should not be regarded as ‘contact’ for the purposes of this regulation;

    • the bar on contact ‘within a reasonable period’ means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years).

19. I note that, contrary to the stated intention to provide advice (Procedures Advice Manual), the language employed is not advisory, or, it must be said, even explanatory. It is directive: “… officers must have regard to…”.

20. This is understandable given that what the subsequent directions are said to arise from are Court rulings. Any plain reading, therefore, is that “officers” (this should be seen as not barring the Tribunal from applying what is set out) must act consistently with the law. An appropriate direction.

21. To the extent therefore that the PAM3 provides direction on what “contact” does not mean, or what should not be regarded as contact, then no error generally arises from the Tribunal applying this “policy”.

22. Except, in my view, in two ways.

23. The expression of the “three years” as being a reasonable period is said to be so “under policy”. The context within which this appears, however, is that the directive language as a whole leaves open the distinct possibility that this is not an expression of policy, other than a “policy” that the law (as expressed in various current rulings) must be followed. It is a direction. The words, therefore, that appear in parentheses have the appearance, in context, of being directive, rather than advisory, or a statement of intention.

24. In my view, this illustrates the difficulty, and the danger, inherent in producing a manual which purports to give advice about, or on, procedures. Advice which is then (understandably, in one sense) expressed as a direction. Advice which is then taken to be an expression of Departmental policy as distinct from a directive to “officers” as to how to go about applying regulations and making decision on individual cases.

25. The presentation of the “three years” in this context is therefore both confused and confusing when read in the context in which it appears. Is it a direction as to what the law requires or is it an expression of intent? In my view there is a fine, but important, distinction between each of advice about how to approach a particular decision, mandatory direction, and an expression of Departmental policy.

26. But of even greater importance to the resolution of the case before the Court is the juxtaposition of what appears in the parentheses to what precedes it at the last dot point as quoted above ([108] above).

27. The word “within” as it precedes “a reasonable period” as appearing in the “2000” version of the PAM3 are the only difference in the comparable “1998” version of the PAM3, where the word used is “during”.

28. The rest of the dot points in both versions are identical.

29. This sits at the heart of the applicant’s main complaint about the Tribunal’s decision. That is, that the “policy” (as expressed at that part of the “2000” version of the PAM3) is repugnant to the regulation in force at that time.

30. I agree.

31. It is quite clear that whoever drafted the relevant third dot point in the “2000” version of the PAM3 did not understand the change in the relevant part of the regulation wrought by the word “within” as it replaced “during”.

32. While acknowledging that the key word in the regulation had been changed from “during” to “within”, the meaning ascribed to the regulation was still that derived from the use of the word “during”. That is, the explanation or advice provided in the PAM3 ignored the fact that the use of the word “within” in the regulation, had changed the meaning of the regulation.

33. It was in this context that the drafter of the PAM3 maintained the reference, again in parentheses, to a reasonable period, under policy, being taken to be three years.

34. Any plain reading of the Tribunal’s decision record revealed that it (in contrast to the drafter of the PAM3) clearly understood the difference in the meaning of the regulation brought about by the Regulatory changes (Migration Amendment Regulations 1999 (No 13), Statutory Rules 1999 No 259 which came into effect on 1 November 1999). (See [13] of the Tribunal’s decision record.)

35. The Tribunal:

    1)Had regard to the appropriate form of the relevant regulation applicable to the application before it (see [8]).

    2)Understood the differences in meaning, and the respective application to the regulation of “during” and “within” ([12]).

    3)Found that the definition of “remaining relative” to be applied to the current case referred to “contact” between the “visa applicant” and the “overseas near relative” as being “within a reasonable period” ([13]).

    4)Found that, while the relevant Explanatory Memorandum to the relevant regulation change made no express reference, the distinction, as found by Whitlam J in Bagus, was that “during” meant “throughout the continuance of”, and that “within” meant “in the course of” ([13]).

    5)Found that “reasonable period” was not defined in the Regulations ([14]).

    6)But noted that “Departmental policy” found in the PAM3 was, as set out above, in the “2000” version of the PAM3 ([14]).

    7)Found that while the Tribunal was not bound by Departmental policy, the Tribunal: “… would generally have regard to policy as a relevant consideration and may apply it unless there are cogent reasons not to” ([15]).

36. In applying the above to the case before it, the Tribunal:

    1)Reasoned that: “… the issue in the review is therefore whether the visa applicant had had ‘contact’ with her two younger daughters ‘within a reasonable period before making the application’…” ([68]).

    2)Accepted evidence before it and found that the visa applicant had a “typically close” relationship with her daughters as at her return to China on 30 September 2004, but that she had not been in “contact” with them since about a week after that date. That is, there was a period of ten months prior to the making of the application when she was not in contact with them ([68]).

    3)Noted the contrast in meaning, for the purposes of the regulation, of the earlier “during” and the current (before it) “within” ([69] – [70]).

    4)Found that the relevant Departmental policy, and in particular its expression of the meaning of “within”, should be: “… properly characterised as an opinion rather than as a policy which should guide the Tribunal in its exercise of a discretion” ([70]).

    5)On this basis, concluded, correctly, that the words “within a reasonable period before the making of the application” mean “in the course of” and not, as set out in the PAM3 which it said was an “opinion” as “‘throughout the continuance’ of the relevant period” ([70]).

    6)Then noted the “Departmental policy” in the PAM3 as setting out the relevant period, under policy, as being three years. That: “… the Tribunal should not apply such statements of policy inflexibly without having regard to the circumstances of the particular case” ([71]).

37. The Tribunal then looked at what it said were the circumstances of the case, including aspects of submissions made on the review applicant’s (and, by implication, the visa applicant’s) behalf ([72] – [80]).

38. The Tribunal found that the circumstances (the closeness of the relationship) called for a longer, rather than a shorter period as to what was a reasonable period ([80]).

39. Having repeatedly reminded itself that “policy” should not be applied inflexibly, and having regard to what was said in Drake (per Brennan J) that:

    “… it is appropriate to have regard to such statements of policy for the assistance they provide in arriving at the preferable decision in the circumstances of the case. Moreover there are strong considerations suggesting that such statements of policy should be applied consistently because to do otherwise ‘brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice’” (at [81])

    the Tribunal proceeded to apply the three year period as the relevant period. This was done on the basis that: “… I do not consider that there are cogent arguments to depart from the relevant Departmental policy in the circumstances of the present case. I conclude that a period of three years is a ‘reasonable period’ for the purposes of cl.1.15(1)(c)(ii) in the circumstances of the present case” ([81] – [82]).

40. The Tribunal well understood that what was expressed at the relevant part of the PAM3 in relation to the effect of the use of the word “within” in the regulation was not in accordance with what had been said in Bagus.

41. However, the Tribunal’s reasoning at [70] is illuminating as to the error into which it fell.

42. The Tribunal referred to the “relevant Departmental policy”, in context to all of the relevant dot points as set out at the PAM3, and, having found that what was expressed as the meaning relevant to “within” as being a question of statutory interpretation, then dismissed this part of the hitherto described “Departmental policy” as being an “opinion”, and therefore not a “policy which should guide the Tribunal in its exercise of a discretion” ([70]). Yet it retained what followed in parentheses (the three years) as being a true expression of the Departmental policy.

43. It must be said, with respect, that there is a clear aura of convenience in dismissing what is quite clearly an inconsistency between what is relevantly said in the PAM3, about the regulation in force at the time, on the basis that this is an “opinion”, but retaining what follows in parentheses (the three years) as “Departmental policy”.

44. This is particularly so as the Tribunal begins that part of its reasoning (at [14], then at [70] and then at [71]) by describing the entire “quote” from the PAM3 as: “… the relevant Departmental policy”. The answer, therefore, to the question of when a policy is not a policy, is said to be when it is inconsistent with the law to which it is said to relate, in which case it is merely, and it must be said conveniently, an “opinion”.

45. Two questions immediately follow from the Tribunal’s reasoning. The first is: is what appears in parentheses divisible from what precedes it? The second is: what is the effect of the inconsistency between what appears in the PAM3, and the relevant regulation?

46. In my view what appears in parentheses (the three years) is not divisible from what precedes it, whether that be described as a policy or an opinion. The answer to the second question therefore is that the effect of the inconsistency is to make the expression of the Departmental policy repugnant to the legislation. If the reference to “three years” is not divisible from what precedes it, then it too is repugnant to the regulation.

47. The plain words used are: “… (specific to this provision…)”, with reference to what immediately precedes it, and, in context, it can only relate to what immediately precedes it. The plain meaning is that, specific to the provision (that is, that part of the regulation setting the bar on contact “within a reasonable period”, as meaning contact throughout the period), a reasonable period is three years, under policy.

48. On any plain reading I cannot see how it is possible to reject one part on the basis of it being an “opinion”, and to accept the other as being the relevant expression of Departmental policy relating to the otherwise rejected “opinion”. On any plain reading of what appears at this part of the PAM3, and indeed the context in which it appears, it was not open to the Tribunal to make this distinction.

1. Once having established that the first part of the dot point was inconsistent with a proper understanding of the relevant regulation, an understanding derived from the relevant reasoning of a Federal Court judge, it was not open to the Tribunal to separate out that latter part in parentheses as of itself being a separate and untainted expression of Departmental policy.

2. If for no other reason, the words “specific to this provision,” when read in context with what precedes it (and the use of parentheses emphasises that this is the way that it should be read), then having rejected the first part as being inconsistent with what was the accepted meaning of the regulation, the Tribunal should not have relied on the three year period as being a proper expression of relevant Departmental policy.

3. If the drafter of the PAM3 had wanted to separate out the two parts as being distinct and divisible then there are clear ways of expressing this, if this had been the intention.

4. Whoever drafted this part of the PAM3 had clearly either not understood, or was simply mistaken, as to the change wrought in the meaning of the regulation by replacing “within” for “during”.

5. Despite the use of the word “within” in the version of the PAM3 to which the Tribunal had regard, the three year “policy” was said to relate to contact throughout the reasonable period. The regulation in force at the relevant time however provided for contact to be in the course of the three years. There is a qualitative and quantitative difference between these two concepts. While three years may be said to be a reasonable period in relation to one, given what needs to be measured, it does not automatically follow that it would be regarded as a reasonable period for the other, given this qualitative and quantitative difference in meaning and expected application.

6. Whatever the case, in context, the reference to the policy of three years as being the reasonable period was left as relating to a meaning and interpretation of the relevant regulation which was not valid.

7. It was not open to the Tribunal to make this division. The effect therefore was to apply a “policy” which was inconsistent with, or repugnant to, the accepted meaning of that part of the regulation.

8. If the Tribunal had arrived separately (without reference to the Departmental policy) at the conclusion that three years was a reasonable period, and that such a conclusion was derived from the circumstances of the case (reasoning that there was not other relevant Departmental policy expression to which it could have had regard), then, as Mr Lloyd conceded in submissions, his task would have been that much harder (if not impossible).

9. But the Tribunal did not do so.

10. In its analysis the Tribunal made reference to what was said in Drake (per Brennan J) at [81]. That is, the benefits to be derived from the consistent application of policy, to avoid an arbitrariness which would be: “… incompatible with commonly accepted notions of justice” (Drake at 639).

11. There is no error of itself, in the Tribunal having such regard if the expression of the policy had not been repugnant to the regulation.

12. In the circumstances of the present case it may have been of assistance to the Tribunal to have also heeded the words of Davies J in Gerah Imports Pty Limited v Minister of Industry, Technology and Commerce [1987] FCA 456; (1987)17 FCR 1; 14 ALD 351 at [21]:

    “In Australia, in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, Brennan J.'s outstanding analysis of political and executive power and of the need for consistency in decision making emphasised the binding nature of rules laid down by a Minister of the Crown. Nevertheless, decisions of this Court and of the Administrative Appeals Tribunal, both before and after Re Drake (No. 2), have shown a reluctance to regard non-statutory rules as binding. Perhaps that is because, firstly, in Australia as elsewhere, non-statutory rules have often not been prepared with the care which the parliamentary counsel give to legislation and, secondly an end sought to be achieved by non-statutory rules has been to permit flexibility should the rules be found not to be appropriate to the facts which have occurred.”

    [Emphasis added.]

13. In any event, what is also clear is that the policy in operation must be consistent with the relevant law, in this case the regulation, or not inconsistent with it.

14. What can also be relevantly drawn from Drake is (at 641):

    “There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.”

    And more pointedly at 643:

    “Of course, the Tribunal would be in error to apply an unlawful Ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision.”

15. See also Green v Daniels [1977] HCA 18; (1977) 13 ALR 1; (1977) 51 ALJR 463, Perder Investments Pty Ltd v Elmer(1991) 31 FCR 480, where a directive policy was held to be an irrelevant consideration; Hneidi per Besanko J at [39]: “… The policy must be consistent with the statute…” (and see also [55], [57]).

16. In all, therefore, the applicant’s central complaint is made out. That in considering whether or not the visa applicant had had contact with her two overseas near relative children within a reasonable period, the Tribunal purported to apply a policy, as expressed, that was repugnant to the legislation. Further, that in doing so the Tribunal took into account an irrelevant consideration. That is, that the three year period was relevant to the meaning of a reasonable period as expressed in the regulation.

17. In light of this it is therefore not strictly necessary to set out consideration in relation to what can be said to be the two ancillary issues described as the “involuntary separation” and “irreparably severed”.

18. Notwithstanding this, for the sake of completeness I set out consideration on these matters.

Involuntary Separation

1. I cannot let it pass without remarking that the review applicant’s (and in context the visa applicant’s) submissions before the Tribunal, and also the Tribunal’s analysis, particularly in relation as to whether the contact between the review applicant and her two children was involuntarily broken, and its relevance, was conducted against a background of what can colloquially be described as the: “elephant in the room”.

2. The delegate’s decision, which after all it must not be forgotten was the subject of the review before the Tribunal, reveals that the delegate’s decision turned, by and large, on the finding that the review applicant and her “ex-husband” continued (as at 24 November 2006 – the children had been taken by their father on 2 or 3 November 2004) to “share the upbringing of their children”. The delegate found that the review applicant was “… co-operating with” her ex-husband in “harbouring the children in Australia”. The delegate found that their divorce was “contrived” to enable the review applicant to meet the definition of “remaining relative” (see CB 108).

3. This matter appeared to feature prominently in the thinking of the Tribunal as earlier constituted. The matter of the two young children being taken by their father, and that nothing had been heard from, or about them from November 2004 to October 2007 (the date of the decision by that Tribunal Member), and that no serious attempts had been made to locate the children, figured prominently in the Tribunal’s decision to affirm the delegate’s decision (see in particular CB 302 to CB 303).

4. On review before the Court (Scarlett FM) the Tribunal’s decision was found to be affected by an apprehension of bias (He v Minister for Immigration & Anor [2008] FMCA 1437 – CB 310 to CB 351).

5. In part this involved what was found to be the Tribunal’s misrepresentation of the applicant’s claims (at [138] – CB 345), and the Tribunal’s conduct at the hearing ([149] at CB 348 to [163] at CB 351).

6. Underlying this was what was said to be the Tribunal’s conclusion that it did not believe that the two children had been taken by their father without the visa applicant’s knowledge or consent, or that she had not heard from them since. That the visa applicant and her husband were: “… conspiring to keep the children in Australia unlawfully so that they could obtain Australian citizenship after ten years” (at [114] – CB 341).

7. The above was part of the background at the time of the remittal to the Tribunal. It explains, in part, the emphasis in the review applicant’s representative’s submissions of 13 February 2009 to the Tribunal as to the circumstances of the children being taken by their father (CB 385), and the involuntary nature of the cessation of contact between the visa applicant and her daughters (and the relevance of the circumstances to what is a reasonable period for the purposes of the regulation) (CB 387).

8. At the hearing before the Tribunal it noted the representative’s submission that the visa applicant would have continued to have a close relationship with her daughters but for her former husband’s intervention ([56]). This was relevant to the consideration as to how long would be considered to be a reasonable period, and the effect of the closeness of the relationship on this consideration, and ultimately whether she had had “contact” with them “within” this period.

9. It was at this point that the review applicant’s husband (the visa applicant’s father, and the grandfather of the two daughters) squarely introduced the argument that it was not fair that the two children should be regarded as “overseas near relatives”. The Tribunal was urged to have compassion particularly in circumstances where: “… otherwise it would defeat the purpose of the visa applicant having left the country voluntarily” ([58]).

10. A number of matters arise. First, this echoes submissions before the Court made by Mr Lloyd referring to the long term government, or ministerial, policy of the compassionate, and even humanitarian, elements of the policy of effecting family reunions.

11. Second, the review applicant’s husband’s argument appears to overlook the fact that, given that the visa applicant had no lawful right to remain in Australia, her departure, even on a voluntary basis, would not be such, on its own, as to persuade the Tribunal to act “compassionately”. In my view the Tribunal was correct in its approach in stating that, while the outcome may be seen by some to be unfair, it was required to look at the facts as they were, not as all the applicants and their family might like them to be ([58] – [59]).

12. Third, it brings into play the interesting question as to the visa applicant’s, and her father’s, reaction in talking about the fact that no action was taken to locate the children after the father took them, and did not return them. Before the earlier constituted Tribunal, as reported by the Tribunal whose decision is currently under review, there had been no report to the police. Nor was the visa applicant’s father prepared to make any report after two and a half years. The extent of his action was that, when he went shopping, he would make “observations” to see if he could find them ([37] – [38]).

13. Fourth, notwithstanding that the visa applicant, the review applicant, and her husband, were adamant that they had no knowledge of the whereabouts of the two children, the concession was readily made by the representative that the children were “overseas near relatives” ([60]), and at least implicitly proceeded on the basis that they were still in Australia.

14. The visa applicant’s father told the Tribunal that if the two girls had returned to China, but for the action of their father, they would not be “overseas near relatives”. That on this basis the Tribunal’s thinking (at the hearing) was not fair ([58] – [59]).

15. This notion of fairness also figured in the review applicant’s submissions before the Court. The contention was that the loss of contact was involuntary, that but for their father the children would not be “overseas near relatives”, and that the Tribunal therefore should have at least considered whether this was fair, rather than just rejecting the need for such consideration.

16. The complaint was that the involuntary nature of the loss of contact could inform the circumstances to which the Tribunal should have had regard. I understood the error alleged to be that the Tribunal failed to see that this was a relevant consideration, or rather that the Tribunal erred in finding that the involuntary separation was irrelevant to its consideration.

17. First, I should note that there is no error in the Tribunal’s approach that its focus should be on the statutory and regulatory criteria, and that on occasion this may lead to an outcome which may be considered unfair by those who are adversely affected (see [72] of the Tribunal’s decision record).

18. Notions of fairness in matters of this type clearly exist in the procedures adopted, and implemented, by the Tribunal. But do not extend necessarily to outcomes (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, Attorney-General (NSW) v Quin (1990) 170 CLR 1).

19. Second, to the extent that this submission seeks to imply some notion of fairness to be imported from the long standing government policy of family reunion, and what was said to be the compassionate outcome to be effected, I agree with the Tribunal’s analysis, approach and conclusion that, in effect, it is not the broad policy to which it should have regard, but how this is expressed in the relevant regulatory scheme. That it is the regulations which provide the framework to achieve the policy objectives. In this regard the Tribunal was correct to see itself as having to conduct its consideration within the “boundaries” provided for in the regulatory scheme.

20. To have regard to policy which was outside, or may be inconsistent with, what was within the “boundaries” of the regulatory scheme would lead to error. The very error already otherwise found in this case.

21. It is convenient, given the interrelated nature of the two issues, to consider the “irreparably severed” issue, before returning to complete consideration of the “involuntary separation” issue.

Irreparably Severed

1. The Tribunal’s analysis proceeded on the basis that the closeness of the relationship was the “key” to determining what is a relevant period ([78]). That the relationship, in the current case, up to the time of the cessation of contact, was very close.

2. The Tribunal’s reasoning as to why the closeness of the relationship argues for a longer, rather than a shorter, period was that this would enable a conclusion to be properly reached as to whether the relationship had been irretrievably broken down or even severed ([76]).

3. I understood the Tribunal’s logic to be that, in a hitherto close relationship, it was not possible to conclude in a short period that, if contact were to be re-established, the “closeness” of the relationship would not “resume very shortly” ([76]).

4. The converse, by way of comparison, was that if a relationship which had never been close was interrupted in the same way as the “close” relationship, then there would be no “natural expectation” that the breach would heal within the reasonably foreseeable future, and therefore a shorter period to be applied would be a reasonable period ([76]).

5. What can immediately be said is that this appears to argue from the general to the particular. But the task facing the Tribunal was to make sense out of what was meant in the regulation as to a “reasonable period”, in the absence of any definition, or other helpful, or relevant, guidance.

6. In the current case, it was open to the Tribunal, and it was not inconsistent with the regulation, to reason that the closeness of the relationship was a relevant factor, even a key factor. It must be remembered after all, that the reasonable period was said to relate to whether “contact” between the protagonists had taken place. In my view, there was no error in the Tribunal reasoning that the degree of closeness of the relationship would be a relevant factor as to what was a reasonable period.

7. The review applicant’s submissions before the Court made reference to the government’s compassionate policy objectives in effecting family reunions (Government or political policy to be distinguished from Departmental policy). The Tribunal’s reasoning fell within this framework. The degree of the closeness of a familial relationship is surely a relevant factor in determining the possibility of re-establishing “contact”, given that what is otherwise sought to be effected was family reunion.

8. Importantly, the Tribunal’s reasoning was not inconsistent with the regulatory scheme.

9. Similarly, nor can I see that the notion of the relationship being irreparably severed as being irrelevant to the consideration, either of itself, or as it may be said to inform what is the length of a “reasonable period”.

10. The review applicant’s attack on the Tribunal was to say that this was not part of the regulatory requirement. The submissions were that the Tribunal should look to contact as a “proxy” for the existence of a relationship with an overseas near relative. In essence, whether some other country has an equal moral responsibility to effect the family reunion.

11. In this sense, it was said, irreparable severance of the relationship is not relevant to establishing what is a reasonable period. The review applicant argues that the Tribunal, instead, should look to the circumstances of the lack of contact to determine whether it would be appropriate to call on Australia to facilitate the family reunion.

12. With respect, the applicant’s submissions, in my view, seek to impose what can be described as some vague notion of national moral responsibility, and for the Tribunal to decide, on a comparative basis, where the greater call lays.

13. This situation cannot be compared with, say, Australia’s protection obligations flowing from our having become signatories to the UN Convention Relating to the Status of Refugees. The “moral” obligation primarily flows from such a commitment.

14. Here there is nothing in the policy, as expressed in the relevant regulatory (and statutory) scheme to say that the objective is to effect family reunion in each and every case. This really being one of the assertions underlying the applicant’s call to Australia’s so-called moral obligation to effect family reunion.

15. The visa applicant’s two daughters were “overseas near relatives”. The applicant’s representative plainly conceded this before the Tribunal. The regulatory scheme clearly sets out a scheme that limits the scope of any objective of family reunion where the visa applicant has had “contact” with an overseas near relative within a “reasonable period”.

16. Any plain reading of the Tribunal’s analysis reveals that the Tribunal was not concerned as to whether the relationship in the current case had actually been irretrievably been severed. The review applicant’s submissions sought to distinguish between the Tribunal’s being concerned to make such a finding (as implicit in the submissions), and the Tribunal seeking to make sense of what “a reasonable period” means and, more pointedly, how it may be measured in the circumstances before it.

17. In this regard the Tribunal’s reasoning can be understood as being that not having contact can be derived from circumstances where the relationship has been irretrievably severed. Plainly the chances of re-establishing contact in those circumstances are greatly diminished. Thus, notwithstanding that such an applicant may have an “overseas near relative” the chances of “contact”, would be remote.

18. In my view, not only is it the case that the Tribunal’s approach is not inconsistent with the regulatory scheme, it is in fact consistent. The key to understanding the Tribunal’s approach in this regard is that it was clearly not just focussed on what was a “reasonable period” in the circumstances, but what was a “reasonable period” within which no contact took place between the protagonists. In this context, notions of irreparable severability of the relationship are directly relevant as to what may be reasonable in the circumstances.

1. The applicant’s attack in this way, and the call to engage notions of facilitating family reunion, ignore the very purpose, the context, within which the Tribunal sought to determine what was a “reasonable period”. That is, a period within which no contact was had between the close relatives. In setting that period, and the reasonableness of its length, any severing of the relationship, and its being intertwined with the severing of contact, is in my view highly relevant.

2. As Mr Potts submitted, no error, let alone jurisdictional error, is revealed in these circumstances.

Involuntary Separation

1. In relation as to whether the involuntary nature of the loss of contact led to an unfair outcome, and that the Tribunal should not have rejected consideration of it on that basis, no error is revealed on this basis, given what I have already set out above (see [157] – [177] above).

2. However, I do agree with Mr Lloyd, although not for reasons of “fairness”, that the issue of the involuntary nature of the loss of contact was part of the relevant circumstances, and could inform what was a reasonable period.

3. I say this for exactly the same reasons as the Tribunal advances in support of the contention that the closeness of the relationship is a relevant consideration.

4. If the Tribunal’s reasoning is that the closeness of the relationship suggests a longer, rather than a shorter period as being reasonable, then its reasons for rejecting the relevance of voluntariness, or specifically the involuntary nature of the loss of contact, are inconsistent with this thinking.

5. The Tribunal focussed on the examples of a relationship being severed either by a family quarrel, or events outside the control of the family, for example separation because of a war (see [76] and [78]). It proceeded from what it drew from these examples to find that the “voluntariness” or “involuntariness” was not relevant to the lack of contact, and therefore relevant as to what could be said to be a “reasonable period”.

6. First, if the regulatory scheme provides for a visa to be granted in circumstances where there has been no contact for a “reasonable period”, then the Tribunal’s reliance on these certain factual examples do not provide a complete answer as to why the involuntary nature of the cessation of contact was not a relevant consideration, in the same way that the closeness of the relationship was relevant.

7. Second, if the mother had quarrelled with the children, or they had been separated in different countries as a result of war, then in those circumstances the voluntary, or involuntary, nature of the cessation of contact may indeed not have been relevant.

8. But the Tribunal’s reasoning reveals error for the same reason as it advanced in rejecting the review applicant’s representative’s argument that, in the circumstances, a reasonable period should be interpreted as being something less than ten months. The Tribunal said: “With respect, it appears to me that this represents little more than reasoning back from the outcome which they desire to determine a ‘reasonable period’ which will achieve that outcome” (at [79]). This can be said to equally apply to its own reasoning in relation to the involuntary separation issue.

9. The Tribunal’s starting and ending point should always be the actual circumstances before it. What is a reasonable period should not be finally determined from examples that have nothing to do with the actual circumstances of the case.

10. The giving of examples can often be a useful way of illustrating a point, or thinking in relation to the point, that the Tribunal seeks to make. But they can never be a substitute for the actual circumstances themselves.

11. In the current case, the Tribunal’s reasoning in this regard was entirely dependent on the examples it gave. Examples that had nothing to do with the actual circumstances of the case before it. There is of course no error in giving examples to illustrate a point to be made, but this requires the examples to ultimately and directly relate to the actual circumstances before it.

12. It may be that, for good reason, and in some sense understandably, (given what had transpired in relation to the earlier constituted Tribunal decision) the Tribunal sought to avoid dealing with the “elephant in the room”.

13. But the circumstances of this case, as presented and accepted by the Tribunal, were relevantly as follows. The father had taken the two daughters away. He did not return them. The visa applicant had had no contact with them since that time. The submission to the Tribunal was that it was relevant that the lack of contact was involuntary in the circumstances of this case.

14. The Tribunal did not reject this submission by having regard to the actual circumstances before it. It rejected not only the submission, but the need to even consider the submission made, with reference only to examples that had nothing to do with the actual circumstances that came before it, and which it accepted.

15. It may be that, ultimately, the involuntary nature of the cessation of contact (if this is what the Tribunal were to find) may have led to the same outcome. That is that a reasonable period was three years. But equally, it may be that it could have resulted in a different outcome. That of course would have been for the Tribunal to determine.

16. But to determine it with reference to the circumstances as presented, and as found. The Tribunal’s error was the failure to see this factor as relevant to its consideration of what is a reasonable period. A failure to take into account a relevant consideration is jurisdictional error.

Conclusion

1. There are two errors in the Tribunal’s decision. First, a reliance on a policy repugnant to the relevant regulation or alternatively the taking into account of an irrelevant consideration. Second, the failure to take into account a relevant consideration. Both circumstances amount to jurisdictional error. The relief the applicant seeks is discretionary. In my view, for the reasons above and in the absence of any argument to deny the grant of the relief, it is appropriate that the relief be granted. I will grant the relief sought by the review applicant.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date:  10 December 2009