Huang v MIMIA - [2007] FMCA 720

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 720

MIGRATION – Review of Migration Review Tribunal decision. – visa – aged dependent relative – misapplication of departmental policy – Tribunal not to apply policy uncritically – Tribunal must make an independent assessment of the circumstances – each case to be considered on its merits.

STATUTORY INTERPRETATION – Delegated legislation – inconsistent provisions – meaning of “wholly or substantially”.

Migration Act 1958, ss.359, 359A, 361, 362, 363, 474, pt.5 div.5
Migration Regulations 1994, regs.1.03, 1.05A, 2.03, sch.2
Migration Amendment Regulations 1999 (No. 13), sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690
Commissioner for Superannuation v Scott (1987) 13 FCR 404
Zeng v Minister for Immigration [2005] FMCA 546
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331
Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
SZECG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 733
SZCNG v Minister for Immigration & Anor [2006] FMCA 505
NABE v Minister for Immigration & Multicultural & Indigenous Affairs
(No.2) (2004) 144 FCR 1

Applicant:

ROSA TAN HUANG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:	SYG 2020 of 2005
Judgment of:	Cameron FM

Hearing dates:

15 December 2006 and 15 February 2007

Date of Last Submission:

15 February 2007

Delivered at:

Sydney

Delivered on:

16 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr G. Young

Solicitors for the Applicant:

Villanueva Solicitors

Counsel for the Respondents:

Ms L. Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 4 July 2005.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

9 April 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2020 of 2005

ROSA TAN HUANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By her further amended application dated 19 January 2007, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) dated 4 July 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) dated 9 April 2003 refusing the applicant’s application for an Other Family (Residence) (Class BU) visa.
The decision of the Tribunal is ostensibly a privative clause decision as defined in s.474 of the Migration Act (“Act”). Such a decision may only be set aside if it is shown to involve jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

Background facts

The applicant is a national of the Philippines and was born on 9 May 1934. She entered Australia on 24 October 1999 and since then has, apart from a return visit to the Philippines, lived with her only son in Australia. She has four daughters living in the Philippines.

The applicant sought a visa on the basis that she was an “aged dependent relative” of her son, as that term is defined in the Migration Regulations 1994 (“Regulations”). The basis on which the delegate of the Minister did not grant the applicant’s visa application was that the applicant failed to meet the definition of “aged dependent relative” in the Regulations, in that the delegate was not satisfied that the applicant had been wholly or substantially dependent on her son for financial support to meet her basic needs for food, clothing and shelter for

a substantial period immediately proceeding her application.
The facts alleged in support of the applicant’s claim for a visa are set out on pages 159 – 162 of the Court Book (“CB”). In relation to the history to the applicant’s claim I adopt the summary found in the Minister’s submissions:
12. The applicant claimed her husband had died in 1990. Before his death, he had run a small chicken farm in Manila. After her husband’s death she lived with her son who continued to raise the chickens until 1995 when Newcastle disease forced the slaughter of the chickens. The applicant claimed that the chicken farm had been left to her son and that she had received a small amount of money from her husband’s estate. She had originally invested the money in a bank but withdrew it and used the money for living expenses. By the time she had come to Australia she had spent it all. With the exception of her son (the “nominator”) her remaining children were unable to support her.
13. The nominator moved from Manila to Australia in September 1998. At that time the applicant went to live with her eldest daughter until she came to Australia in October 1999. During this period, the applicant’s daughter and her daughter’s husband provided her with accommodation and food. The nominator had sent her two sums of money amounting to $3,500 in total during the 12 month period. When the applicant arrived in Australia she brought with her $1,000 of the $3,500 the nominator had previously sent to her. The nominator had paid for the applicant’s air fare to Australia.
14.Since living in Australia, the applicant claimed that the nominator had supported her entirely. The nominator had also paid for a return flight by the applicant to the Philippines in 2000 to collect her personal belongings.
Additional facts relevant to the subject of dependency were contained in the affidavits of her four daughters who are still living in the Philippines and which were submitted to the Tribunal in support of the application for review, namely (CB 160):
a)one of the applicant’s daughters, Mary Jane San Agustin deposed that she cannot provide financial support to her mother due to limited financial circumstances;
b)another of the applicant’s daughters, Margaret Huang Culibra deposes that she is not financially capable of supporting her mother as the income of her family is inadequate to satisfy the family budget;
c)another daughter of the applicant, Maria Anabelle Antonio deposes that her resources are too scant for her to extend financial support to her mother;
d)another daughter, Mary Rose Huang also deposes that she does not have the financial resources to support her mother; and
e)Mary Jane San Agustin and Margaret Huang Culibra both depose to the fact that the applicant’s son has financially supported the applicant for a period of years.
I note that the affidavit of Ms Agustin was not reproduced in the Court Book.

The Tribunal’s decision and reasons

The Tribunal was required to have regard to cl.838.221 and cl.838.212 of pt.838 of sch.2 to the Regulations which required the applicant, at the time of application, to be an “aged dependent relative” of a settled Australian citizen, permanent resident or eligible New Zealand citizen usually resident in Australia who nominated the applicant for the grant of a visa. The applicant’s son, the nominator (“Nominator/Son”) was a permanent resident.
The regulations relevant to the applicant’s application were

reg.1.03 and reg.1.05A. Regulation 1.03 provides:
"aged dependent relative", in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and
(b) has been dependent on that person for a reasonable period, and remains so dependent; and
(c) is old enough to be granted an age pension under the Social Security Act 1991.
The term “dependent” is defined in reg.1.05A of the Migration Regulations which relevantly provides:
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)…
The Tribunal was satisfied that the applicant met the requirements of (a) and (c) of the definition of “aged dependent relative” under

reg.1.03 because she was widowed at the time of application and old enough to be granted an age pension. However, the Tribunal was not satisfied that the applicant met the requirements of paragraph (b) on the basis that she did not satisfy the definition of “dependent” found in reg.1.05A.
The Tribunal stated that it had to be satisfied that the applicant had been substantially reliant on the Nominator/Son for financial support to meet her basic needs for a substantial period. In this regard, the Tribunal noted that in the visa application form the applicant said that she had been dependent on the Nominator/Son for ten years although in her affidavit her daughter Ms Culibra said that the period had been five years.
Under the definition of “aged dependent relative”, the relative also has to have been dependent on the nominator for a reasonable period which under departmental policy was taken to be three years. The Tribunal noted that as the application had been lodged in April 2000, the period under consideration in respect of this definition was April 1997 to April 2000.
The Tribunal found that the applicant became a widow in 1990 and noted the claim that the family chicken farm was left to the Nominator/Son as the eldest son although the applicant continued to live on the farm, which she managed, and derived her income from it. The Tribunal noted the claim that the farm became unproductive in 1995 because of an outbreak of disease and that the Nominator/Son found work elsewhere. He claims to have supported the applicant from that time by paying her daily expenses and occasional bills.
The Tribunal accepted that the Nominator/Son would have contributed to the applicant’s upkeep in the period after her husband’s death although she had some money of her own which her husband had left to her.
The ownership of the chicken farm was unclear and the Tribunal observed that although it was stated in evidence at the hearing that the farm was left to the Nominator/Son as the eldest son, in his statutory declaration, the Nominator/Son described the applicant as a co-owner.
The Tribunal accepted that the Nominator/Son provided financial support to the visa applicant with an amount of up to $3,500 once he came to Australia in September 1998 and that he fully supported the applicant after she arrived in Australia in October 1999.
The Tribunal was not satisfied that the applicant had fully disclosed her financial position between 1997 and the time of the application noting the following:
a)the Nominator/Son had stated that the applicant and her husband had been co-owners of the farm;
b)in his statutory declaration, the Nominator/Son did not claim, as he did at the hearing, that he had inherited the farm;
c)as a co-owner, the applicant would have retained a share of the farm and she had not been very specific about the amount she was left by her husband, how she invested it or whether she retained an amount in the Philippines.
Although noting them, the Tribunal made no findings on these matters.
The Tribunal did find that:
a)after she left the farm the applicant was provided with food and accommodation by her eldest daughter for approximately a year. During this period, the money that was provided by the Nominator/Son was used for other expenses and the applicant did not spend it all; and
b)although the applicant was dependent on the Nominator/Son once she arrived in Australia, only a period of approximately six months lapsed before she lodged her visa application.
Consequently, although the Tribunal accepted that the Nominator/Son had contributed to the applicant’s living expenses and support since 1995 it was not satisfied that the applicant had been, for a substantial period immediately before the application, wholly or substantially reliant on the Nominator/Son for financial support to meet the applicant’s basic needs of food, clothing and shelter.

Proceedings in this Court

At the hearing fewer points were pressed than had been included in the further amended application. At the hearing, the applicant asserted that the Tribunal committed jurisdictional error in that it misdirected itself by asking the wrong questions and/or failing to ask the right questions based on the following pleaded grounds:
(a) The MRT asked whether the visa applicant had expended all the money sent to her by her son (the “nominator”) in Australia on food, clothing and shelter. Whereas the MRT should have asked whether the visa applicant was “wholly or substantially reliant on th [sic] other person for financial support to meet the first person’s basic needs for food, clothing and shelter” in accordance with regulation 1.05A(1)(a)(i).
(aa) The MRT failed to reconcile the differences between “a reasonable period” referred to in regulation 1.03(b) and “a substantial period” referred to in regulation 1.05A(a)(i) against the unchallenged evidence in this case that the applicant was “wholly” reliant on the nominator for financial support for a combined period of one (1) year and eleven (11) months of the three (3) year period stated as “reasonable” by policy.
…
(c) The MRT failed to ask whether the nominator had an obligation (and the extent of the obligation) to meet the visa applicant’s needs having regard to the nominator’s special relationship with the visa applicant, especially as there was evidence of Chinese custom that the only son had a duty to care for his mother.
…
(f) The MRT failed to request evidence from the visa applicant in writing as required under s.359A of the Migration Act 1958, which ultimately proved to [be] the basis of the MRT decision to affirm the decision of the Minister’s delegate, namely:
- the title deed of the visa applicant’s family farm to confirm she did not inherit ownership after her husband passed away in 1995;
- her deceased husband’s will, grant of probate or her deceased husband’s bank account at the date of death to confirm the visa applicant’s evidence that she only inherited a small sum of money;
(g) The MRT made findings contrary to the evidence.
Dealing with each of those grounds in turn:

The Tribunal should have asked whether the applicant met the test in reg.1.05A(1)(a)(i) rather than whether she had spent all the money sent to her by her son on food, clothing and shelter

Wrong test of “substantially” applied

The argument in respect of this ground turns on the question which the applicant said the Tribunal should have asked and, in that context, what meaning was appropriate to be given to the word “substantially” in the reg.1.05A(1)(a)(i) requirement that an applicant has to be for a substantial period “substantially reliant” on their nominator.
The finding of the Tribunal was in the following terms:
Although the Tribunal accepts that the nominator has contributed to the visa applicant’s living expenses and support since 1995 it is not satisfied on the evidence before it that the visa applicant has been for a substantial period immediately before the application, wholly or substantially reliant on the nominator for financial support to meet the visa applicant’s basic needs for food, clothing and shelter. (CB 164)
The factual findings supporting this conclusion were:
a)the Nominator/Son provided financial support to the applicant of an amount up to $3,500 once he came to Australia in September 1998;
b)during the period after she left the farm the applicant was provided with food and accommodation by her eldest daughter for approximately a year; and
c)while the applicant was living with her daughter the money that had been provided by the Nominator/Son during that period was used for other expenses including medical care and good quality clothing and the applicant did not spend it all. The Tribunal commented that this suggested that the applicant did not require the whole amount of $3,500 for her basic needs during the period September 1998 to October 1999 when she was living with her daughter Margaret.
The applicant referred to Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690, a decision of the Full Court of the Federal Court which followed the reasoning of a differently constituted Full Court in Commissioner for Superannuation v Scott (1987) 13 FCR 404, which held that “substantially” in the phrase “wholly or substantially dependent” involved the notion of predominance while noting that a purely quantitative approach will not necessarily determine the issue of dependence. The Court was also taken to Zeng v Minister for Immigration [2005] FMCA 546 in which the issues of dependence and substantial dependence were considered.
In Graovac, Branson and Hely JJ said at [10] to [13]:
Scott's case establishes that "substantially" where used in the phrase "wholly or substantially dependent" is appropriately paraphrased by the words "in the main", or "as to the greater part": Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, per Hill J. In Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418, 422 the Full Court held that the phrase "the whole, or substantially the whole, of the money paid for the purchase" in s 116(3) of the Bankruptcy Act 1966 would be satisfied where "nearly all of" the money used in payment comes from protected funds, but it is not sufficient for a significant part of the purchase price (in that case almost half) to come from protected funds.
Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially".
We respectfully disagree with his Honour's conclusion, in the example referred to in [3] above, that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon C that A is mainly dependent. Whilst B's contribution may be essential to A's support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking.
However, in Scott, Fisher and Spender JJ said that a person may be dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other. Thus there may be cases in which a purely quantitative approach will not necessarily determine the issue of dependence. And, in Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97 Mansfield J held that the expression "wholly or substantially dependent" was intended to convey that the visa applicant had a need to rely upon another person for financial support, rather than simply describing the fact that another person was providing that financial support. (emphasis in original).

It is apparent that when articulating its conclusion, the Tribunal considered whether the applicant met the test under reg.1.05A(1)(a)(i) but, as noted by the applicant, the Tribunal understood the meaning of “substantially” by reference to the Macquarie Dictionary definition rather than by reference to authority. Although the dictionary definition’s test
“ample or considerable amount”
might seem an easier test for the applicant to satisfy than the concept of predominance seen in Graovac, it is not the correct test. The Tribunal should have asked whether the applicant was predominantly or “primarily, essentially or in the main” dependent on the Nominator/Son, rather than use the test it did apply. The failure of the Tribunal to apply the correct test means that its decision is affected with jurisdictional error.

Irrelevant considerations taken into account

The applicant also submits that the Tribunal took into account irrelevant considerations when determining that the applicant was not wholly or substantially reliant on the Nominator/Son during the relevant period. The irrelevant considerations said to have been taken into account are set out in the applicant’s written submissions dated

14 December 2006 as follows:
·    The nominator declared he was left to manage the farm yet in his oral evidence he said that he inherited the farm;
·    If the applicant was a co-owner of the farm, she would have retained her share after he [sic] husband passed away;
·    The applicant had not submitted further information on the precise amount left by her husband in 1990, how it was invested and whether she retained an amount in her daughter’s (presumably Margaret’s) account;
·    $A1,000 was leftover [sic] from the $A3,500 sent by the nominator, which suggested the applicant did not require the whole amount during the period;
·    Whilst living with Margaret for a year, the applicant was provided with food and accommodation.
Those matters can be found in the Tribunal’s discussion at paragraph 48 of its decision. As to the last of those points, this was a factual finding which was central to the Tribunal’s ultimate decision. The applicant disputes the part of that finding relating to whether the daughter Margaret provided the applicant with food but factual findings of that sort are matters for the Tribunal. In any event, a consideration of the issue was expressly required by reg.1.05A(1)(a)(i).
As to the remaining four points raised by the applicant, these were not points or matters upon which the Tribunal reached a conclusion or apparently were considered by the Tribunal other than in the sense that they substantiated its comment at the beginning of paragraph 48 of its decision that it was not satisfied that the visa applicant had fully disclosed her financial position between 1997 and the time of the application. The matters referred to in those four points were elements of the evidence as well as the Tribunal’s observations on that evidence which it set out in order to explain why it was not satisfied that all relevant matters had been disclosed.
The complete disclosure of the applicant’s financial position was clearly a consideration relevant to the question of her reliance on her Nominator/Son for financial support to meet her basic needs. The fact that the applicant disagrees with the Tribunal’s treatment of the evidence and its decision to refer to some aspects of the evidence rather than to others does not mean that the Tribunal took account of an irrelevant consideration. The consideration was whether the applicant had made full disclosure, not the evidence which supported the conclusion on that question, and this was a relevant consideration.

The Tribunal failed to reconcile the different tests in regs.1.03(b) and 1.05A(1)(a)

The parties agreed that the definition of “dependent” found in reg.1.05A was to be used in understanding how that word is used in reg.1.03. The applicant submitted that the different words “substantial period” in reg.1.05A(1)(a)(i) and “reasonable period” in reg.1.03(b) must mean different things and that, if they are to work together, some form of reconciliation of their meanings ought to have been attempted by the Tribunal. The Minister submitted that the reference to “substantial period” in reg.1.05A(1)(a)(i) does not confine, restrict or alter the meaning of “reasonable period” in reg.1.03(b) and that, rather, the word “dependent” in the latter regulation is simply informed by the definition of “dependent” in the former regulation.
What the Minister is really saying is that the “reasonable period” provision in regulation 1.03(b) takes precedence over the “substantial period” provision in reg.1.05A(1)(a)(i) with the consequence that regard need only be had to what period was a reasonable period. However, it should be noted that the Tribunal expressed its conclusion in paragraph 50 of its decision in terms of the “substantial period” test, not the “reasonable period” test.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382 McHugh, Gummow, Kirby and Hayne JJ discussed statutory construction in the following terms:
Conflicting statutory provisions should be reconciled so far as is possible
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”, Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent”. (footnotes omitted)
In this case, the relevant regulations create a scheme by which applicants can be determined to be, or not to be, aged dependent relatives.
Regulation 2.03(1) provides that the prescribed criteria for the grant of a visa of a particular class are the criteria set out in sch.2 to the Regulations. At the relevant time, the criteria relevant to these proceedings were found in cl.838.212 of sch.2 of the Regulations and were set out in the Tribunal’s decision:
The applicant is an aged dependent relative of a person who:
(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b) is usually resident in Australia; and
(c)has nominated the applicant for the grant of the visa.
As set out in paragraph 7 above, “aged dependent relative” is defined in reg.1.03 as a relative of an Australian citizen, permanent resident or eligible New Zealand citizen who is single, old enough to be granted the age pension and “has been dependent on [the nominator] for a reasonable period and remains so dependent”. As recorded in paragraph 8 above, the word “dependent” is defined in reg.1.05A and, amongst other things, requires the applicant to have been wholly or substantially reliant on the nominator for his or her basic needs, food, clothing and shelter “for a substantial period before [the application]”.
The clear purpose of the regulations is to ensure that the nominator has a genuine responsibility to support the applicant and has been doing so for long enough prior to the application to demonstrate that the alleged relationship of dependence is real and enduring.
The “aged dependent relative” definition has been part of the regulations since they were originally made in 1994 – Migration Regulations 1994 (No. 268).
In the Regulations as originally made, reg.1.03 contained a definition of “dependent” in the following terms:
"dependent", in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support.
This definition was deleted by the Migration Amendment Regulations 1999 (No. 13) and reg.1.05A was introduced in its place. At the same time, the definition of “dependent child” was substituted with a new definition.
The Explanatory Statement relating to the 1999 amending regulations states:
New subregulation 1.05A(1) inserts a definition of “dependent”, which is applicable to every [non – reg.1.05A(2)] situation in which a determination must be made about whether one person is “dependent” on another. That is, new subregulation 1.05A(1) creates a definition of “dependent” which is applicable to every situation other than an application for a class of visa listed in new subregulation 1.05A(2).
The amendments effected in 1999 do not indicate that any change to the purpose of the Regulations, in so far as they relate to aged dependent relatives, was intended and it is significant that the expression “wholly or substantially dependent” appeared in the original as well as in the new definition of “dependent”.
In relation to what meaning can be ascribed to “substantial”, in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 Deane J said at 348:
The word "substantial" is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase "substantial loss or damage", it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v. Grinling [1948] A.C. 291 where, after holding that, in the context there under consideration, the meaning of the word was equivalent to "considerable, solid or big", he said: "Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ... " . (See also A. E. Terry's Motors Ltd. v. Rinder [1948] S.A.S.R. 167, at p. 180 and Granada Theatres Ltd. v. Freehold Investment (Leytonstone) Ltd. [1958] 1 W.L.R. 845, at p. 848.)
In the context of s. 45D(1) of the Act, the word "substantial" is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular, actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s. 45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. (footnotes omitted.)
In the context in which the word “substantial” is used in reg.1.05A, given the identified purpose of the regulations to ensure a real and enduring relationship of dependence, and its use as a tool of quantification of time, it should be understood to mean a lengthy period.
By contrast, a “reasonable period” need not be lengthy. In order to test whether the applicant and the nominator do have a real and enduring relationship of dependency a lengthy period of dependency may not be a reasonable thing to require. For instance, were the applicant to have been widowed in the Philippines one year before the application, in circumstances where the nominator was her only child and had been supporting her since the death of her husband, and where she was less and less capable of caring for herself, a one year period of dependence might meet the test of “a reasonable period”. Individual circumstances will affect what amounts to a reasonable period, ignoring for the moment the three year period stated by departmental policy to be a reasonable period (CB 163).
Notwithstanding that reg.1.05A post-dates reg.1.03, the principal of the two definitions is the “aged dependent relative” definition because it is intended as a specific definitional provision for use in the understanding of cl.838.212. On the other hand, reg.1.05A is a more general definitional provision for use whenever “dependent” appears in the Regulations and thus should be seen to be subordinate. The hierarchy of provisions relevant to this application is in accordance with the order in which the Tribunal referred to them in its decision, namely:
a)clause 838.212, setting out criteria for the granting of the visa;
b)the definition of “aged dependent relative” in reg.1.03 which defines a term in cl.838.212; and
c)the definition of “dependent” in reg.1.05A which defines a word in reg.1.03.
Approached this way, and if it is necessary, it is possible to adjust the meaning of regs.1.03 and 1.05A, and their use of “reasonable period” and “substantial period immediately before [the application]”, to produce a result which gives them effect but maintains the unity of all the regulatory provisions. It will be necessary here to adjust the meanings of the regulations as the words “reasonable” and “substantial” do not mean the same thing.
The Tribunal should have sought to reconcile the two definitions and, in doing so, should have concluded that the predominant provision, the definition of “aged dependent relative” with its reference to a “reasonable period”, took precedence over the definition of “dependent” in reg.1.05A with the consequence that the latter’s reference to a “substantial period” had to be read down to mean a period not more substantial than a reasonable period.
The Tribunal did not turn its mind to whether or how the two definitions should be reconciled. It implicitly felt bound to have regard to the departmental policy defining a reasonable period as three years and, by reference to the Macquarie Dictionary definition rather than to authority, it understood “substantial” or “substantially” to mean “ample or considerable amount”.
In relation to the application of departmental policy, it is clear that the Tribunal has not exercised an independent discretion but has applied the policy without considering whether, in the circumstances, it was appropriate to do so. In Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189, French and Drummond JJ said at 205 – 206:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:
“If the original decision maker has properly paid regard to some general governmental policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be."
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.
The place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421 …
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 420):
" ... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power."
This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal.
In considering an application where the Tribunal had to determine what was reasonable in the circumstances of the application, it referred to and relied on policy without determining whether the three year period laid down by that policy was reasonable in the circumstances of this application. In so doing, the Tribunal did not engage in an independent assessment of all the circumstances of the particular case, in particular what period was reasonable in the circumstances, and instead uncritically applied departmental policy. It was appropriate that the policy be taken into account when considering the issue of what period was a reasonable period but the individual circumstances of the case ought also to have been taken into account and they were not.
However, having applied policy without considering its appropriateness the Tribunal actually concluded in paragraph 50 of its decision that the applicant had not been dependent on the Nominator/Son for a substantial, rather than a reasonable, period immediately before the application:
Although the Tribunal accepts that the nominator has contributed to the visa applicant’s living expenses and support since 1995 it is not satisfied on the evidence before it that the visa applicant has been for a substantial period immediately before the application, wholly or substantially reliant on the nominator for financial support to meet the visa applicant’s basic needs for food, clothing and shelter. (CB 164)

It is not clear what the Tribunal means by this given that it previously said that it understood “substantial” to be “ample or considerable amount”. It did not identify what period this represented in the circumstances although it seems to have accepted, without finding, that the three year period laid down by policy met the test of “substantial period”. If this was so, the relevance of its reference in the quoted passage to the Nominator/Son contributing to the applicant’s living expenses and support since 1995 is not obvious and suggests that a period greater than three years might have been the period considered by the Tribunal.
By its failure to:
a)reconcile the provisions of regs.1.03 and 1.05A to enable both to be given effect while maintaining the unity of the regulatory provisions because it failed to identify reg.1.03 as the predominant provision; and by
b)uncritically applying departmental policy without independently assessing what period was reasonable in the circumstances in order to apply the test set out in reg.1.03
the Tribunal failed to exercise its jurisdiction and is in error as a consequence.

The Tribunal failed to take into account the Nominator/Son’s customary obligation to care for his mother

The test which the Tribunal was obliged to apply did not, in its terms, require it to consider this issue. Regulations 1.03 and 1.05A are concerned with the applicant’s dependency on the Nominator/Son, not the cultural obligations of the Nominator/Son to the applicant.
However, the consideration of this issue is affected by the test of dependency as discussed in Graovac’s case. As Branson and Hely JJ noted at [16]:
In our opinion, the trial judge was correct when he said that the issue of whether the state of affairs which subsisted at the time of decision is one in which the respondents are wholly or substantially dependent upon the supporter must be considered in the light of all of the relevant circumstances. In a case such as the present, to restrict the enquiry to a consideration of the comparative financial contributions of the refugee centre and the supporter to the support of the respondents provides too narrow a focus for a determination of the issue of substantial dependency
And at [18]:
Given that financial dependency can exist notwithstanding that it is not being met, and given the abnormal conditions subsisting in [Yugoslavia] at the relevant time, a broader consideration of the respondents' financial position and of their personal relationship with the supporter was required, in order to determine whether the status of the respondents at the relevant time was that of persons wholly or substantially dependent on the supporter for financial support. (emphasis in original)
The Tribunal’s failure to apply the correct test of what amounted to being “wholly or substantially” dependent means that it failed to consider this aspect of the applicant’s case. Consequently, jurisdictional error has been demonstrated in relation to this ground.

The Tribunal was in breach of its obligations under s.359A of the Act

In the further amended application this ground is expressed to be a failure by the Tribunal to request evidence from the applicant relating to the title documents for the applicant’s family farm in the Philippines or her husband’s will, grant of probate or bank account.
Section 359A(1) provides:
Subject to subsection (2), the Tribunal must:
(a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)   invite the applicant to comment on it.
The section does not impose on the Tribunal an obligation to conduct enquiries. Rather, it is a provision which provides the applicant with an opportunity to respond to particular information known or held by the Tribunal.
In relation more generally to a postulated duty imposed on the Tribunal to initiate enquiries, the provisions of div.5 of pt.5 of the Act set out how the Tribunal ought to conduct its review. It may seek additional information (s.359), it may comply with a request by an applicant to call witnesses and obtain oral or written evidence (ss.361, 362), it may summon a person to appear to give evidence or to produce documents (s.363) but it need not do these things. In relation to the analogous position of the Refugee Review Tribunal, it was held by Gleeson CJ, Gummow and Hayne JJ that that Tribunal was under no duty to make enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 13 [1], 21 - 22 [42] and [43]. Guided by their Honours’ reasons for judgment in SGLB I am of the view that the Tribunal had no duty to make the enquiries suggested in this asserted ground of review.
As to what s.359A(1) does require, namely that certain information be provided to the applicant in order that he or she might comment on it, I adopt the submissions of the Minister dated 6 December 2006:
To the extent that this ground alleges that there was reliance by the Tribunal upon the discrepancies between the nominator’s statutory declaration and the applicant’s information, the information relied upon was provided by the applicant in response to a request to the applicant under s359(2) of the Act: see CB 98 and 101.
Again, the information gleaned by the Tribunal from the applicant’s daughter’s statutory declaration was information provided by the applicant herself pursuant to a request from the Tribunal during the hearing: CB 163 at [37] and CB 135 – 136.
There was no breach of the Tribunal’s obligations under s359A in circumstances where the information relied upon by the Tribunal is information given by the applicant to the Tribunal for the purposes of the application: s359A(4)(b) of the Act.
The Minister notes that it has been held that evidence given by a relative in visa applications is not evidence given by the applicant for the purposes of the review: see SZECG v MIMIA [2006] FCA 733 per Branson J and SZCNG v MIMIA [2006] FMCA 505 per Barnes FM. However both these cases concerned information given orally by relatives at the Tribunal hearing and not in written form by the applicant. The Minister submits that when information is given to the Tribunal by an applicant in written form (in this case in the form of a statutory declaration by another person) it can be logically distinguished from the situation where a witness gives oral evidence to the Tribunal: see SZECG at [22] – [23] and SZCNG at [41]. (footnotes omitted)
As Barnes FM said in SZCNG at [48]:
The contents of such written material was clearly part of the evidence put to the Tribunal by the applicant. If an applicant chooses to put written evidence or a prepared statement of a witness to the Tribunal in circumstances where the applicant must be taken to have advance knowledge of the precise contents of such evidence, the applicant should properly be seen as giving information contained in such a statement to the Tribunal.
In respect of the oral evidence given by the Nominator/Son referred to in paragraph 48 of the Tribunal’s decision (CB 164) and which might have generated a s.359A(1) obligation in accordance with the judgments in SZECG and SZCNG, it is to be noted that that information, namely that “he claimed at the hearing that he had inherited the farm”, does not form part of the information relied upon by the Tribunal when stating its lack of satisfaction that the applicant had fully disclosed her financial position. Nor is that information relied upon in arriving at other possible conclusions, such as that the Nominator/Son’s credibility was affected by the inconsistencies in his written and his oral evidence. Rather, it is included as an observation that those two versions were different. A consideration of paragraph 48 indicates that, to the extent that either of them is relied on as part of the Tribunal’s reasoning, it is the written rather than the oral version which is the one relied on.
For these reasons, there was no breach by the Tribunal of s.359A and this ground is not made out.

The Tribunal made findings contrary to the evidence

The applicant submits that that the evidence of the applicant and her daughter Margaret was that there were no bank accounts held by or on behalf of the applicant between 1995 and 1999 and that the Tribunal erred by finding that the applicant failed to disclose her financial position fully.
This ground invites the Court to undertake an impermissible review of the Tribunal’s fact-finding. Such a review is not available in judicial review proceedings. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481[35] per McHugh J.
The applicant also submits that although the Tribunal was dissatisfied with the applicant’s evidence with regard to her financial situation it made no finding as to whether it accepted or rejected her evidence, implying that this amounted to error.
Contrary to the applicant’s submission, the Tribunal did not need to make a finding on the applicant’s credit to be unsatisfied that she had fully disclosed her financial position. In this case, an adverse finding as to the applicant’s credit was not the reason for its conclusion as to the completeness of the applicant’s financial disclosure. The Tribunal’s finding was based on a consideration and comparison of various aspects of the evidence before it and, in those circumstances, no credit finding was necessary.
Consequently, no jurisdictional error has been demonstrated in respect of this ground.

Conclusion

For the above reasons, jurisdictional error on the part of the Tribunal has been made out.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 15 May 2007