Huang v Minister for Immigration and Ethnic Affairs

[1996] FCA 1040

CATCHWORDS

Immigration - Preferential Family visa - interpretation of requirements set out in sub-class 104 in the Second Schedule to the Migration Regulations 1995 - whether the words "if applicable" should be read into sub-cl 104.211(3)(b) so that sponsorship will not be required in cases not specifically provided for in the clause - whether reading such words into the clause will fulfil the legislative purpose - relevance of the existence of sub-class 103 which deals with the issue of sponsorship specifically in respect of children under, as well as children over, 18 years of age - meaning of "special need relative" - whether encompasses normal parent/child relationship 

Migration Regulations 1995 sub class 104, subcl 104.211, 1.03, sub class 103

Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 69 ALJR 778
Williams v the Official Assignee of the Estate of William Dunne (1908) 6 CLR 425
Flaherty v Girgis (1987) 71 ALR 1

SHAN E HUANG v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG 357 of 1996

CORAM:Jenkinson, Hill & Lehane JJ

PLACE:Sydney

DATE:29 November 1996

IN THE FEDERAL COURT OF AUSTRALIA        )
NEW SOUTH WALES DISTRICT REGISTRY        )
GENERAL DIVISION  ) No. NG 357 of 1996

ON APPEAL FROM A SINGLE JUDGE OF THE
                FEDERAL COURT OF AUSTRALIA

BETWEEN:SHAN E HUANG

Appellant

AND:MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS          Respondent

CORAM:Jenkinson, Hill & Lehane JJ

PLACE:Sydney

DATE:29 November 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. The appeal be dismissed.

1. The appellant pays the respondent's costs.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA   )
NEW SOUTH WALES DISTRICT REGISTRY   )  No. NG357 of 1996
GENERAL DIVISION                   )

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:SHAN E HUANG

Appellant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    Jenkinson, Hill and Lehane JJ.

PLACE:    Sydney

DATE:     29 November 1996

REASONS FOR JUDGMENT

JENKINSON J.

I agree in the judgment of Hill J.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:  29 November 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 357 of 1996
  )
GENERAL DIVISION                  )

ON APPEAL FROM A SINGLE JUDGE OF THE
                FEDERAL COURT OF AUSTRALIA

BETWEEN:SHAN E HUANG

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    JENKINSON, HILL & LEHANE JJ
PLACE:    SYDNEY
DATED:    29 NOVEMBER 1996

REASONS FOR JUDGMENT

HILL J:

The appellant, Ms Shan E Huang, appeals from a decision of a judge of this Court (Whitlam J), dismissing her application for judicial review of a decision made by the respondent Minister of State for Immigration and Ethnic Affairs that she be refused a visa to enter Australia.

Ms Huang is a national of the People's Republic of China.  She has one child born on 31 October 1994 in Australia who is an Australian citizen.

On 8 March 1995 Ms Huang applied for a Preferential Family visa.  Relevantly the criteria to be satisfied for the grant of such a visa are those set out in sub-class 104 in the
Second Schedule to the Migration Regulations 1995.  Relevantly sub-cl 3 of cl 104.211 is as follows:

"An applicant meets the requirement of this subclause if:

(a)the applicant is an orphan relative, or a special need relative, of a person (in this subclause the Australian relative) who is:

(i)an Australian citizen; or

(ii)an Australian permanent resident; or

(iii)an eligible New Zealand citizen; and

(b)the applicant is sponsored:

(i)if the Australian relative has turned 18 - by the Australian relative; or

(ii)by the spouse of the Australian relative, if the spouse:

(A)cohabits with the Australian relative; and

(B)is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and

(C)has turned 18."

The expression "special need relative" is defined in the definitional regulation 1.03 in the following terms:

"`special need relative', in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)the assistance cannot reasonably be obtained from:

(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)welfare, hospital, nursing or community services in Australia."

Ms Huang's application for the visa was rejected on the basis that she had not satisfied the prescribed criteria for the visa as she was not sponsored, nor indeed could be, because there is no provision in sub-cl 104.211 for sponsorship in the case of a person who had not attained the age of 18 or who did not have a spouse who was 18 years of age.

It was on this basis that Ms Huang applied to the Court for a review of the decision.  Put shortly, her submission is that the decision-maker erred in law in interpreting sub-cl 104.211(3).  It is said that there should be read into that sub-clause, in so far as it refers to sponsorship, words such as "if applicable" so that if the case be one not dealt with specifically in sub-cl 104.211(3)(b), then no sponsor at all will be required.

His Honour the primary judge was of the view that sub-cl 104.211(3) should be given its literal meaning without any words being read into it.  In his Honour's view, the sub-clause required there to be a sponsor, meeting the requirements of the paragraph.  If there was no sponsor meeting those requirements, then the criteria for the grant of the visa were not satisfied.  It is from this decision that Ms Huang has appealed.

Professor Pierce, in the fourth edition of his work Statutory Interpretation in Australia cites Lord Merse in Thompson v Goold & Co [1910] AC 409 at 420 as saying:

"It is strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."

Perhaps the phrase "clear necessity" puts the matter too highly, as may be seen from the decision of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151, where the Court read words into a taxing statute, but in circumstances where it was necessary so to do to ensure that the relevant provisions were effective to overcome the particular tax avoidance problem which the legislature had sought to address.

Certainly it can be said that it would be a rare case for words to be read into an Act of Parliament, unless so to do was necessary to bring about an evident Parliamentary purpose.  That is not the case here.  The relevant statutory purpose to be found in the regulation is that an applicant for a preferential family visa must satisfy both of two conditions.  First, the applicant must meet the criterion in either 104.211(2)(a) or 104.211(3)(a), as the case may be, and second, that the applicant must be sponsored.  If the case is not one which permits of sponsorship, then, in my view, the applicant does not meet the criterion and there is no reason to read words into the regulation to excuse an applicant otherwise complying with 104.211(2)(a) or 104.211(3)(a), as the case may be, from having sponsorship.

If a sub-class 104 visa were the only visa available to permit the entry into Australia of a person to look after an infant child, this might give some cause for hesitation in accepting the view taken by the decision-maker and by his Honour the learned primary judge.  But it is not.

Sub-class 103 deals specifically with the case of a parent applying to enter Australia to join, inter alia, a child of that person.  Not only does it deal specifically with that class of case, but it also deals specifically with sponsorship, both where the child is under the age of 18 years as well as where the child is over that age.

Sub-class 103 differs from sub-class 104 in a number of important respects.  The first, as has already been pointed out, is that it deals with the issue of sponsorship specifically in respect of children under, as well as children over, 18 years of age.  Secondly, it permits the grant of a visa only if the applicant satisfies what is known as "the balance of family test".  Put simply, before the visa criteria are satisfied it must appear that there is not a greater number of other children of the applicant overseas in comparison with those in Australia.  If 104 and 103 covered the same ground, at least in respect of children of tender years, the balance of family test in 103 would not need to be satisfied by an applicant seeking a visa under sub-class 104.

There are, additionally, other differences between the criteria required to be satisfied for a sub-class 103 visa as against those required to be satisfied for a sub-class 104 visa.  For example, at the time the present case arose, certain special return criteria dealt with in cl 103.324 differed from the criteria appropriate to be satisfied in applying cl 104.  It was said from the bar table that one reason that the applicant did not apply under cl 103 was that
the criteria were not satisfied by her, a problem which did not arise under reg 104.

At the heart of the applicant's submission lies the argument that Article 103 is apt to cover an application for a visa by a parent wishing to come to Australia to care for an otherwise normal child of tender years unable to care for himself or herself.  That view stems from a decision of Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 where his Honour held that the definition of "special need relative" in the then regulations encompassed the case of an applicant who was the parent of an infant child.  A perusal of the judgment indicates that his Honour did not reach that conclusion without hesitation.  Indeed (at 326) his Honour refers to submissions made by counsel for the Minister that being a child was not itself a disability and that the definition of "special need relative" was inapposite to describe the ordinary relationship between a mother and a healthy child and the ordinary needs of such a child for the care, protection and upbringing of its parents.  His Honour said:

"As the submission was put by Ms Henderson, it seemed to me to have considerable force.  Even now, after I have considered the matter, I still do not regard the words `need for assistance because of death, disability, prolonged illness or other serious circumstances' as bringing readily to mind the need which a young child has for the care and presence of its mother.

However, the words must be considered in the context in which they appear."

I am in complete agreement with his Honour as to the need to consider the context in which the words appear.  That context has, however, changed somewhat from that which existed at the time his Honour decided Chen's case.  First, at the time of Chen's case, the regulations specified no sponsorship requirement.  Secondly, there was no equivalent regulation to cl 104 dealing specifically with parent/child reunion.  There is much now to be said for the view that where cl 104 deals specifically with parent/child reunion, cl 103 should not be construed so as to cover the same ground but rather only those cases which do involve special circumstances: cf Saraswati v The Queen (1991) 172 CLR 1 at 23-24 per McHugh J and David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 69 ALJR 778, per Gummow J at 783-4.

In support of a submission that we should apply Chen in the present case, the appellant relied upon the rule that in reenacting legislation (in this case the definition of "special need relative") Parliament must be taken as having sanctioned or approved the construction placed upon earlier versions of that legislation.  Such a rule must be approached with some caution.  If the definition of "special need relative" had been reenacted without any alteration of context, it would, no doubt, have been appropriate to give the present definition the same meaning as that discussed by
Davies J.  However, that is not the case here.  What happened in 1995 is that the entire regulations to the Migration Act were repealed and new regulations substituted, but in a somewhat different context.  In my view, the circumstances are not such as to give rise to a presumption that the framer of the regulations intended to adopt the interpretation put on the words by Davies J in Chen: cf Williams v The Official Assignee of the Estate of William Dunne (1908) 6 CLR 425 at 441 per Griffith CJ. In any event the rule should not be permitted to prevail over an interpretation otherwise appearing to be correct: cf per Mason ACJ, Wilson and Dawson JJ in Flaherty v Girgis (1987) 71 ALR 1.

In my opinion, the present definition of "special need relative" relevant to sub-class 104 visas, should not be construed so as to include every case involving a child of tender years unable to care for himself or herself.  The words "other serious circumstances" affecting the citizen or resident personally, or a member of his or her family unit, refer to circumstances similar to death, disability or prolonged illness and not to the mere fact that the citizen or resident is of tender years.  It is hardly conceivable that the expression "serious circumstances" should reflect merely the tender age of a person.  In so holding, I express no view as to whether Chen's case was correctly decided on the regulations and in the context then prevailing.
         If the criteria in cl 104 are satisfied, including sponsorship requirements stipulated both for under 18 and over 18 year old children, a parent can obtain a visa to be reunited with and to look after an otherwise healthy child.  Clause 104 is concerned with a case where there is a need for permanent or long term assistance arising out of some serious circumstance which affects an Australian citizen, and in such a case sponsorship will, in my view, be required.  It is true that if an application were made under cl 104 on the basis that an infant child was ill and required long term assistance, cl 104 would result in that application being unsuccessful because the sponsorship criteria could not be satisfied when the child was unmarried and under 18 years.  The policy behind cl 104 is, in my view, to this extent difficult to discern.  It is a matter to which attention should be given when the regulations are reviewed for amendment.

I would accordingly dismiss the appeal with costs.

I certify that this and the
preceding nine (9) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  29 November 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )            No. NG 357 of 1996

ON APPEAL FROM A SINGLE JUDGE OF THE
  FEDERAL COURT OF AUSTRALIA

BETWEEN:SHAN E HUANG

Applicant

AND:MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS  Respondent

CORAM:Jenkinson, Hill & Lehane JJ

PLACE:Sydney

DATE:29 November 1996

REASONS FOR JUDGMENT

LEHANE J:  I have had the advantage of reading, in draft, the judgment prepared by Hill J.  I agree with his Honour's conclusion and the order which he proposes.  I respectfully disagree, however, with one aspect of his Honour's reasoning, that relating to the construction of subcl 104.211(3) of Schedule 2 to the Migration Regulations.

This case illustrates, perhaps better than most, the truism that the English language readily conceals ambiguity behind apparent precision.  The language with which we are immediately concerned is that of para 104.211(3)(b) which, however, can be understood only in the wider context of subcl (3):

An applicant meets the requirements of this subclause if:

(a)the applicant is ... a special need relative ... of a person (in this subclause called "the Australian relative") who is:

(i)an Australian citizen; or

(ii)an Australian permanent resident; or

(iii)an eligible New Zealand citizen; and

(b)the applicant is sponsored:

(i)if the Australian relative has turned 18 - by the Australian relative; or

(ii)by the spouse of the Australian relative, if the spouse:

(A)cohabits with the Australian relative; and

(B)is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and

(C)has turned 18.

The question is whether, in that context, and in the context of some other provisions of the Schedule to which I shall refer, para (b) is ambiguous and, if so, what is its preferable construction.

There are obvious dangers in approaching the question of construction by considering what the paragraph would mean if it said something other than that which in fact it says or if it were expressed in a way other than the way in which it is in fact expressed.  Recognising the danger, however, I think it is instructive to point out that if para (b) did not include subpara (ii), so that it provided:

The applicant is sponsored, if the Australian relative has turned 18, by the Australian relative

there could be little doubt that the paragraph did not limit the class of applicants eligible for visas under subclass 104 to those whose Australian relatives had turned 18.  It would mean, clearly enough, that where the Australian relative had turned 18, sponsorship was required, but not otherwise.  And (though the extreme improbability of this hypothesis may be recognised), if subpara (ii) stood alone, it is unlikely that para (b) would properly be construed as limiting the class of those eligible for the visa to those who had Australian relatives with spouses who met the three prescribed tests.  But if that is right, it is not easy to see why para (b) as it stands, on a literal construction, can mean only that sponsorship is required in all cases, so that the class of applicants is limited to those whose relevant Australian relatives either are aged over 18 or have a spouse who satisfies the requirements prescribed by subpara (ii).  Certainly, with respect, it does not seem to me that it is necessary to read any words, such as "if applicable", into para (b) to construe it as requiring sponsorship only in those particular categories which it describes.  In my view, if the subclause, construed without regard to other aspects of the context which may be relevant, truly has a meaning which can properly be described as its (one and only) literal meaning, it is one which does not require sponsorship except in the particular case as described.

Two other elements of the context, however, seem to me to have some importance.  One is subcl 104.222 which prescribes, as one of the criteria to be satisfied at the time of the decision on an application for a visa, that:

The sponsorship referred to in clause 104.211 has been approved by the Minister and is still in force.

It is, of course, true that that subclause might be taken to proceed on an assumption that "the sponsorship" is required in all cases, so that where in a case such as the present sponsorship meeting one of the tests in para 104.211(3)(b) is not available the applicant cannot satisfy the criteria for the grant of a visa in subclass 104.  Obviously it would be different, and clear, if subcl 104.222 included some such words as "if any" or "if applicable".  It is, however, in my view possible to construe subcl 104.222, without notionally inserting words which are not there, as applying only in a case where there is to be a "sponsorship referred to in clause 104.211".

That view of the matter derives some support, I think, from the specified criteria for certain other classes of visa.  For example, the criteria for a "parent" visa in subclass 103 are expressed in what seems a significantly different way from those of subclass 104.  Subcl 103.212(1) states positively, as one of the criteria:

The applicant is sponsored in accordance with subcl (2) or (3).

Subclauses (2) and (3) then state whose sponsorship will suffice, first in the case of a child who has turned 18 and secondly in the case of a child who has not turned 18.  Subclauses (2) and (3), of course, cover the field of potential applicants so that in any event sponsorship obviously is required for all applications in subclass 103.  But, in addition, subcl (1) states specifically that sponsorship is (sc in all cases) required in
accordance with subcl (2) or (3).  By contrast in subcl 104.211, where the description of the categories of sponsorship does not cover the field of possible applicants, there is no such express criterion.  Similarly, if one turns to subclass 105 - the "concessional family" visa - the rather different drafting of cl 105.21 makes it clear (see particularly subcl 105.212) that in all cases a sponsor is required; and there, as in subclass 103 but not in subclass 104, there will always necessarily be a person who is a possible sponsor.

I respectfully agree with Hill J, for the reasons given by his Honour, that a young child is not, in the absence of other circumstances, under the Regulations as they now stand to be regarded for the purposes of the definition of "special need relative" as having "a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances".  That conclusion leads, in any event, to the dismissal of the appeal.  However, as Hill J points out, it would be odd if on the true construction of subcl 104.211 serious circumstances affecting an Australian citizen or resident aged less than 18 could never justify the grant of a visa in subclass 104 to a relative who was willing and able to provide substantial and continuing assistance to the citizen or resident.  As I have indicated, in my view a construction is open which avoids this result; and what follows if the construction is not adopted sufficiently establishes it, I think, as the construction which is preferable, and correct.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  29 November 1996

Heard:  18 September 1996

Place:  Sydney

Decision:  29 November 1996

Appearances: Mr S J Gagelar and Mr G Grant of counsel instructed by Parish Patience appeared for the applicant.

Mr J S Hilton SC  and Ms C McCallum of counsel instructed by The Australian Government Solicitor appeared for the respondent.