Hunt v Minister for Immigration and Ethnic Affairs

Re: TRACEY ANN HUNT
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. S G34 of 1992
FED No. 173
Number of pages - 15
Administrative Law
(1993) 113 ALR 509
(1993) 41 FCR 380
(1993) 30 ALD 837 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Administrative Law - Migration Act 1958 - "appeal" on question of law - interpretation of Regs. 9, 140 of the Migration Regulations - meaning of "overseas near relative", "remaining relative".

Migration Act 1958

Migration Regulations

HEARING

ADELAIDE, 22 March 1993

#DATE 25:3:1993

Counsel and Solicitors for the Applicant: Mr Collett instructed by

Johnston Withers.

Counsel and Solicitors for the Respondent: Miss Singh instructed by

the Australian Government Solicitor.

ORDER

(1) The title of the respondent be amended to "The Minister for

Immigration and Ethnic Affairs".

(2) The application is dismissed.

(3) There be no order as to costs.

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

JUDGE1

GUMMOW J. This is an "appeal" on questions of law pursuant to s. 138 of the Migration Act 1958 ("the Act") against a decision of the Immigration Review Tribunal ("the Tribunal"). The decision was made on 25 September 1992. Although called in the Act an appeal, it is important to appreciate that in truth this is a proceeding in the original jurisdiction of the Court. This proceeding is the first engagement in the dispute between the applicant and the respondent ("the Minister") of the judicial power of the Commonwealth; see Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657.

The dispute as it is entertained in this Court is not a hearing upon the merits of the case. The Court is given the task of ruling only upon questions of law. The Court cannot embark upon a consideration of the merits.
On 25 September 1992 the Tribunal affirmed the decision of the primary decision-maker that the applicant, Mrs Hunt, be refused entry permits in classes 1 and 12 of the Migration Regulations ("the Regulations"). Class 1 deals with permanent residency, and class 12 with external eligibility. The refusals were of a family EETEP 822 and a compassionate PEPAE 806.
The process in this Court was framed as an application under the Administrative Decisions (Judicial Review) Act 1977, but as I have indicated the law conferring jurisdiction is s. 138 of the Act. The style of the respondent is inappropriate and he should be identified simply as the Minister for Immigration and Ethnic Affairs. I so order. The facts are not in dispute. The presentation of counsel's oral argument has been assisted by the provision of written outlines of argument and of supporting material.
The central issue of law is whether the circumstance that Mrs Hunt usually resides in the same country, namely the United Kingdom, as her biological father who is, in the language of reg. 9 of the Regulations, an "overseas near relative", precludes her as a matter of law from answering the description of a "remaining relative" within the meaning of reg. 9.
In order to appreciate how this issue arises it is necessary to bear in mind the salient facts. These are as follows. Mrs Hunt, the applicant, was born on 3 February 1963. She is a citizen of the United Kingdom and the United Kingdom is her usual place of residence. On 21 March 1959, Mrs Hunt's mother, Josephine Monica Mary Woolford, married Harold Philip Mitchell in the United Kingdom. Mr Mitchell is the biological father of the applicant, Mrs Hunt. At all material times he has resided and he continues to reside in the United Kingdom. In addition to the applicant there were other children of the marriage; Elaine, born in 1960, and Andrew in 1965.
In May 1968 Mrs Hunt's mother separated from Mr Mitchell. They were divorced on 24 June 1969. In 1971, Mrs Hunt's mother met Mr J.A. Kerry. They commenced to live together in May 1972. Since that time Mr Kerry has been regarded by the applicant, Mrs Hunt, as her father. She has had no real contact with her biological father since she was some 7 years of age. Mr Kerry cared for and supported Mrs Hunt as a parent through her school days and advised, guided and supported her. On 25 February 1976, Mrs Hunt's mother married Mr Kerry in the United Kingdom. Eight years later, on 5 May 1984, Mrs Hunt married Mr Kevin Hunt in the United Kingdom.
In February 1986, Mrs Hunt's mother, together with Mr Kerry and Mrs Hunt's brother, Andrew, migrated to Australia. Mr Kerry is presently a musician with the Australian Army Band. Had Mrs Hunt not married Mr Hunt in 1984 she would have applied to migrate to Australia in 1986 with, as I have indicated, her mother, stepfather and brother.
For 6 months from October 1986 and for 2 months from September 1988 Mrs Hunt visited her mother and stepfather in Australia. On 3 December 1989 she returned to Australia with her husband, Mr Hunt, on a 6 months entry visa. She was granted a temporary entry permit or visitor's visa. On 18 March 1990 Mrs Hunt's daughter, Kerriann Bernice Hunt, was born at Elizabeth in the State of South Australia. The infant has been cared for and has a deep relationship with Mrs Hunt's mother and stepfather and both of Mrs Hunt's siblings, all of whom now live in South Australia. Mrs Hunt's sister, Elaine, is married and has four children.
On 22 May 1990 Mrs Hunt's husband returned to live permanently in the United Kingdom. From that time Mr Kerry has had total financial responsibility for Mrs Hunt and for her infant daughter. On 29 May 1990 Mrs Hunt made application for a PEPAE class 806 on the basis of strong compassionate grounds. She was sponsored by her mother. The application was refused on 6 September 1990 and on 4 October 1990 Mrs Hunt appealed to the Migration Internal Review Office.
That was unsuccessful. On 9 November 1990 Mrs Hunt filed an application for a review of the decision of 6 September 1990 with the Tribunal. On 4 July 1991 her application was adjourned by the Tribunal pursuant to sub-s. 121 (2) of the Act. This was done in response to the information from Mrs Hunt that in the United Kingdom a divorce was pending between herself and her husband. The purpose of the adjournment was enable her to make a fresh application. This was done on 20 August 1991.
The decree nisi for divorce was issued by an English court and became absolute on 31 January 1992. On 17 March of that year the fresh application by Mrs Hunt for a family EETEP was refused and she appealed against that decision. As I have stated on 25 September 1992 the Tribunal affirmed the decision made by the primary decision maker that the applicant be refused a family EETEP, class 822, and/or compassionate PEPA, class 806. The proceeding in this Court was instituted on 2 November 1992.
The evidence is that if Mrs Hunt has to return to the United Kingdom she will have no financial or family support for herself or her daughter. There will be an adverse effect on the infant daughter. There also will be an adverse effect on the health of Mrs Hunt's mother if her daughter has to return to the United Kingdom.
Now, as I have indicated, in South Australia, Mrs Hunt has the following members of her family: her mother, step-father, sister and brother-in-law with four children, and her brother Andrew. In a real sense, the applicant is the only remaining member of her family group who does not usually reside in this country. But the question for the Court is how the relevant provisions of the Act and the Regulations bear upon that situation.
The salient provisions are as follows. In sub-s. 4 (1) of the Act a "permanent entry permit" is defined as meaning an entry permit that is not subject to any limitation as to the time the holder is authorised to remain in Australia. Sub-section 33 (2) provides for the making of regulations which may provide for different classes of entry permits and, subject to qualifications not presently material, the regulations may provide that a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class. One comes then to para. (f) of sub-s. 47 (1):
"47 (1) A permanent entry permit shall not be granted to a

non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen:

. . .

(f) he or she is the holder of a valid temporary entry permit and there are strong compassionate grounds for the grant of a permanent entry permit to him or her."

Section 34 is important for this case. Sub-sections (3) and (4) are as follows:

"34 (3) Where it appears to the Minister that the applicant

is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.

(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

I turn then to the Regulations. Regulation 34A was referred to several times in argument. Sub-regulation (2) thereof in effect requires satisfaction of criteria that are applicable at the time at which the decision in relation to the application is made.

Regulation 21 says that for the purposes of sub-s. 33 (2) of the Act, to which I referred, the classes of entry permits are specified in Schedule 3. One then turns to items 30 and 91 in Schedule 3. In particular, item 30 in dealing with entry permits on compassionate grounds with family and other close ties, refers to reg. 140 and to other matters set out in Schedule 1 and identified by the letters D, E and H1. This case has been concerned primarily with reg. 140 as introduced through the medium of Schedule 3.
The central provision of reg. 140 is in para. (a) of sub-reg. (2). This states:
"140 (2) In this regulation, a reference to strong

compassionate grounds is a reference to any of the following grounds:

(a) the applicant is:

(i) in relation to a person who is an Australian citizen resident in Australia or an Australian permanent resident:

(A) an aged dependent relative; or

(B) an orphan relative; or

(C) a remaining relative; or

(D) a special need relative . . ."

Sub-regulation (3) states that:

(3) Sub-regulation (2) does not apply:

(a) to a person who is an aged dependent relative or a remaining relative - unless the Australian citizen or Australian permanent resident has been lawfully a permanent resident of Australia for not less than 2 years immediately preceding the day of the relevant application and nominates the person; or

(b) to a person who is an orphan relative or special need relative - unless the person is nominated by the Australian citizen or Australian permanent resident."

Counsel for the respondent referred to categories A, B, C and D in para. (a) of sub-reg. 140 (2) in the following way. She said that an analysis of them shows that the term "a remaining relative" was intended to define a category of relations of Australian citizens or permanent residents who ought to be given preference in becoming permanent residents of this country. She points out that the term appears in company with the words "aged dependent relative", "orphan relative" and "special need relative" and that each of these is restricted to relatives who themselves have some special need or dependency, or who are prepared to assist an Australian relative having some special need. Accordingly, counsel submits, preference is given under these provisions to spouses, children and applicants falling within the particular categories A, B, C and D.
There are definitions in sub-reg. 2 (1) of "aged dependent relative", "orphan relative" and "special need relative". The term "remaining relative" is one whose meaning is spelled out in reg. 9. This provides as follows:
"9 (1) An applicant for a visa or entry permit is a remaining

relative for the purposes of these regulations if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) a step-relative, within 1 of those degrees of relationship; of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; and

(c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2).

(2) An applicant is disqualified if:

(a) the applicant or the spouse (if any) of the applicant:

(i) usually resides in the same country, not being Australia, as an overseas near relative; or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(c) the applicant has a child who;

(i) has not turned 18;

(ii) has been adopted by an Australian citizen or an Australian permanent resident (in this paragraph called "the adoptive parent") while overseas; but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

(3) In this regulation "overseas near relative" means a person who is:

(a) a parent, brother, sister or non-dependent child; or

(b) a step-relative within 1 of those degrees of relationship;

of the applicant or of the spouse (if any) of the applicant but is not a relative of the kind referred to in subregulation 1."

The term "relative" is defined in sub-reg. 2 (1) in terms which include step-relatives. The term "parent" also receives attention in this sub-regulation. It provides that "parent" includes an adoptive parent and a step-parent. The expression "adoptive parent" in turn is a reference to the provisions of reg. 2A dealing with the adoptive relationship. The term "step-parent" is not further defined.

There is within reg. 9 itself an important definition for the present case. In sub-reg. (3), which I have just read out, the phrase "overseas near relative" is defined so as to include not only parents, siblings and non-dependent children but also a step-relative, such as a step-father, who is not an Australian citizen or permanent resident, and who in either case is not usually resident in this country.
I was referred to various authorities concerning the canons of statutory construction. The applicant relied particularly upon passages in Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation (1981) 147 CLR 297 at 304-5 (Gibbs C.J.), 310 (Stephen J.) and 319-21 (Mason, Wilson JJ.). A more recent illustration of the application of these canons to difficult legislative provisions is provided by Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 at 43-6 (Mason C.J.), and 47 (Brennan J.). In Cooper Brookes at 320, Mason and Wilson JJ. say:

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. The rules, as D.C. Pearce says in Statutory Interpretation p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law."

In the instant case, it should be noted that on the submissions by both sides as to construction of the relevant regulations, there still will be some odd results. For example, if the overseas parent in question ordinarily resides in a different but adjacent foreign country to the applicant child, for example, one in the United Kingdom, the other in Ireland; one in Austria, the other in Germany; one in France, the other in Belgium, the applicant will not be disqualified under reg. 9 (2) (a) (i). There will be a disqualification if they both live in one rather than two of these adjacent countries.
Counsel for the applicant has stressed as a basic proposition that reg. 140, sub-reg. 140 (2) is designed to give specific content to the concept "strong compassionate grounds" and that the further definition in reg. 9 of "remaining relative" should be so construed as to produce results in any given case which are consistent with that notion of strong compassionate grounds.
One difficulty with such a wide proposition is that the range of factual situations is so various that it is unlikely that all hard or difficult cases could be accommodated by it. Counsel for the applicant went on to submit that: (1) reg. 34A requires the relevant criteria to be satisfied "as applicable at that time"; here this was May 1990; (2) at that time the state of affairs between Mrs Hunt and her family was such that her step father filled the role of father to the exclusion of her biological father; (3) if it matters, this has been the case for more than 20 years; (4) for the purposes of the disqualifying provisions of sub-reg. 9 (2), the only male parent of Mrs Hunt at the relevant time was her step-father and he did not usually reside in the same country as his step-daughter; he resided in this country, she in the United Kingdom; (5) therefore, Mrs Hunt was not disqualified by the operation of sub-para. (a) (i) of sub-reg. 9 (2).
These submissions in effect looked to the substance of family relationships rather than purely to their legal form. A difficulty is that sub-reg. 9 (2) is so framed as to look both to form, in sub-para. (a) (i), and also to substance, in sub-para. (a) (ii), and it does so disjunctively, so that the application of either sub-paragraph produces disqualification.
The respondent, whose submissions I accept, contends as follows: (i) as a matter of ordinary English with reference, for example, to the second edition of the Oxford English Dictionary, vol. 9, a parent is, "a person who has begotten or born a child" and a "step relative", the term used in sub-reg. 9 (3) designates the degree of affinity resulting from the remarriage of a widowed or divorced parent; (ii) the inclusion in the definition of "parent" in reg. 2 of adoptive and step parents expands the class of parents, but not to the exclusion of biological parents, as would be the effect for this case of the submissions for the applicant; (iii) in various places in the Regulations criteria are used which depend not so much upon the existence of a formal link or status in law as upon the actual condition of a relationship between two people; (iv) examples of proposition (iii), some of which may have an impact upon other sub-paras of reg. 140 are: reg. 2A dealing with adoptions, and reg. 3A dealing with de facto spouses. See also reg. 147 (2) (b) which applies for the purposes of ss. 30 and 41 of the Act; (v) sub-para. (a) (ii) of sub-reg. 9 (2) is such an example of proposition (iii) and is directly in point; as I have indicated, sub-para. (a) (ii) is used disjunctively with sub-para. (a) (i) and either is sufficient to disqualify; (vi) the current state of the social and emotional ties between the biological parent and child is not to the point applying sub-para. (a) (i); the appropriate head for considerations of that character, if any, is sub-para. (a) (ii); (vii) the phrase "overseas near relative" in sub-reg. 9 (3) expressly brings in a step-relative within the same degree of relationship as a parent, but that does not assist the applicant here; (viii) para. (a) of reg. 9 (2) operates on the footing that there may be more than one male parent answering the description "overseas near relative"; it is sufficient under sub-para. (a) (i) to disqualify the applicant, that the applicant usually resides in the same country as that male parent, being the biological father of the applicant, even though the applicant has had no contact with him during a reasonable time before the application; it is no answer that the applicant does not usually reside in the same country, here, Australia, as her step-father.

As I have said, these submissions should be accepted and the application should be dismissed.
This case illustrates a fundamental problem in the framing of the legislation and the delegated legislation. It is that the greater the specificity of the fixed criteria, the greater the chance that without the existence of a "back-stop" discretion by which the law may be tempered by equity, hard cases will fall short of compliance with the letter of the law.
I order as follows: (1) the style of the respondent be amended to read "The Minister for Immigration and Ethnic Affairs"; (2) the application be dismissed.
This is the first occasion upon which these points of law in the interpretation of the Act and Regulations have been before the Federal Court. The issues of interpretation are of general public importance in the administration of the migration law. This, therefore, has many characteristics of a test case. In the circumstances, I make no order as to costs.

[1993] FCA 173

25 MARCH 1993