Huynh v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUYNH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 180

MIGRATION – Appeal from Migration Review Tribunal in relation to applications for Partner (Provisional) Class UF Visas by three children of successful visa applicant, their mother – “dependence” as defined in the Regulations – requirement of real or necessary dependence – no jurisdictional error.

Migration Act 1958 (Cth), s.483
Judiciary Act 1903 (Cth) s.39B
Migration Regulations 1994, rr.1.03, 1.05A

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v Pires (1988) 160 ALR 97
Xie v Minister for Immigration & Multicultural Affairs [2000] FCA 230
Lobo & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93

1^st Named Applicant:

CHI CUONG HUYNH

2^nd Named Applicant:

MY VAN HUYNH

3^rd Named Applicant:

CHI DUNG HUYNH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOR

File Number:

ADG 163 of 2005

Judgment of:

Lindsay FM

Hearing date:

30 September 2005

Delivered at:

Adelaide

Delivered on:

10February 2006

REPRESENTATION

Counsel for the Applicant:

Mr S Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondent:

Ms S Maharaj QC

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed on 1 July 2005 and (as amended on 21 September 2005) is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 163 of 2005

CHI CUONG HUYNH

MY VAN HUYNH

CHI DUNG HUYNH

Applicants

And

MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

Respondents

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Migration Review Tribunal ("the Tribunal") handed down on 7 June 2005. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant any of the applicants a Partner (Provisional) (Class UF) visa.
In accordance with the decision of SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to the proceedings.
The jurisdiction of this Court under s.483A is the same jurisdiction as the Federal Court in relation to a matter arising under this Act, that jurisdiction being the Federal Court's judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth), subject to limitations under Part 8 of the Migration Act. Counsel for both parties presented their submissions to me on the basis that those limitations, as interpreted in the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, have the effect that the applicants must show a jurisdictional error in the decision of the Tribunal before they can obtain the relief they seek.

Factual background

On 21 December 2003, the Minister granted the primary visa applicant, Mrs Anh Ly (the mother of the applicants in these proceedings) and her fourth child subclass 309 visas. Mrs Ly entered Australia as the holder of a subclass 309 visa on 4 February 2004. The appellants are her three other children.
The Minister's delegate, by letter dated 31 December 2003, notified the applicants of the decision to refuse to grant them subclass 309 visas.
An application was filed with the Tribunal.
On 7 June 2005, the Tribunal affirmed the decision of the Minister's delegate.
The applicants reside in Vietnam. Their circumstances as they relate to their occupations and domestic arrangements are outlined in some detail in the decision of the Tribunal.
At the time that the visa application was lodged in August of 1999, they were all over 18 years.
The applicants were represented by Mr Ower of counsel and the respondents by Ms Maharaj QC.
The determination of this application turns upon the interpretation of regulation 1.05A of the Migration Act Regulations.
That regulation relevantly provides:-
(1) Subject to subregulation (2), a person (the "first person") is dependent upon 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 first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
The definition of dependency in the Migration Regulations was amended on 1 November 1999. Prior to that time the regulation relevantly provided:-
Dependent in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support.
It is agreed that the amended regulation is to be applied to the circumstances of these applications.
It will be noted that the changes to the definition are, firstly, the substitution of the word reliant for the word dependent and, secondly, the jettisoning of reference to psychological or physical support. The other amendments are to include the reference to the reliance being greater than the reliance on any other person and to create the discrete category of reliance arising from incapacity for work because of loss or bodily or mental function.
The old regulation was the subject of discussion by Mansfield J in Minister for Immigration & Multicultural Affairs v Pires (1998) 90 FCR 214. That decision was the subject of specific discussion by the Tribunal.
At page 220 of the judgment, his Honour says:-
I have come to the conclusion that the expression "wholly or substantially dependent" in the relevant definition was intended to convey that the visa applicant has a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support.
His Honour then explains his reasons for taking that view.
That decision was itself the subject of discussion by Weinberg J in Xie v Minister for Immigration & Multicultural Affairs [2000] FCA 230. That was a case involving the alleged dependence of a Chinese national who was a student upon his father who was resident in Australia. The student had enrolled in a second course of study.
At paragraph 43 of the judgment his Honour says:-
If I were of the view that (the Tribunal) had rejected the applicant's claim for a subclass 450 visa automatically, simply because he had enrolled in a second course of study, I would not hesitate to set aside her decision. That would be to elevate a policy which is itself difficult to comprehend into an inflexible and binding vehicle governing the interpretation of regulation 1.03. However, I do not interpret her reasons for decision in that way. In my view, her approach was neither so simplistic, nor so rigid. The true basis of her decision was that the applicant had made a free and informed choice to remain financially dependent upon his father. That finding of choice led her to conclude that the applicant had failed to demonstrate the necessity implicit in dependence, and led her, therefore, to reject his claim.
Earlier in that judgment, his Honour had referred to counsel's characterisation of Mansfield J's judgment in Pires as exhibiting the principle that "choice" is the antithesis of "dependence".
I do not propose to set out in detail the agreed circumstances of the applicants at the relevant times. I note firstly, that they were all over the age of 18 years. The first visa applicant resided at his grandmother's home and was studying at Ho Chi Minh City Open University. At the time of the decision of the delegate of the minister, the first visa applicant was studying a course in English but had undertaken other courses since the application for the visa had been made. He had not been awarded a university bachelor degree. He was not in employment but acknowledged that manual labour was available to him.
The second visa applicant was studying at a high school for a diploma at the time of the application for the visa. In 2001 she was awarded a certificate relating to food processing from the college she had attended. In 2002, she commenced training with a tailor and that remained the position at the time the matter was before the Tribunal. She also resided with her grandmother.
The third visa applicant had undertaken a course of study at an education centre in Ho Chi Minh City in 2000/2001. In 2002 he undertook training with an Automobile Repair Enterprise. He resided with his aunt. He undertook a course in automobile repairs at a vocational training centre in Ho Chi Minh City at the beginning of 2004 and completed it in 2005. He subsequently undertook another course of study in automobile repairs. At the time the matter was before the Tribunal, he had moved to the home of his grandmother.
All of the applicants maintain that they were dependent upon their mother for their financial support in these circumstances.
The Tribunal's decision includes a detailed discussion of the policy guidance material provided by the Department and it is clear that the Tribunal regarded that information, particularly as it related to the dependency of students, as significant.
The critical part of the Tribunal's finding is to be found at paragraph 52:-
Although regulations 1.03 ("dependent child") and 1.05A ("dependent") do not specify that the dependency must be out of necessity and not through choice, the implication of the definitions is that dependence through choice is not generally acceptable. In this regard, the Tribunal notes that the policy indicates that generally a person over the age of 18 is not considered to be dependent unless they are incapacitated for work or have chosen to study full‑time for their first undergraduate degree. The Tribunal cannot find any cogent reason for departing from the Department's policy in this case. The evidence indicates that as at May 2004, being 12 months previous to the time of decision, none of the visa applicants were incapacitated for work or had undertaken full‑time study for an undergraduate graduate degree. Where the person claiming dependence has chosen not ever to work, even though work would be available to him or her in some menial form in order to provide for the necessities of life, but that person has perpetuated training or further studies, was not, in the Tribunal's view, contemplated by the Regulations. The Tribunal is of the view that the passages in Pires and Xie referred to above, although relating to the pre‑1 November 1999 definition of dependence, are equally applicable to the current definition of dependent in relation to the issue of financial necessity.
The applicant complains that the Tribunal fell into jurisdictional error in that it did not ask itself the appropriate question, which was whether or not the applicants were wholly or substantially reliant, not whether they were necessarily reliant on their mother. In effect the submission is that the right question was not asked and the wrong question was asked in that regard.
Secondly, a complaint is made that inappropriate regard was had to policy as expressed in the Departmental material and substantial regard was had to it by the Tribunal in lieu of the Tribunal adhering to the actual words of the Regulations.
Certainly the passage from the Tribunal's reasons for decision set out above includes the unfortunate reference to the Tribunal being unable to find any “cogent reason for departing” from the Department's policy. Looked at in isolation, that sentence is suggestive of the Tribunal forming a view that its task was to look for material which would justify a departure from Departmental policy, as if a presumption in favour of the utilisation of the Departmental strictures were the first step in the exercise.
The need for the Tribunal to bear steadfastly in mind that reliance on policy guidelines must in all circumstances give way to application of the text of the relevant legislation and Regulations is discussed in Lobo and Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93. I will return to this aspect of the matter in a moment.
I am unable, whether on account of any rules of statutory interpretation or otherwise, to apprehend that the changes to the Regulations lead to the conclusion that Mansfield J's analysis of dependency as denoting necessity in the context of these applications should be regarded as no longer relevant or appropriate.
Nothing in my view turns on the interpolation of the word "reliance". None of the changes that have been effected to the Regulations require the Tribunal to look only to the practical reality of whether or not a state of dependency exists and to overlook or to put to one side or to abandon any consideration as to whether the dependence is something that arises out of a circumstance of need. All of the matters referred to by Mansfield J as leading to the conclusion that dependency must be evaluated in the context of necessity remain sound and applicable notwithstanding the change to the text of the Regulations.
To hold otherwise would be to encourage the artificial creation of circumstances of dependency by volition. That cannot have been the intention of the Regulations.
Properly understood, I think the Tribunal in referring to the Departmental guidelines was indicating that the policy guidelines were consonant with this analysis. True it is that the Tribunal makes specific reference to these guidelines providing that dependency in relation to students can only last for the duration of the first undergraduate degree involving full‑time study. There is no reference to such a specific test in the Regulations. However in my view, and against the background of all the Tribunal says, the Tribunal is doing no more than indicating that in the circumstances of this particular case, the Departmental guidelines are an expression, and a correct expression, of a set of circumstances which bear out the need to look to matters indicating that the dependency is real and not constructed.
I see no material difference in the use of the word "dependent" and "reliant" in the two versions of the regulations.
The material before the Tribunal in my view led inexorably to the conclusion that the circumstances in which the applicants find themselves are circumstances that are of their own making. It would be placing an unwarranted strain on the definition of either "dependency" or "reliance" to find in the circumstances described by the Tribunal that the relationship of the three students to their mother could be characterised as a relationship of dependency. It might be better described as a relationship of assumed or ostensible dependency.
In these circumstances, I do not consider that the Tribunal addressed itself to the wrong question or failed to ask the right question. The test applied by the Tribunal was always that of dependency as that expression has been interpreted by Federal Court authority. I am unable to identify any jurisdictional error and the application should be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:

Date:

[2006] FMCA 180

10 February 2006