Ige v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1007
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ige v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1007
File number(s): SYG 2119 of 2019 Judgment of: JUDGE LAING Date of judgment: 9 November 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 802.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) s 48
Migration Regulations 1994 (Cth) rr 1.03, 1.05A, Sch 2 cl 802.211, 802.212, 802.215
Cases cited: Ige v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1008
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 23 October 2023 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Dobbie and Devine Immigration Lawyers Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: MinterEllison Second Respondent Submitting appearance, save as to costs ORDERS
SYG 2119 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OLUWASEYITAN OLUWANIMILO IGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Child (Residence) (Class BT) visa (Child Residence Visa). This matter is related to another matter in which judgment is to be delivered today, concerning the applicant’s brother: Ige v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1008. The matters were heard concurrently and there is some overlap between the factual circumstances and decisions in both matters.
BACKGROUND
The applicant was born in Nigeria. He entered Australia in 2014 as the holder of a Visitor Business Stream (Subclass 600) visa with his mother and his brother. The applicant’s mother made an application for a further substantive visa onshore in 2014, in which the applicant and his brother were recorded as dependent secondary visa applicants. That visa application was subsequently refused.
In 2017, the applicant applied for a Child Residence Visa. The applicant was sponsored for the visa by his father (sponsor). His brother made a similar visa application.
On 21 September 2018, the Delegate refused the applicant’s application.
The applicant applied to the Tribunal on 12 October 2018. He attended a combined hearing before the Tribunal with his brother on 10 July 2019.
On 17 July 2019, the Tribunal affirmed the Delegate’s decision in the applicant’s matter.
RELEVANT LAW
Section 48 of the Migration Act 1958 (Cth) (Act) relevantly operated to preclude a person who did not hold a substantive visa, but had a relevant visa refused since their last entry to Australia, from applying for other visas in Australia except for those within a prescribed visa class. The Child Residence Visa was a prescribed visa class.
Clauses 802.211 and 802.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) relevantly required the following criteria to be met:
802.21—Criteria to be satisfied at time of application
802.211
If the applicant is a person to whom section 48 of the Act applies, the applicant:
(a)has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(b)since last applying for a substantive visa, has become a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen.
802.212
(1) The applicant:
(a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25.
(1A)If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.
(2)Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
Clause 802.215 relevantly provided:
802.215
The applicant is: …
(b) sponsored by a person who:
(i) has turned 18;
(ii)is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(iii) is:
(A)the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a); or
(B)the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a).
The following definitions in r 1.03 of the Regulations were relevant:
1.03 Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b) a person who is not the child of the parent but:
(i)who is the child of the parent’s former spouse or former de facto partner; and
(ii) who has not turned 18; and
(iii) in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
The term “dependent” was defined in r 1.05A of the Regulations as follows:
1.05A Dependent
(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 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 TRIBUNAL’S DECISION
The Tribunal observed that the issue before it was whether the applicant had become a dependent child of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen since last applying for a substantive visa whilst in Australia: cl 802.211(b) of Schedule 2 to the Regulations (at [7]). The Tribunal observed that this criterion applied, as the applicant was a person to whom s 48 of the Act applied due to his previous inclusion as a dependent in a substantive visa application (at [11]-[13]).
The Tribunal summarised evidence before it at [17]- [25], including the sponsor’s evidence that he had been supporting the applicant and his brother financially and emotionally since they came into his care in April 2017 (at [18]). The Tribunal reasoned as follows at [21]-[25]:
21.The Tribunal told the applicant and sponsor that it must consider whether the applicant has become a dependent child of the sponsor since last applying for a substantive visa.
22.The applicant told the Tribunal the following: Prior to the applicant coming to Australia he lived with his mother and his brother in Nigeria. During that time the sponsor paid for his food, clothing, accommodation and schooling. Between 2008 and 2013 the sponsor visited him in Nigeria once or twice and called him. Since coming to Australia the sponsor has provided for him financially. When he lived in Campsie and Ashfield with his mother, the sponsor paid child support and also gave him additional money. After his mother’s friend dropped him at the sponsor’s home, he lived with the sponsor and his wife and children for a short time.
23.The sponsor told the Tribunal the following: prior to coming to Australia he lived with the applicant’s mother for a year. He entered Australia in 2000. He married his wife in 2003. In 2003 the applicant’s mother came to Australia and stayed for a couple of weeks. He met with the applicant’s mother and this resulted in the applicant being born in 2004. He sent money to the applicant’s mother and to his parents to support the applicant and this provided for the applicant’s food, clothing, accommodation and schooling. From 2005 to 2010 he lived in New Zealand with his wife. He has been supporting the applicant financially in Australia since the Child Support Agency contacted him. About two months after the applicant’s mother dropped the applicant at the sponsor’s home the applicant went to live with the sponsor’s friend and continues to live with him. The sponsor pays for the applicant’s, food, clothing and schooling. He stated that he made some wrong decisions in that he didn’t disclose his relationship with the applicant’s biological mother or the applicant when applying for his partner visa. He regrets not including the applicant in that application. He said that his wife didn’t know about the applicant until they came to Australia. This placed strain on his relationship with his wife and they have been through counselling and remain together.
24.The sponsor’s wife told the Tribunal the following: she did not know that the sponsor had other children. When she discovered that he had other children she was shocked. Her marriage with the sponsor has been through a difficult time but they have come through that time. She shared her concern for the applicant and the emotionally and psychologically demanding time he has been through. She considers the applicant to be part of her family and he has no one else other than the sponsor and his family.
25.The applicant was born on [a date]. He is under 18 years old. By law he is deemed to be a dependent child of the sponsor until 2022. Therefore, on 27 June 2014, when he applied for the [earlier substantive] visa, the applicant was deemed to be a dependent child of the sponsor, who at that time was an Australian citizen. On the evidence before the Tribunal the applicant continued to be a dependent of the sponsor when the current visa application was lodged on 14 September 2017. On that basis the Tribunal is not satisfied that, that since last applying for a substantive visa, the applicant has become a dependent child of an Australian citizen or the holder of a permanent visa or an eligible New Zealand citizen. Therefore the applicant does not satisfy cl.802.211(b) of Schedule 2 to the Regulations.
Having regard to the above, the Tribunal concluded that the applicant could not meet the criteria for the visa and affirmed the Delegate’s decision (at [26]-[28]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 14 August 2019. An amended application was filed on 26 July 2023 containing the following grounds:
1.The Second Respondent made a jurisdictional error by misconstruing or misapplying cl 802.211 in Sch 2 to, when read with reg 1.03 and reg 1.05A of, the Migration Regulations 1994 (Cth).
(i)The Tribunal at paragraph 25 of its decision proceeded on the basis that the sole question was whether the Applicant's sponsor was the Australian citizen for the purposes of cl 802.211(b)(i);
(ii)The Tribunal thus impliedly interpreted cl 802.211(b)(i) as though the Australian citizen to which it referred was confined to the Applicant's sponsor under cl 802.215;
(iii)The Tribunal's construction was erroneous as cl 802.211(b)(i) was, unlike cl 802.212(a) which is expressly mentioned in cl 802.215(b)(iii)(A), not restricted to the Applicant's sponsor and extends to any other Australian citizen;
(iv)In the alternative, the Tribunal failed to apply its mind to the question the legislation prescribes, so far as cl 802.211(b)(i) extends beyond the Applicant's sponsor: SZSZQ v Minister for Immigration [2018] FCA 403 at [69];
(v)The Tribunal's error was material as there was another potentially relevant Australian citizen, being the wife of the Applicant's sponsor;
(vi)The Tribunal, upon remittal, could realistically conclude that the Applicant was the dependent child of the wife of the Applicant's sponsor for the purposes of cl 802.211(b)(i) on the basis that the Applicant became her stepchild after the Applicant applied for the [earlier substantive] visa on 27 June 2014;
(vii)In particular, it was realistically possible that the Tribunal could conclude that the Applicant only became the step-child of the wife of the Applicant's sponsor when she became aware of the Applicant's existence under reg 1.03, on the basis that a person could only be the step-child of another person for the purposes of reg 1.03 when the other person was aware of that fact: Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523.
There is considerable overlap between the ground relied upon by the applicant in this matter, and certain matters relied upon in his brother’s case. There is therefore some overlap in the decisions in both matters.
In this case, as in the brother’s, the Tribunal’s reasons only assessed the sponsor under cl 802.211(b)(i). However, in the present case the applicant was under 18 at all relevant times. The applicant therefore accepted that he had not become a dependent child of the sponsor since he had previously been included in an application for a substantive visa.
The applicant nonetheless submitted that the Tribunal misconstrued or misapplied cl 802.211, by assuming that the only Australian citizen relevant for consideration under that provision was the applicant’s sponsor. This, it was submitted, involved construing cl 802.211(b)(i) as if the Australian citizen to which it referred needed to be the same person as the Australian citizen sponsoring the applicant under cl 802.215(b). The applicant submitted that no such limitation existed in cl 802.211(b)(i). It was submitted that the Tribunal therefore erred in not applying its mind to the statutory question, being whether there was an Australian citizen, including but not limited to the sponsor under cl 802.215(b), in relation to whom the applicant had become a dependent child after his last application for a substantive visa.
The applicant contended that this error was material, as cl 802.211(b)(i) was potentially capable of being met by the sponsor’s wife. The applicant submitted that it was possible that r 1.03 of the Regulations, in referring to the parent of the step-child, was not describing a parent who is unaware of the existence of the step-child. This was said to be consistent with the reasoning in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 (Kim), which referred (at [37]) in its construction of s 48 of the Act to the desirability of a person having knowledge of events relevant to the operation of the provision rather than unknowingly bearing their consequences. As there was evidence that the sponsor’s wife only found out about the applicant’s existence after his arrival in Australia (which may have post-dated his previous substantive visa application), it was submitted that cl 802.211(b)(i) might therefore have been satisfied by reference to the sponsor’s wife.
I accept the Minister’s submission that there are at least two reasons why the applicant’s arguments in this regard are unable to succeed.
Firstly, this was not the manner in which the applicant advanced his case before the Tribunal. The applicant’s case was based upon his dependency upon his sponsor. This explains why the Tribunal only assessed the sponsor in relation to cl 802.211(b)(i) which does not, therefore, demonstrate that the Tribunal took any closed approach to the meaning of cl 802.211. The applicant did not claim that he was able to meet cl 802.211(b)(i) by reference to the sponsor’s spouse and the applicant has not established, by reference to the materials, that such a claim clearly arose. In the absence of such a claim, it is difficult for the applicant to establish the alleged misconstruction by the Tribunal on the basis that the Tribunal did not deal with such a claim.
Secondly, on the materials, the applicant was unable to satisfy cl 802.211(b)(i) on the basis of his relationship with his sponsor’s spouse. The definition of “step-child” is set out above. That definition, on its terms, was satisfied before and after the applicant’s last substantive visa application was made. This was in circumstances where the relevant marriage occurred in 2003, before the applicant was born. The result was that the applicant could not have “become” the dependent child of the sponsor’s spouse after his last substantive visa application.
The applicant sought to overcome this difficulty by suggesting that the definition of “dependent child” implied knowledge by the step-parent of the existence of the step-child. However, I accept the Minister’s submission that this construction is not supported by the text of the regulation. All that was relevantly required according to the definition in r 1.03 of “step-child” was that the sponsor’s wife be the sponsor’s “spouse or de facto partner”. The definition of “dependent child” was met by the applicant being the spouse’s step-child who had not turned 18.
Although I accept that knowledge played a more significant role in Kim, that case concerned a different legislative provision and context. The question in that case was whether a minor, on whose behalf a visa application had been made, had relevantly “applied” for a visa within the meaning of s 48 and should therefore be held to the exclusionary consequences of that provision. The definitional provision in r 1.03 of “step-child” is of a different nature, concerned with defining the relationship of the visa applicant with their parents’ spouse(s) and/or de facto partner(s). The applicant was unable to point to any directly applicable authority for the proposition that knowledge was an essential, yet unarticulated, requirement for the meeting of the definition.
For the reasons given above, I am not persuaded that the Tribunal fell into jurisdictional error through misinterpreting or misapplying cl 802.211(b)(i) of the Act.
CONCLUSION
I have not accepted that the Tribunal’s decision was affected by jurisdictional error. It follows that I am obliged to dismiss the application before the Court.
In doing so, it is difficult not to have considerable sympathy for the applicant and his family in Australia. Both the applicant and his brother came to Australia as children, where they were abandoned by their mother. They claim, and the Tribunal did not dispute, that they are dependent upon their father. They now face the prospect of separation from their family in Australia and departure to a country where they have not lived since they were children.
These matters are unable to influence my decision in this matter. However, in all the circumstances of this case, it may be desirable that consideration be given by the Minister to any available avenue of Ministerial intervention.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 9 November 2023
1
3
2