Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395
MIGRATION – judicial review – application for Change in Circumstance (Residence) (Class AG) visa, subclass 806 – definition of “remaining relative” – definition amended on more than one occasion – which version of definition should be applied at time of application – whether same definition applied at time of decision – whether Tribunal took into account irrelevant considerations when determining where second applicant’s parents were “usually resident” – whether applicants should now be allowed to argue that they could satisfy new form of regulation if remitted to Tribunal – whether Court should exercise discretion to refuse relief
C K Comans, “Retrospective Commonwealth Regulations” (1953) 27 Australian Law Journal 231 F Bennion, Statutory Interpretation (3rd edn, 1997) at 685
JOSEPH IGNATIOUS and MURALEESWARY IGNATIOUS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JOY WHITAKER (in her capacity as a Member of the Migration Review Tribunal) and STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal)
V218 of 2003
WEINBERG J 29 OCTOBER 2004 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V218 OF 2003
BETWEEN:
JOSEPH IGNATIOUS FIRST APPLICANT
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ignatious v MIMIA [2004] FCA 1395
Case
[2004] FCA 1395
Decision Date
CaseChat Overview and Summary
In the case of Ignatious v MIMIA, the applicants challenged a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to cancel their visas. The applicants argued that they met the criteria for a visa under the Migration Act 1958 (Cth) based on their family ties to Australia, specifically their parents who resided in Sri Lanka. The applicants' visas were initially granted on the basis that their parents usually resided in Sri Lanka, but were later cancelled on the basis that their parents had moved to Australia and therefore did not meet the residency criteria. The applicants sought judicial review of the Minister's decision in the Federal Court of Australia.
The central legal issue before the court was whether the applicants' parents were "remaining relatives" as defined by the Migration Regulations 1994 (Cth), and whether they usually resided in Sri Lanka at the time the applicants made their visa applications. The court had to interpret the relevant legislative provisions and determine whether the Tribunal's findings were correct. The applicants argued that the Tribunal had erred in finding that their parents did not usually reside in Sri Lanka, and that the Tribunal had failed to take into account relevant factors such as the parents' long history of residence in Sri Lanka and their property and employment connections there.
The court found that the Tribunal had correctly interpreted the legislative provisions and had properly applied them to the facts of the case. The court held that the Tribunal's findings that the applicants' parents did not usually reside in Sri Lanka were supported by the evidence, and that the Tribunal had appropriately considered the relevant factors. The court rejected the applicants' argument that the Tribunal had erred in failing to take into account the parents' long history of residence in Sri Lanka, finding that the Tribunal had in fact considered this evidence and had properly weighed it against other relevant factors.
The court dismissed the applicants' appeal and affirmed the decision of the Tribunal. The applicants' application for judicial review was therefore unsuccessful. The court made no order as to costs.
Orders
Orders of the court
1. The application be dismissed.
2. There be no order as to costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
WEINBERG J
This inconsistency was apparently resolved by reg 4 of the Migration Amendment Regulations 2002 (No. 5) (Cth) and item 2101 of Sch 2 thereto, which commenced on 1 November 2002. That item inserted a new reg 5(9) (“the 2002 Regulation”), which stated:“(9)Despite subregulation (5), the amendment made by item [2109] of Schedule 2 to these Regulations applies in relation to the criteria to be satisfied at the time of decision for an application for 1 of the following visas made before 1 November 1999 but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 November 2002:(a)Family (Residence)(Class AO);(b)Change in Circumstances (Residence)(Class AG).” (emphasis added)THE TRIBUNAL’S FINDINGS In its reasons for decision, the Tribunal set out the legislative provisions that it regarded as relevant and applicable to the proceeding before it. After noting the 2002 Regulation, the Tribunal stated that its effect was that the “most recent definition of ‘remaining relative’, introduced by item 2109 of Schedule 2 of the Migration Amendment Regulations 1999 (No. 13), applies”. After setting out that definition, the Tribunal considered whether at the time of application, the applicants were usually residing in a country (not being Australia) that was different to the country in which their overseas near relatives (namely the parents) resided. It noted that sub-reg 1.15(3) (of the new definition) provided that an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfied the decision-maker that the relative resided in another country. The Tribunal referred to policy relating to the new definition that stated that where it was necessary to establish in which country an overseas near relative resided, “account may be taken of that relative’s resident and employment history”. The Tribunal noted that policy also stated that overseas near relatives in Australia on, inter alia, temporary visas are not taken to reside in Australia, but are taken to usually reside in the country that was their home country immediately before entering Australia. The Tribunal held that a person did not necessarily cease to be a resident of a place because he or she was absent from it. In deciding that the parents did not usually reside in Australia, the Tribunal considered the following factors: ·at the time of application, the parents had spent about sixteen months in Australia on temporary visas; ·one of the parents had a work history of thirty-five to forty years in Sri Lanka; ·the parents had lived in Sri Lanka for around sixty years; ·the parents continued to own property and other assets in Sri Lanka; and ·they did not have a “property or employment connection” with Australia. The Tribunal concluded that the parents’ status as holders of bridging visas for around 12 months at the time of application was a “tenuous connection with Australia”.