Jankovic v Minister for Immigration and Ethnic Affairs

[1995] FCA 178

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )
  )
GENERAL DIVISION                  )   No. G661 of 1994

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

B E T W E E N:

BOZIDAR JANKOVIC

First Appellant

LJUBICA KUGA
  Second Appellant

AND

MINISTER FOR IMMIGRATION, AND ETHNIC AFFAIRS

Respondent

Coram: O'Loughlin, Lindgren & Sackville JJ.
Place: Sydney
Date : 3 March 1995

REASONS FOR JUDGMENT

THE COURT:

The first named appellant in these proceedings, Mr Bozidar Jankovic, applied on 24 September 1992 for a preferential family visa (code 104).  The second named appellant is his sister, Mrs Ljubica Kuga.  She was in 1992, and remains, an Australian citizen.  Mrs Kuga sponsored her brother's application for the visa upon the premise that he was her last remaining relative outside Australia.

In 1992 Mr Jankovic was a resident of the former republic of Yugoslavia.  He and his wife had divorced five years earlier and the two daughters of their marriage, who in 1992

were aged 10 and 7, resided with their mother in Yugoslavia.

On 2 March 1993, in Belgrade, a delegate of the respondent Minister for Immigration and Ethnic Affairs rejected the application.  That decision has since been affirmed on review by the Migration Internal Review Office, the Immigration Review Tribunal and, more recently, by a judge of this court.  These proceedings are by way of an appeal from the judgment below.

The regulations under the Migration Act 1989  that were in force at the time when the application was made by Mr Jankovic have since been repealed, with effect from 1 February 1993, by the Migration (1993) Regulations, Statutory Rules 367 of 1992.  However, reg8.2 of those last mentioned regulations provide, with some qualifications that are not germane to these proceedings, that the repealed regulations continue to apply to an application for a visa or entry permit that had been made prior to 1 February 1993.  References hereafter to "the regulations" will therefore be references to the repealed regulations in their application to the circumstances of Mr Jankovic.

The success of Mr Jankovic's application for a preferential family visa was dependent upon him satisfying the prescribed criteria in relation to that class of visa.  In his case, the criterion of relationship that had to be satisfied
as  between him as an applicant for the visa and his sister as the person in Australia undertaking to provide his sponsorship was that of a "remaining relative".  This is the consequence of reading in combination reg34A, reg41 and item 2 of part 3 of the second schedule of the regulations.  The expression "remaining relative" was defined in reg9 of the repealed regulations as follows:

"(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 is 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 a kind referred to in subregulation (1)."

In considering the family circumstances of the two appellants and the application of the former reg9 to them, it is apparent that there is a primary satisfaction of subreg9.1, in that Mr Jankovic, as the applicant for the visa was, unless otherwise disqualified, a remaining relative because he had, in Mrs Kuga, a sister who was an Australian citizen who usually resided in Australia.  The disqualifying events are those that are set out in subreg9.2.

The event that was held against Mr Jankovic by both Tribunals and in the court below was the classification of each of his two children as being a "non-dependent child" and thus an "overseas near relative".  In adapting the language of reg9(2)(a)(i) of the regulations, Mr Jankovic was disqualified because he usually resided in the same country as his two non-dependent children.  The proper interpretation of "non-dependent children" as used in reg9 is, of course, at the core of this appeal; it is common ground that none of the other disqualifying events applied to Mr Jankovic.  Before turning to this question of interpretation, it must be mentioned that there was material in the papers and there were findings of fact by the Immigration Review Tribunal that pointed to Mr Jankovic maintaining contact with his children and giving them a measure of financial, emotional and social support.  As a consequence of that finding there were grounds for arguing, in a practical sense, that the children were, to a degree, financially, emotionally and socially dependent on their father.

The term "non-dependent child" was not defined in the regulations.  There were, however, definitions of "dependent" and "dependent child". These two definitions were as follows:  "'dependent', in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;

'dependent child', means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:

(a)who:

(i)has not turned 18; and

(ii)is wholly or substantially in the daily care and control of that person; or

(aa) who:

(i)has turned 18; and

(ii)is dependent on that person; or

(b)who is wholly or substantially incapacitated for work because of a physical or mental impairment;"

So far as it is applicable to the circumstances of this case the definition of "dependent child" extends to the natural or adopted child of a person (other than a child who is a spouse or engaged to be married) being a child who has not turned 18 and is wholly or substantially in the daily care and control of that person.

As to the factual matrix which may give rise to a finding that a child was or was not wholly or substantially in the daily care and control of Mr Jankovic, the evidence at its highest point is that found in the appeal papers at page 19, a certified translation from Serbian into English of a statement attributed to Mr Jankovic.  The relevant passage is as follows:

"I declare hereby that upon divorce of our marriage I continued to visit regularly my daughters every two weekends most often.  During winter and summer holiday I spent my holidays with them.  I bought them clothes and food.  I pay alimony regularly in amounts equalling almost my salary, as besides my salary I work extra hours as auto mechanic."

The breadth of the definition of dependent child, requiring as it does that the child must be substantially, at least, in the daily care and control of the relevant person, means that for the purposes of the regulations Mr Jankovic's factual circumstances are such that it cannot be asserted that
his children are his dependent children.  His emotional and financial support, whilst no doubt contributing to a measure of practical dependency, falls short of the statutory definition.  The material that was before the Tribunal was sufficient to establish that neither child was wholly or substantially in the daily care and control of Mr Jankovic.

The Tribunal, in the course of its findings, had this to say:

"The fact that the children's mother has legal custody of the girls is fatal to the claim that the principal has daily care and control of them as required by the definition of a dependent child.  This is so because a person who does not have legal custody of a child cannot be said to have the right to have the daily care and control of the child and therefore cannot delegate that care and control in a factual sense to the others."

In saying this, the Tribunal misdirected itself. Legal custody is plainly an important element in determining whether a child is "wholly or substantially in the daily care and control" of a particular person within the definition of "dependent child" in the Migration Regulations 1989. However, the fact that one parent has legal custody is not necessarily fatal to a claim by the other parent that that child is wholly or substantially in the daily care and control of that other parent. There may be circumstances, for example, in which one parent has legal custody of a child, but in fact the child lives with the other parent and is cared for on a daily basis by that parent. Whether the child is in "the daily care and control" of the other parent will depend upon an assessment of the facts.

However, it is not enough for an applicant to demonstrate that a tribunal has mis-stated the law on a particular matter, if the mis-statement could not have affected the tribunal's decision.  An immaterial error does not vitiate the decision: BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 (FCA/FCt), at 7, per Lockhart and Hill JJ.; Waterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555 (FCA/Davies J), at 566. In the circumstances of the present case, the Tribunal's comments on the significance of legal custody did not constitute a material error of law. The reason is that, taking the evidence before the Tribunal at its highest in favour of the appellant, it was not capable of establishing that the children in this case were wholly or substantially in the daily care and control of their father. There is therefore no basis for the court to interfere with the determination of the Tribunal on that question.

But the conclusion that the children are not "dependent children" of their father does not, so it is claimed, mean that they are therefore to be regarded as "non-dependent children".  The Immigration Review Tribunal had come to the conclusion that:

"The harmonious interpretation of the regulations will thus require that the expression 'non-dependent child' be read as the antithesis of the defined term 'dependent child'."

As to this, his Honour in the court below was of the opinion that the Tribunal adopted:

"... the correct construction of 'non-dependent child' and accordingly did not, in this respect, err in law."

It is this finding that is now challenged in this appeal.  Taken in isolation, the term "non-dependent child" might be capable of meaning a child who is not dependent upon any person in any manner.  If that be the correct interpretation for the purposes of the regulations it would lead to a finding that Mr Jankovic's two children could not be classified as non-dependent, primarily because of their dependency on their mother but also because of their lesser dependency on Mr Jankovic.  Then again, the term "non-dependent child" might properly take its meaning by having regard to the context in which it appears in the regulations.  In considering this latter proposition one can summarise the effect of reg9 in these terms; it is intended to apply to an intending migrant who has close relatives in Australia who are Australian citizens or permanent residents and who are usually resident in Australia.  If, however, the applicant has a close relative in his or her home country, them he or she will be disqualified.  The regulation extends its operation to the spouse of an applicant, to step relatives and also to adopted children, but as no such people exist in the circumstances of Mr Jankovic they can be put to one side.

So it can be said of Mr Jankovic that he will be disqualified from the classification as a remaining relative if he usually resides in the same country, not being Australia, as an overseas near relative, who by definition is a parent, brother, sister or non-dependent child.  The information in the appeal book is that both his parents are dead.  There is no evidence of any siblings other than Mrs Kuga.  That therefore leaves for determination the question whether the two children are to be regarded as non-dependent children.

The appellants submit that the expression "non-dependent child", which is not defined in the regulations, has a plain and ordinary meaning and that a correct approach to statutory interpretation requires that it bear that meaning in reg9.  The submission is that the plain and ordinary meaning of "non" is "not" and that the plain and ordinary meaning of "dependent" is "reliant upon".  It is further submitted that a requirement that in order to be a "dependent child" a child be "wholly or substantially in the daily care and control of" a person (see par(a)(ii) of the definition of "dependent child") imports a "specialised" and "technical" meaning of "non-dependent" which is not its plain and ordinary meaning and which is therefore to be rejected unless there is a clear legislative intention to the contrary.

In our opinion the appellant's submission should not be accepted for several reasons.  The primary task of statutory interpretation is "to ascertain the legislative intention by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong Pty Ltd v Commissioner of Taxation Cth) (1981) 147 CLR 297 at 320 (Mason CJ, Wilson J). Even the approach which accords primacy to the plain and ordinary meaning of words as against a "specialised" or "technical;" meaning is justified only because of a presumption that, generally speaking, law-makers intend their words to bear the former meaning and not the latter.

Regulation 2 defines "dependent" and "dependent child", in each case in relation to a person.  It is artificial to ignore those definitions when construing the expression "non-dependent child" which, on its face, suggests some relationship with one or other of those defined expressions.  It is reasonable to suppose that the draftsperson intended that the expression "non-dependent child" in reg9 was intended to bear a meaning which is harmonious with one or other of them.

Further, while it seems acceptable to say, as the appellants submit, that "non" has a plain and ordinary meaning of "not", "dependent" does not have "the plain and ordinary meaning" of "reliant upon" in the sense contended for by the appellants of "reliant [to some or a substantial extent] upon" as distinct from "reliant [entirely] upon".  The New Shorter Oxford English Dictionary (1993) gives the following relevant definition:

"dependent 3 resting entirely on someone or something for maintenance, support, or other requirement; obliged to use something; unable to do without someone or something, esp. a drug; maintained at another's cost."

The Macquarie Dictionary, 2nd rev Ed, (1987) gives the following relevant definition:

"dependent 1. depending on something else for aid, support, etc."

We agree with the trial judge that "the expression 'non-dependent child' has no obvious ordinary meaning" (judgment transcript at 15).

Yet further, the opening words of reg2 are as follows:

"(1) In these Regulations, unless the contrary intention appears..."

The definitions follow.  In our opinion, reg2 requires that in construing the expression "non-dependent child" in reg9 one must, unless a contrary intention appears, utilise reg2's definition of "dependent" or "dependent child" (see below).  The appellants do not submit that a "contrary intention appears" and we see no reason to think that it does.

In the alternative to their submission that the expression "non-dependent child" bears a plain and ordinary meaning and that resort to the definition of either "dependent" or "dependent child" is inappropriate, the appellants submit that of these two it is "dependent" which applies.  The submission is that the expression means "[non] [dependent] [child]" rather than "[non] [dependent child]". This alternative submission is therefore that the expression "non-dependent child" refers only to a child who is not even "substantially dependent on [Mr Jankovic] for financial psychological of physical support".  It is submitted that the evidence showed at least such substantial dependency, even if it did not show that each child was a "dependent child" by reason of being "substantially in the daily care and control of [Mr Jankovic]".

The first thing to be said about this alternative submission is that if this is indeed what the draftsperson intended, it is surprising that he or she did not foresee and take steps to overcome the difficulty which was obviously bound to arise from the juxtaposition of what, according to the submission, would be the compound adjective "non-dependent" and the noun "child".

Secondly, a natural reading of the two definitions in reg2 is that the word "dependent" is defined in terms which express a general concept relevant to the relationships between any two persons including adults, whereas the definition of "dependent child" invokes a special notion of dependency in respect of all cases of the relationship between a person and that person's children (defined for the purpose as natural or adopted children other than a child who is a spouse or engaged to be married).  Special attention has been given to the kind of dependency which is to be looked for in the case of children as distinct from persons generally.  The definition of "dependent child" shows that the draftsperson has also been concerned to distinguish between children who have turned 18 and those who have not.  In the case of those who have turned 18, the word "dependent" standing alone is used, but in the case of a child who has not turned 18, the more stringent test of "daily care and control" is invoked.  It would subvert the drasftsperson's intention to allow the word "dependent" in the expression "non-dependent child" to bear in all cases a meaning which was apparently intended to apply, in the case of children, only to those who have turned 18.

A third reason why we think that the appellants' alternative submission should be rejected was referred to by the trial judge.  His Honour accepted the respondent's submissions as to the reason why only non-dependent children are included within the notion of an "overseas near relative".  He noted those submissions as follows:

"... dependent children of an applicant are able, in the manner provided for in reg 108, to attach themselves to the application of the parent and could be expected to accompany the applicant to Australia in the event that the application is successful though the Regulations do provide that dependent children might be sponsored later:..." (judgment transcript at 9)

"Thus, it is submitted, the inclusion in the
definition of 'overseas new relative' of the expression 'non-dependent child' is intended to exclude from the class of near relatives, children to whom reg 108 applies.  That regulation applies relevantly only to a 'dependent child'.  In the result, the expression 'non-dependent child' is intended to comprehend any child of an applicant who is not a 'dependent child'.  The expressions are intended to be complementary and whether a child is a 'non-dependent child' is determined by ascertaining whether they fall within the definition of 'dependent child'.  If they do not they are a 'non-dependent child'." (judgment transcript at 9-10)

The two children cannot be regarded on the facts of this case as having been wholly or substantially in the daily care and control of Mr Jankovic.  They are therefore "non-dependent children" and "overseas relatives".  This means that a disqualifying circumstance exists which deprives Mr Jankovic of the classification of a "remaining relative"; he is not
entitled to a preferential family visa.  The appeal is dismissed; the respondent is to have his costs on the appeal.

I certify that this and the     preceding pages are a true copy of the Reasons for Judgment of the Court.

Associate

Dated:

Appearance for the Appellants     :    Mr N L Barlow, Solicitor of

Barlow & Co

Counsel for the Respondent   :    Mr N J Williams

Solicitors for the Respondent     :    Australian Government Solicitor

Hearing Date                :    3 March 1995

C A T C H W O R D S

Immigration - preferential family visa - meaning of "non-dependent child".

Migration Regulations (1989) (Cth)
Migration (1993) Regulations Cth)

BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1

Waterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation     (Cth) (1981) 147 CLR 297

BOZIDAR JANKOVIC  First Appellant
LJUBICA KUGA  Second Appellant
AND
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
  Respondent

CORAM: O'LOUGHLIN, LINDGREN & SACKVILLE JJ.
PLACE: SYDNEY
DATE : 3 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )
  )
GENERAL DIVISION                  )   No. G661 of 1994

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

B E T W E E N:

BOZIDAR JANKOVIC

First Appellant

LJUBICA KUGA
  Second Appellant

AND

MINISTER FOR IMMIGRATION, AND ETHNIC AFFAIRS

Respondent

Coram: O'Loughlin, Lindgren & Sackville JJ.
Place: Sydney
Date : 3 March 1995

MINUTES OF ORDER

THE COURT ORDERS:

1. That the appeal be dismissed.

1. That the appellants pay the respondent's costs of the appeal.

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