Kim Sang Keun v The Minister for Immigration and Ethnic Affairs
[1995] FCA 804
•9 OCTOBER 1995
CATCHWORDS
IMMIGRATION - judicial review - decision refusing extended eligibility (family) entry permit, child (after entry) entry permit and associated processing entry permits - permits sought on grounds of financial and psychological "dependency" - the requirement of "substantial" dependency discussed - function of processing entry permit - notation on further visitor entry permit "no residence" not effective to subject permit to conditions set out in s. 33(4)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth) - ss 4, 13, 14, 22, 33, 34, 47, 59, 60, 82, 92
Migration Regulations 1989 (Cth) - regs 2, 21, 22A, 22B, 28, 34A, 127, 131, 136, 178, 179
Cases Considered
Altintas v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 588
Commissioner for Superannuation v Scott (1987) 13 FCR 404
Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178
Scurr v Brisbane City Council (1973) 133 CLR 242
Shell's Self Service Pty Ltd v Deputy Commissioner of Taxation (1989) 98 ALR 165
Kim Sang Keun
v The Minister for Immigration and Ethnic Affairs
VG 384 of 1993
Drummond J
Brisbane (Heard in Melbourne)
9 October, 1995
IN THE FEDERAL COURT OF AUSTRALIA ) No. VG 384 of 1993
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN: KIM SANG KEUN
Applicant
AND: THE MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS
Respondent
MINUTES OF ORDERS
JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 9 October, 1995
WHERE MADE: Brisbane (Heard in Melbourne)
THE COURT ORDERS THAT:
The application for the review of the decision of the respondent's delegate not to grant the applicant the extended eligibility (family) entry permit is dismissed.
Leave be granted to the applicant to amend his amended application dated 28 September, 1995 to seek a review of the decision of the respondent's delegate not to grant to the applicant the processing entry permit which the applicant was deemed, pursuant to reg. 22A, to have made on 22 January, 1993.
The decisions of the respondent's delegate not to grant the applicant the child (after entry) entry permit and the processing entry permit ancillary to the application for that permanent entry permit are set aside.
THE COURT DECLARES THAT:
The applicant as the holder of further visitor entry permit No. 6795005617E1 was, on 22 January, 1993, the date of his application for the permanent entry
permit then sought, viz., the child (after entry) entry permit, the holder of a valid temporary entry permit within the meaning of that term in s. 47(1) the Migration Act 1958 (Cth).
THE COURT DIRECTS THAT:
The applicant's applications for the permits referred to in Order 3 be remitted to the respondent for reconsideration.
The respondent, in reconsidering the applications, have regard to any relevant information produced by the applicant additional to that put before the respondent by the applicant with his application of 22 January, 1993.
THE COURT FURTHER ORDERS THAT:
The respondent pay the applicant's costs of and incidental to the proceedings.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) No. VG 384 of 1993
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN: KIM SANG KEUN
Applicant
AND: THE MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS
Respondent
Coram: Drummond J
Date: 9 October, 1995
Place: Brisbane (Heard in Melbourne)
REASONS FOR JUDGMENT
This is an application to review the decisions of the respondent's delegate refusing the applicant an extended eligibility temporary entry permit ("EETEP") and a child (after entry) entry permit ("C(AE)P"), which is a permanent entry permit. Although the applicant has not sought to review a third decision of the delegate refusing to grant him a processing entry permit ("PEP"), I think that the application should be amended to seek a review of this refusal since, as will appear, the correctness of the delegate's refusal of a PEP involves consideration of the same matters which arise in relation to the challenges to the delegate's other decisions; the applicant's entitlement to a PEP has an important bearing on his entitlement to the C(AE)P. The three decisions were all made on 16 August, 1993. It is common ground that the case is governed by the Migration Regulations ("the
Regulations") then in force and by the Migration Act 1958 (Cth) ("the Act") in the form in which it then stood.
The applicant was, at the time the decisions were made, 25 years of age. He was born in Korea in 1968 and lived there with his parents until their divorce in 1979; thereafter he lived with his mother until she came to Australia in 1987 with her youngest son and the applicant's younger brother, Kim Sang Bok, who was born a few years after the applicant. The applicant was then 19 years of age and a high school student. After his parents' divorce, until 1987, he was supported by his mother, contact with his father ceasing after the divorce; his father died in April 1991. Shortly after her arrival in Australia, the applicant's mother married an Australian citizen and, on an application made in August 1988, a couple of weeks after her marriage, she was granted permanent resident status. She became an Australian citizen on 26 January, 1992; Kim Sang Bok is now also an Australian citizen. The applicant remained in Korea, living with his older sister until late 1992; she married shortly before the applicant came to Australia. His only other family member in Korea is his older married brother. On 1 November, 1992, the applicant entered Australia on a visa that operated as a temporary entry permit which allowed him to remain in Australia for a period of one month. In mid November 1992, he applied for and obtained a further visitor entry permit which allowed him to extend his stay in Australia until 25 January, 1993. On 22 January, 1993, a few days before this entry permit expired, he applied, firstly, for a temporary entry permit in the category: "Extended Eligibility (Family)" and, secondly, for a permanent entry permit in the category: "Child (After Entry)". His brother, Kim Sang Bok, gave an assurance of support pursuant to Part 6 of the Regulations, in relation to his application for the permanent entry permit. Kim Sang Bok was then 22 years old and in employment; his earnings were the source of substantial funds sent back to his older sister in Korea, with whom the applicant was then living. It is the refusal on 16 August, 1993 of the application of 22 January, 1993 that is sought to be reviewed.
Although the applicant contended, when he applied for the EETEP, that he satisfied several of the different groups of criteria prescribed for the grant of an EETEP pursuant to reg. 127, counsel only attempted to demonstrate reviewable error by the delegate in so far as the permit was sought in reliance upon the applicant satisfying the criterion in reg. 127(a)(v). This provides:
"The following criteria are prescribed in relation to an extended eligibility (family) entry permit:
(a)at the time when the application for the entry permit is decided, the applicant:
...
(v)is a dependent child:
(A)one of whose parents is an Australian permanent resident; and
(B)who was included in that parent's application for a visa referred to in items 1 to 12 (inclusive) in Part 1 of Schedule 2, in any item in Part 2 of Schedule 2 or in items 1 to 4 (inclusive) in Part 3 of Schedule 2; or
..."
Regulation 2 contains the following definitions:
"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)...
(aa)who:
(i)has turned 18; and
(ii)is dependent on that person; or
(b)..."
The criteria for the grant of a C(AE)P are set out in reg. 136, which provides:
"Subject to subregulation 34A(2), the additional criteria in relation to a child (after entry) entry permit are the following criteria:
(a)the applicant is a dependent child;
(b)the child is nominated by a parent who is an Australian citizen or an Australian permanent resident;
(c)the Minister is satisfied that the rights and interests of any person who has custody or guardianship of the child, or access to the child, would not be prejudiced if the entry permit was granted;
(d)the applicant meets the requirements of at least one of the paragraphs of subsection 47(1) of the Act."
Regulation 34A(2) provides:
"If the applicant has applied for an entry permit specified in regulation 136, 137, 139 or 140 and the application is made:
(a)at the same time as an application for a temporary entry permit; and
(b)on the form referred to in paragraph 22B(1)(b);
the time at which the applicant must satisfy the relevant part of the criterion specified in paragraph 136(d), 137(d), 139(1)(a) or 140(1)(a), as the case requires, is the time at which the decision in relation to the application is made."
Having applied on the appropriate form for a C(AE)P at the same time as he applied for a temporary entry permit, the applicant had to satisfy the criteria in reg. 136(d), i.e., those in s. 47(1) of the Act, on 16 August, 1993. The only criteria of possible relevance to the applicant provided for by s. 47(1) of the Act are as follows:
"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:
(a)...
(b)he or she:
(i)is the holder of a valid temporary entry permit; and
(ii)is the spouse or child of an Australian citizen or of the holder of a valid permanent entry permit;
(c)...
(d)...
(e)...
(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;
(g)..."
A "valid temporary entry permit" is defined in s. 4 of the Act to mean "a temporary entry permit" (defined to mean an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia) that is "a valid entry permit" (defined to mean an entry permit that was granted under the Act, that has not been cancelled under the Act and has not expired under the Act or the Regulations). Section 47(7) of the Act further restricts the range of temporary entry permits that will be "valid temporary entry permits" for the purposes of s. 47 of the Act. It provides:
"In this section:
...
"valid temporary entry permit" does not include:
(a)a temporary entry permit granted subject to a condition set out in paragraph 33(4)(a) or (b); or
(b)..."
Section 33(4) provides:
"The conditions subject to which temporary entry permits may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a)the condition that the temporary entry permit will be taken not to be a valid temporary entry permit for the purposes of section 47;
(b)where the temporary entry permit is granted to the person before entry into Australia - the condition that, in spite of anything else in this Act, the holder of the temporary entry permit will not, after entering Australia, be entitled to be granted another entry permit while he or she remains in Australia; and
(c)..."
Because the applicant applied for a C(AE)P on 22 January, 1993, i.e., after his entry into Australia, that application also had effect, pursuant to reg. 22A, as an application for a PEP ancillary to the application for that permanent entry permit. Because he applied for an EETEP, reg. 22B also gave that application effect as an application for a PEP ancillary to the EETEP. The respondent was therefore obliged to decide, at the proper time, whether the applicant was entitled to a PEP on either basis.
The criteria for the grant of a PEP are set out in reg. 131, which provides:
"The following criteria are prescribed in relation to a processing entry permit:
(a)in the case of an applicant for a temporary entry permit:
...
(b)in the case of an applicant for a permanent entry permit:
(i)on the day of the application, the applicant was the holder of a temporary entry permit or an entry visa valid for the purposes of section 47 of the Act;
(ii)the entry visa or temporary entry permit has expired, or may expire, after that day and before the application has been determined;
(iii)the applicant apparently meets the prescribed criteria in relation to the entry permit applied for, other than public interest criteria and prescribed health criteria;
..."
If the applicant satisfied the criteria in reg. 131(b), he was entitled, pursuant to s. 34(3) of the Act, to the grant of a PEP authorising him to remain in Australia until the respondent or his delegate determined whether he was entitled to a C(AE)P. The purpose of a PEP is twofold, firstly, to provide a mechanism for ensuring, in all appropriate cases, that a person who has lawfully entered Australia and who has then applied for either a temporary or a permanent entry permit will be lawfully in Australia should his original authority for entry expire after the application was made for the further permit and before a decision is made on that application: the applicant became an illegal entrant on 26 January, 1993 when his further visitor entry permit expired. See s. 14(3) of the Act. He did not become liable to deportation under s. 59 of the Act and could not be deported under any order that might have been made thereafter under s. 60 of the Act, until the expiry of 28 days after he
was notified of the decision of 16 August, 1993: see ss. 59(1), 60(2) and 13 of the Act. However, his illegal entrant status exposed him to liability to arrest and detention under s. 92 of the Act and to being required by the Minister to leave Australia pursuant to s. 82 of the Act: merely because he had pending applications for an EETEP and a C(AE)P did not at law protect him from such liability. See s. 59(2) of the Act and reg. 178 and s. 60(1) of the Act and reg. 179. Only the grant of a PEP, pending determination of his applications for an EETEP and a C(AE)P, could do that: see s. 22(1) of the Act. An applicant for a PEP ancillary to an application for either a temporary or a permanent entry permit is entitled to a prompt determination with respect to the PEP: the respondent is not entitled to defer dealing with the PEP application until he comes to deal with the application to which it is ancillary. Moreover, the object intended to be served by a PEP would be frustrated if the person charged with deciding the fate of an application for a temporary or a permanent entry permit could defer making a decision on whether to grant a PEP ancillary to that application until after he had disposed of the application. Secondly, since by reg. 34A(1A) and (2) entitlement to some classes of further temporary and permanent entry permits depends on the applicant holding a form of valid temporary permit, not when he lodged his application, but rather at the time the decision is made on his application for the further permit, and since a temporary permit will only be valid if it has not expired, a PEP is intended to stand as an equivalent to any current temporary entry permit the applicant held when he applied for the further permit but which has expired by the time the decision on his application for the further permit comes to be made.
Before the applicant could obtain a C(AE)P, i.e., a permanent entry permit, he had to be the holder of a valid temporary entry permit sufficient for the purposes of s. 47(1)(b) or (f) of the Act. The applicant sought to satisfy this particular criterion by obtaining the EETEP. He failed in that attempt and the delegate was justified in denying him the EETEP sought pursuant to reg. 127(a)(v). It was submitted that, since the applicant's mother had gained permanent residency prior to the relevant Migration Regulations coming into effect in 1989, the delegate was in error in finding that the applicant had failed to satisfy the requirement of reg. 127(a)(v)(B) that he was included as a dependent child in his mother's relevant visa application. The argument I think misconceives the legal position. It is common ground that the regulatory provision governing the applicant's entitlement to the EETEP sought was reg. 127. It was impossible for him to satisfy the requirements of sub-paragraph (B) of reg. 127(a)(v): even if the mother's application of 22 August, 1988 for resident status in Australia is assumed to be an application of the kind referred to in reg. 127()(v)(B), the simple fact is that the applicant was not included in it. His mother proffered an explanation for this omission, but whether it be thought to be unpersuasive or compelling is irrelevant. A person is entitled to the kind of permit referred to in reg. 127 if, and only if, he can satisfy all of the criteria prescribed. I reject the submission by counsel for the applicant that reg. 127 is a provision that can be given a discretionary as opposed to a mandatory interpretation, so that it can be satisfied by substantial, rather than strict compliance. Those concepts have no application to this provision, which prescribes precise criteria that must all be satisfied if the permit is to issue. Cf. Scurr v Brisbane City Council (1973) 133 C.L.R. 242 at 255-256. Even if those concepts could apply to this regulation, it is an impossible argument that satisfaction of two of the three criteria prescribed by reg. 127(a)(v) means that satisfaction of the third is not necessary. It was not suggested that there was anything in the nature of a transitional provision that might require reg. 127(a)(v) to be given any different effect. Since he was not entitled to the EETEP, the delegate was also entitled to refuse him the PEP ancillary to his EETEP application, which he was deemed by reg. 22B to have made.
However, if the applicant was entitled to the PEP which he was deemed by reg. 22A to have applied for on 22 January, 1993, but which the delegate also denied him, that would have served just as well as an EETEP to satisfy the criterion imposed by s. 47(1) of the Act and regs. 136 and 34A(2) that he be the holder of "a valid temporary entry permit" on 16 August, 1993 when the delegate came to decide whether he was entitled to the grant of a C(AE)P. A PEP is a "temporary entry permit" within the definition in s. 4 of the Act. It is necessarily limited in operative duration to the period between its grant and the decision on the application to which it is ancillary; reference to it is made in that Division of Part 3 of the Regulations which deals with temporary entry permits.
The delegate's decision
The applicant was advised by letter dated 16 August, 1993 of the failure of his application for the EETEP; the reasons for the decision were included with this letter. In these reasons, in addition to explaining why the applicant was not entitled to the particular EETEP he sought, the delegate informed him that the grant of "a processing entry permit and/or any other class of extended eligibility entry permit is also refused". His application for a C(AE)P was not one for the latter class of permit: see the definition of "extended eligibility entry permit" in reg. 2 and see also reg. 21 and s. 33(2)(a) of the Act. It is a class 1, not a class 12, permit. The delegate made no express reference to the application for the C(AE)P. It appears from his reasons that the delegate refused a PEP because he thought that the applicant's lack of entitlement to an EETEP necessarily disentitled him to any PEP. I note in the covering letter the applicant was told that "any processing entry permit which may have been granted to you has now ceased to have effect" because an EETEP was refused. There is no evidence that a PEP was ever granted. This statement in the letter suggests the delegate had in mind only the application for a PEP ancillary to the application for the EETEP deemed to have been made by reg. 22B and that he overlooked the fact that the applicant was also deemed by reg. 22A to have applied for a PEP ancillary to his application for a C(AE)P. It also appears from the covering letter of 16 August, 1993 that the delegate refused the C(AE)P because he considered that, unless the applicant could succeed on his application for an EETEP, he could not obtain a C(AE)P because he could not satisfy the criterion prescribed by any of the relevant paragraphs of s. 47(1) of the Act and by reg. 136 of holding "a valid temporary entry permit" at the time the delegate came in August 1993 to make his decision on the application for the C(AE)P. These were errors of law on the part of the delegate: that the applicant was not entitled to an EETEP was not the end of the matter. A PEP is a temporary permit. If the applicant was entitled to the grant of the PEP he was deemed by reg. 22A to have applied for, that would have overcome the obstacle to his right to the C(AE)P presented by the lack of "a valid temporary entry permit" within s. 47(1) of the Act. The delegate failed to appreciate this and his decision which operates as a refund of both the PEP ancillary to the C(AE)P application and the C(AE)P itself is therefore open to review. In any event, if the delegate's refusal of the PEP ancillary to the C(AE)P application had been challenged by the applicant, it would have been open to review at least on the
ground of the delegate's failure to give any reasons for this decision.
Neither counsel adverted to the refusal of the PEP ancillary to the application for a C(AE)P. But counsel for the respondent argued that the delegate's rejection of the C(AE)P application was immaterial in that the delegate made a decision on the EETEP application that the applicant was not "a dependent child" for the purposes of reg. 127(a)(v), which is immune from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and it would therefore be pointless to send the matter back for determination of the C(AE)P application ("the no dependency argument"). As is apparent from regs. 127(a)(v) and 136, one of the criteria the applicant had to satisfy before he could get either an EETEP or a C(AE)P was that of being "a dependent child". And before the delegate could properly refuse the deemed application for the PEP ancillary to the application for the C(AE)P, he was also required by reg. 131(b)(iii) to determine whether the applicant was "apparently" a "dependent child". Regulation 131(b)(iii) only requires a preliminary or provisional, as opposed to a concluded determination on whether an applicant for a PEP meets the criterion of being "a dependent child". The Oxford English Dictionary gives as meanings for "apparently": "To external appearance; seemingly. (Distinguished from, though not necessarily opposed to, really); so far as one can judge". But the question of the applicant's dependency is still central to his entitlement to all these permits. I therefore think it appropriate to consider whether if the matter were remitted to the respondent for further consideration, no result other than the dismissal of the applications for the C(AE)P and the associated PEP would reasonably be open. Unless that is the case, the matter should be remitted. Cf. Shell's Self Service Pty. Ltd. v Deputy Commissioner of Taxation (1989) 98 A.L.R. 165 at 179.
The respondent also argued, as an independent ground for denying the applicant relief in respect of the delegate's failure to determine his application for a C(AE)P, that it is impossible for him to satisfy one of the criterion imposed by each of s. 47(1)(b) and (f) of the Act, viz., that he was the holder of a "valid temporary entry permit" as defined in s. 47(7) of the Act ("the lack of a valid temporary entry permit argument"). Counsel's argument was that the further visitor entry permit which the applicant held when he applied for the C(AE)P was not a "valid temporary entry permit" within s. 47(1) of the Act because it was granted subject to a condition set out in s. 33(4)(a) of the Act. Regulation 34A(2) requires the applicant to show that he held a "valid temporary entry permit" within s. 47(1) of the Act not at the time he applied for the C(AE)P, but at the time the decision on his C(AE)P application was made in August 1993, when his further visitor entry permit had long since expired and so could not, for that reason, be "a valid temporary entry permit" sufficient to satisfy the requirements of s. 47(1) of the Act. But to be entitled to the PEP which the applicant was deemed by reg. 22A to have applied for when he sought the C(AE)P on 22 January, 1993, he had on that date to be "the holder of a temporary entry permit ... valid for the purposes of section 47": reg. 131(b)(i). It is only if the further visitor entry permit which the applicant held when he is deemed to have applied for the PEP under reg. 22A was not a "valid temporary entry permit" within s. 47(1) of the Act because it contained a condition set out in s. 34(4)(a) of the Act that the applicant would necessarily fail to satisfy the criterion imposed by reg. 131(b)(i) for the grant of a PEP. Although counsel did not advert to the question whether the further visitor entry permit was a valid temporary entry permit within s. 47(1) of the Act in the context of the PEP application, his argument remains in point.
The no dependency argument
I reject this argument for a number of reasons.
I think that the decision the delegate made on the application for the EETEP in the context of reg. 127(a)(v) that the applicant was not "a dependent child" involved a reviewable error. It was contended that the decision maker, in concluding that the applicant was not wholly or substantially dependent for financial support on his mother, applied to the factual circumstances a test different from that required by the relevant regulations. In his detailed reasons, under the heading "Findings and Recommendation", the delegate dealt with the applicant's contention that he was financially dependent on his mother, and so was, within the meaning of reg. 127(a)(v), "a dependent child" of his mother, who it is common ground was an Australian permanent resident at all relevant times, in this way:
"The applicant is now 25 years of age. His parents were divorced in 1979 and his mother left Korea in 1987 when he was 19 years of age and a high school student. He lived with his sister from 1987 until he visited Australia in December 1992. He left school after his mother moved to Australia and worked for a number of distributors delivering goods and doing small repairs on appliances.
He advised that his father remarried, had another family to provide for and did not support his first family in any way after his divorce from the applicant's mother.
The applicant advised that he had not lived with nor received support from his father at any time since his parents divorced in 1979.
Although his father died in 1991 he was not the applicant's last custodial parent for the purposes of Regulation 127 (a)(i).
His mother was in fact his custodial parent up until 1987 when she left Korea. The applicant lived independently from both parents from 1987 till December 1992.
The applicant claims that although he was working from the time he finished school, shortly after his mother left for Australia, his mother sent funds to Korea to assist him. He claims this was necessary because of the low wages paid in Korea.
There is no evidence of funds sent to the applicant but to his sister with whom he lived. The sponsor explained that these funds actually came from her younger son who is in Australia and is working full-time. The sponsor claims that she manages her younger son's finances as is Korean custom. She also explained that as her daughter in Korea has now married tha (sic) applicant has nowhere to live and she would like to take care of him until he marries as is Korean custom.
However due to the length of time the applicant has been living and working independedntly (sic) from his parents I do not accept that he is financially dependent on his mother. I accept that collectively some funds have been sent from the family in Australia to the family in Korea."
After dealing with the other arguments advanced by the applicant, including his contention that he was a dependent child of his mother because he was psychologically dependent on her, the delegate said:
"I therefore concluded that the applicant is not ... a dependent child and is unable to meet the requirements of Regulation 127(a)(i)& (v) as claimed, nor the requirements of Regulation 127(a)(ii)(iii)(iv)(vi)."
As is apparent from the delegate's reasons, there was conflicting information before the delegate on a number of matters. The conflicts included the true nature of the applicant's work history in Korea between leaving school in 1987 and arriving in Australia in November 1992 and as to how much of the moneys sent back to Korea could be regarded as having been provided for the applicant's support, as opposed to the support of his older sister with whom he was living and as to how much of the funds could be regarded as having been provided by the mother, rather than by the applicant's younger brother. These conflicts were for the delegate to deal with; there was no suggestion that the delegate reached conclusions unreasonable in the Wednesbury sense, so the views he formed on these matters provide no basis for the review of the decision.
However, I accept that the decision is open to the criticism that the delegate did not deal with an essential matter: there was evidence sufficient to justify a conclusion that the applicant was substantially dependent on his mother for financial support, even if not wholly dependent on her, but the delegate, I think, failed to consider that matter.
It appears, from a reading of the delegate's decision, that he considered the question whether the applicant was financially dependent on his mother (and also whether he was psychologically dependent on her) because they were the two reasons the applicant himself advanced in support of his claim to be her dependent child. The language of the decision here is that of the applicant, not that of the relevant definitions in the Regulations. It is noteworthy that, while the delegate set out those parts of reg. 127 relevant to his decision and those parts of the definition of "dependent child" in reg. 2, the delegate did not set out or mention the important definition of "dependent" in that same regulation which gives a precise meaning to the expression "dependent child" for the purposes of reg. 127. It is only this definition of "dependent" that identifies the need to have regard, in determining whether a child is a dependent of a parent, to whether he is partially dependent on the parent for financial support. That the delegate did consider that the question for him was limited to whether the applicant was wholly dependent on his mother is also suggested by what the delegate had to say about the applicant having left school after his mother moved to Australia and then having worked for a number of distributors and to the applicant living and working independently from his parents for a long period of time. There is nothing in the delegate's reasons that I can find which suggests that he was alert to the need to consider not just whether the applicant was financially dependent on his mother but also the materially different question of whether the applicant was partially dependent on her for his financial support at the relevant time to the extent where it could fairly be said that, while not wholly dependent on her in that regard, he was substantially dependent on her.
Whether the applicant was substantially, as distinct from wholly, dependent on his mother for financial support would involve, in the context of this case, a careful evaluation of the applicant's financial position and his personal relationship with his mother. In Commissioner for Superannuation v Scott (1987) 13 F.C.R. 404 at 407-8, the Full Court said of the phrase "wholly or substantially dependent" upon a deceased worker, which governed a widow's entitlement to a pension under a statutory superannuation scheme, that the word "substantially" means something less than total dependence; that it means primarily, essentially or in the main dependent on the deceased. The Court, at 410, also regarded dependency as connoting a need for one to rely on another for support even though that need may not have been met at the relevant time. The Court observed, at 408-409, in sending the case back for reconsideration, that, notwithstanding the meaning it gave to the word "substantially" in this context, whether there was substantial dependence in the particular case is a question of fact and that "we would not like to think that to attach our meaning to that word necessarily has the consequence that Mrs. Scott must be unsuccessful in her claim". There, the question was whether the wife was substantially dependent upon the husband at the date of his death. The marriage had broken down; although the spouses continued to live separately in the matrimonial home for about six months before the husband's death, about five months before that they had entered into an agreement registered under the Family Law Act 1975 (Cth) under which the husband had agreed to move out, to transfer his interest in the home to his wife in return for $23,000 from her and under which both agreed that each should from the date of the agreement cease to have any obligation to pay maintenance to the other.
There is ground for thinking that the delegate may not have attempted to identify with precision the extent of the financial support provided by the mother to the applicant because of his error in thinking that the question for him was whether the applicant was shown to be financially dependent on his mother in the sense that he was fully dependent on her. The delegate said: "There is no evidence of funds sent to the applicant but to his sister with whom he lived." He must, I think, be understood as meaning no documentary evidence. The applicant's mother, in her statutory declaration provided in support of the applicant's application, detailed the quite significant sums she said she had given to him and stated that some of the receipts were thrown away. Documentary evidence before the delegate of the transfers of funds from Australia to Korea show that on three occasions (October 1991, June 1992 and on another occasion the date of which is not revealed) moneys totalling nearly $9,500.00 were sent in the name of the applicant's younger brother, who lived with his mother, to the applicant's older sister, with whom the applicant was living. It is difficult to accept that the payments referred to by the applicant's mother are one and the same as those covered by the documentary evidence showing transfers of funds by the younger brother to the older sister. Given what the delegate was apparently prepared to accept of the information put before him, there appears to me to be no reason to doubt that some, at least, of the funds sent from Australia to Korea were intended to be for the benefit of the applicant, even though they were paid to the applicant's older married sister with whom he was living. A consideration of whether the applicant was substantially dependent on his mother for financial support, as opposed to being wholly dependent on her, against the background of this evidence, required the delegate to make the best evaluation he could of how significant that evidence was as evidence of support by the mother of the applicant, yet he appears not to have done that. Since I cannot say that the only decision which would reasonably be open on the material before the delegate, if the matter were remitted, would be that the applicant was not substantially dependent on his mother for financial support, the delegate must reconsider this question in the context of considering the application for the C(AE)P and associated PEP.
Moreover, if the matter goes back for reconsideration, the applicant can be expected to put material before the decision maker additional to that which he elected to put before the delegate previously: there was tendered on his behalf at the hearing before me detailed evidence from Mr. Woo and Ms. Neil designed to show that it was an established feature of Korean custom that a parent, including a mother, had obligations to support both materially and in other ways children, including adult male children, up to the time of their marriage. The tender was provoked by the fact that brief reference was made to this matter in the material that was put before the delegate and in his reasons. The tender was objected to and I admitted it subject to ruling later on its admissibility. If the delegate could be said to have come under an obligation to conduct inquiries of his own into this feature of Korean culture, having regard to the fact that it was raised in a limited way in the material before him, then this evidence could well be admissible as going to show the sort of information the delegate would have turned up if he had discharged such an obligation. However, no attempt was made on behalf of the applicant to demonstrate that the decision maker was under an obligation to make inquiries of his own. I think that the rule is that, save in special circumstances, an administrative decision maker is entitled to confine himself to the material the applicant for the decision chooses to put before him: he need not embark upon inquiries of his own. Enichem Anic Srl v Anti-Dumping Authority (1992) 111 A.L.R. 178 at 190. I will not admit this evidence in the proceedings before me on any issue relating to whether the delegate fell into error in making his decisions. However, this material, on its face, has a degree of cogency and, if it had been before the delegate when he made his decision and if he had also turned his mind to the question of substantial dependence, it could have caused him to adopt a different attitude to that which he did in evaluating the evidence concerning the financial support the applicant's mother said she gave him.
It was suggested that the delegate, in effect, treated as irrelevant to his decision the evidence showing that a large number of telephone calls were made by the mother to the applicant, his older sister and his older brother in Korea over the period 1987 to 1992 in rejecting the applicant's claim that he was psychologically dependent on his mother. What the decision maker here said was this:
"The applicant is also claiming to be psychologically dependent on his mother and has produced telephone accounts showing a large number of calls to Korea. However the calls were made to several numbers and as the sponsor had three children in Korea it is understandable that she should contact them on a regular basis. I do not accept the accounts as proof of psychological dependence, particularly in view of the long period of separation and in the absence of any supporting evidence.
In my view the applicant is not financially nor psychologically dependent on the applicant and there is no claim of physical dependence."
A reading of this portion of the decision suggests that all the delegate here did, after identifying this
particular body of evidence and the issue to which it was said to be relevant, was evaluate what he considered to be the cogency of that material as proof of psychological dependency. What might be regarded as an unusually large number of telephone calls over a long period between a mother and an adult son could provide some evidence of psychological dependency in circumstances similar to those in the present case; but a lesser number of calls, which might be regarded as suggesting only normal contact between a separated mother and adult child, could well be dismissed as not providing any evidence of such dependency. I think it was just that sort of reasoning process that the delegate here embarked upon. That is precisely the sort of fact finding task that is the province of an administrative decision maker and not of the Court. There is, I think, no substance in the charge that the delegate failed to have regard to other evidence which was said to be relevant to the question of psychological dependence. He in fact referred to some of this evidence, although he did not specifically mention every piece of evidence the applicant's counsel pointed to in this regard. I am not satisfied that the delegate ignored any of this evidence and, in any event, either individually or collectively, it does not amount to a body of evidence which, if accepted, would compel a conclusion by a decision maker that any degree of psychological dependence sufficient to show complete or substantial dependence was shown. While I do not think the delegate's decision that the applicant was not psychologically dependent on his mother is infected with error, the evidence now available to the applicant concerning Korean custom, when added to the evidence before the delegate, might well lead the delegate to a different view on whether the applicant was substantially, if not wholly, dependent on his mother for psychological support.
The lack of a valid temporary entry permit argument
I reject this argument also.
The temporary entry permit issued on 7 December, 1992 for a stay until 25 January, 1993 which the applicant held on 22 January, 1993 when he applied for a C(AE)P and when he is deemed to have applied for a PEP cannot be regarded as subject to a condition set out in either s. 33(4)(a) or (b) of the Act and thus incapable of being a valid temporary entry permit sufficient to satisfy the criteria in s. 47(1)(b) or (f) of the Act. This temporary entry permit was put in evidence by the respondent. It is a brief document. Under the heading "Conditions", the following appears:
". No work (Reg. 27.3.A)
. No formal study (Reg. 27.3.C)
. No residence (MA 33.4.A)
. Extension limitation (Reg. 120A)"
There is nothing in these cryptically stated conditions which can be read as a condition of the kind set out in s. 33(4)(a) of the Act, viz., a condition that temporary entry permit No. 6795005617E1 must "be taken not to
be a valid temporary entry permit for the purposes of s. 47". Even if the notation "(MA 33.4.A)" in the permit conditions should be read as a reference to s. 33(4)(a) of the Act, I do not think the accompanying words "no residence" are at all apt to make this permit subject to the only kind of condition authorised by s. 33(4)(a) of the Act. They suggest that the permittee is not authorised to establish himself in Australia to the extent where he could be said to be a resident of the country. This wholly fails, in my opinion, to stipulate that the permit is granted on condition that, even if the permittee is a person otherwise within s. 47(1)(b) to (g) of the Act, he will not be entitled to a permanent entry permit. Altintas v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 F.C.R. 588 at 601 supports the view of the inadequacy of the notation in the permit. I note that no attempt was made to prove that this notation was in a form approved by the Minister pursuant to reg. 28(3) for the setting out of the condition prescribed by s. 33(4)(a) of the Act.
In my opinion, the consequence is that the permit issued on 7 December, 1992 was a valid temporary entry permit sufficient for the purposes of s. 47(1) of the Act. The inadequacy of the notation in question in the permit as a statement that the permit was subject to the condition provided for by s. 33(4)(a) of the Act means, in my opinion, that that permit was free of any such condition. Neither s. 33(4) of the Act nor reg. 28 can be read as requiring every temporary entry permit to include all or any of the conditions there set out: it is a matter for the discretion of the respondent whether a particular permit or class of permit is to be subject to any particular condition or conditions. There is no justification for holding that a permit granted for the purpose of making a person's presence in Australia lawful, will not have that effect because an ineffective attempt to exercise a discretion to impose a condition on the permit was made. There is nothing that I can see which would prevent this notation from being disregarded as meaningless surplusage, while giving the permit full effect as an authority to be in Australia for the period of the permit.
It follows that since the applicant was, when he applied for his C(AE)P and when he is deemed to have applied for an associated PEP, already the holder of temporary entry permit No. 6795005617E1 valid for the purposes of s. 47(1) of the Act which was due to expire three days after the application for the C(AE)P was made, he satisfied the criteria in reg. 131(b)(i) and (ii) for the grant of a PEP. He was therefore entitled to the grant of a PEP ancillary to his application for a C(AE)P which would have enabled him to satisfy the criteria for the grant of the C(AE)P imposed by reg. 136(d) if he satisfied the criterion imposed by reg. 131(b)(iii), viz., that he apparently was "a dependent child". Although the applicant is entitled to a declaration that, as an applicant for a PEP ancillary to his application for a C(AE)P, he held a valid temporary entry permit sufficient for the purposes of reg. 131(b)(i) on the day he applied for that PEP, it is not appropriate for this Court to direct the respondent to issue the PEP: the respondent or his delegate, rather than the Court, should determine whether he satisfies reg. 131(b)(iii) by apparently meeting the criteria prescribed by reg. 136, including that of apparently being a dependent child; the question whether any conditions should be attached to any PEP he may be entitled to receive, in the bona fide exercise by the respondent of the power to attach reasonable and relevant conditions to entry permits, is also a matter for the respondent, not the Court. The applications for the C(AE)P and associated PEP must go back to the respondent for reconsideration.
The result of the case
The application for the review of the decision of the delegate of 16 August, 1993 not to grant to the applicant the extended eligibility (family) entry permit applied for on 22 January, 1993 is dismissed.
I will grant leave to the applicant to amend his amended application to seek a review of the decision of the delegate of 16 August, 1993 not to grant to the applicant the PEP which the applicant was deemed, pursuant to reg. 22A, to have made on 22 January, 1993.
The decisions of the delegate of 16 August, 1993 refusing the grant of the C(AE)P and the associated PEP are set aside. The applications for each of these permits are remitted to the respondent for reconsideration.
I will declare that the applicant as the holder of further visitor entry permit No. 6795005617E1 was, on 22 January, 1993, the date of his application for the permanent entry permit then sought, viz., the C(AE)P, the holder of a valid temporary entry permit within the meaning of that term in s. 47(1) of the Act.
I will also direct that the respondent, in reconsidering the applications, have regard to any relevant information produced by the applicant additional to that put before the respondent by the applicant with his application of 22 January, 1993.
I certify that this and the preceding
29 pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.
Associate:(sgd.) Lisa Keran
Date: 9 October, 1995
Counsel for the applicant: P. L'Estrange
Solicitors for the applicant: John Wallis & Associates
Counsel for the respondent: T. Ginnane
Solicitors for the respondent: Australian Government
Solicitor
Date of Hearing: 28 September, 1995
Date of Judgment: 9 October, 1995
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