Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo [2005] FCAFC 192
MIGRATION – remaining relative – usual place of residence in Australia – no other place of residence – overseas relative usually resident in Chile – whether sole residence in Australia – whether the fact that the visa applicant resides only in Australia operates as a disqualification – no disqualification – subregulation inapplicable to case of applicant resident in Australia – Minister’s appeal dismissed
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v YANIRE PAMELA AHUMADA HIDALGO QUD 111 OF 2005
FRENCH, FINN AND HELY JJ 22 AUGUST 2005 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 111 OF 2005
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:
YANIRE PAMELA AHUMADA HIDALGO RESPONDENT
JUDGE:
FRENCH, FINN AND HELY JJ
DATE OF ORDER:
22 AUGUST 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant 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.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 111 OF 2005
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:
YANIRE PAMELA AHUMADA HIDALGO RESPONDENT
JUDGE:
FRENCH, FINN AND HELY JJ
DATE:
22 AUGUST 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
French J:
This is an appeal against a decision of Spender J given on 15 April 2005 in which he dismissed an application by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) for judicial review of a decision of the Migration Review Tribunal (the Tribunal) which was given on 15 September 2004. By that decision, the Tribunal set aside a decision by the Minister’s delegate to refuse a remaining relative visa to Yanire Hidalgo. It remitted the application to the Minister for reconsideration with a direction that Ms Hidalgo met relevant criteria for a subclass 835 remaining relative visa.
Ms Hidalgo, is a national of Chile who was born on 1 September 1975. She had arrived in Australia on a subclass 686 tourist (long stay) visa on 17 December 1998. She left on 14 June 1999 and re-entered on 17 June 1999. Her tourist visa was due to expire on 17 December 1999. She applied for an Other Family (residence) (class BU) visa on 14 December 1999. A delegate of the Minister refused the grant of that visa on 12 January 2004.
The application for the Other Family visa was lodged on the basis that Ms Hidalgo is a remaining relative of, and nominated by, her father who resides in Australia. Ms Hidalgo said in her visa application that her family comprises her father, Juan de Dios Ahumada, and her step-mother, Leonor Maria…
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
MIMIA v Hidalgo [2005] FCAFC 192
Case
[2005] FCAFC 192
Decision Date
CaseChat Overview and Summary
MIMIA v Hidalgo involved the Minister for Immigration and Multicultural and Indigenous Affairs seeking judicial review of a decision made by the Refugee Review Tribunal. The central issue was whether the Tribunal had correctly interpreted and applied regulation 1.15(1)(c)(i) of the Migration Regulations 1994 in determining the applicant's eligibility for a remaining relative visa. The Minister contended that the Tribunal had erred in its interpretation of the regulation, misconstruing the requirement that the applicant and their spouse usually reside in a country different from that of their overseas near relatives.
The court had to determine whether the Tribunal had properly interpreted the regulation, particularly the phrase "usually reside in a country, not being Australia, that is different to the country in which that relative resides." The Minister argued that the Tribunal had misapplied this regulation by finding that the applicant satisfied the residency requirement despite residing in Australia at the time of the decision and application. The court examined the language of the regulation and the Tribunal's reasoning in applying it to the facts of the case.
In its judgment, the court found that the Tribunal had correctly interpreted and applied the regulation. The court held that the regulation was clear and unambiguous, and the Tribunal's interpretation was consistent with the plain meaning of the words used. The court further held that the Tribunal's findings regarding the applicant's residency and the location of her overseas near relatives were supported by the evidence. Consequently, the court dismissed the Minister's appeal and ordered the appellant to pay the respondent’s costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
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
FRENCH, FINN AND HELY JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH, FINN AND HELY JJ
In the application for judicial review of the Tribunal's decision, the Minister asserted that ‘the Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material’. The particulars of the ground were set out as follows:‘(i)The Tribunal misconstrued or misapplied reg 1.15(1)(c)(i) of the Migration Regulations 1994.(ii)The Tribunal found that the applicant had 2 overseas near relatives, each of whom resided in Chile.(iii)The Tribunal found that the applicant usually resided in Australia both at the time of application and at the time of decision.(iv)The Tribunal erred in law in finding that the applicant was a “remaining relative” within the meaning of reg 1.15, and in particular that she satisfied reg 1.15(1)(c)(i), on the basis that she usually resided in a different country to the country in which her overseas near relatives resided.(v)The Tribunal misconstrued or misapplied reg 1.15(1)(c)(i), which required that the applicant usually reside in a country, not being Australia, that is different to the country in which each of her overseas near relatives resided.’The Terms of Regulation 1.15 of the Migration Regulations The relevant part of the Migration Regulations is reg 1.15 which came into force on 1 November 1999 pursuant to amendments to the Regulations made by Migration Amendment Regulations 1999, Number 13, SR Number 259. It defines the term ‘remaining relative’ which is the status that the applicant for a remaining relative visa must have in order to qualify for the grant of the visa. Regulation 1.15(1) provides:‘An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:(a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant, and(b) the other person is usually resident in Australia, and(c)if the applicant or the applicant's spouse (if any) has an overseas near relative:(i)the applicant and the applicant's spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and(ii)neither the applicant nor the applicant's spouse (if any) have had contact with that relative within a reasonable period before making the application, and(d)the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; and(e) if the applicant is a child who:(i) has not turned 18; and(ii)has been adopted by an Australian citizen, an Australian resident or an eligible New Zealand citizen (the adoptive parent) while overseas -at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.’Regulation 1.15(2) sets out a definition of ‘overseas near relative’ which is not directly material for present purposes, and reg 1.15(3) provides that:‘For the purposes of paragraphs 1(c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.’The Issue on Appeal