Minister for Immigration & Multicultural Affairs v Pires
[1998] FCA 1644
•18 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – whether applicant “dependent child” – meaning of dependent for financial support – significance of condition prohibiting working whilst in Australia – psychological dependence – whether Tribunal applied appropriate test.
Migration Act 1958 (Cth), ss 476(1)(e), 476(1)(g), 476(4)
Migration Regulations 1958, regs 1.03, 676.211, 676.221(4), 802.212, 802.22, 802.221, Schedules 1, 2, 8
Workers Compensation Act 1972 (Tas)
Chakera v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 525, approved
Kauri Timber Co (Tas) Pty Ltd v Reeman (1972) 128 CLR 177, applied
Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474, applied
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V SANDRA PIRES
SG 95 of 1998
MANSFIELD J
ADELAIDE
18 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 95 of 1998
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
SANDRA PIRES
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
18 DECEMBER 1998
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 95 of 1998
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
SANDRA PIRES
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
18 DECEMBER 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 9 September 1997 Sandra Pires (“the respondent”) applied for a Family (Residence) Class AO Subclass 802 (Child) Visa (“the visa”) under the Migration Act 1958 (“the Act”). On 10 December 1997, the delegate of the Minister for Immigration and Multicultural Affairs (“the applicant”) refused that application. That decision was the subject of internal review under the Act, and was affirmed by the Review Officer on 15 January 1998. Effectively, the delegate and on internal review the internal review officer had determined that the respondent had not met one of the prescribed criteria for the visa, namely that she be “a dependent child” under the Act.
On 3 February 1998, the respondent sought review of the decision by the Immigration Review Tribunal (“the Tribunal”). On 22 June 1998, the Tribunal allowed the application for review. It remitted the application for reconsideration by the applicant with the direction that the applicant had satisfied all the prescribed criteria for the visa with the exception of the public interest criteria. The public interest criteria had not been assessed previously by the delegate, or on review internally, because it not been necessary in the light of the decisions then made. The application was remitted for that limited purpose.
The applicant seeks review of the Tribunal decision.
BACKGROUND
The primary facts are not in dispute.
The respondent was born in Mozambique on 14 November 1971. She spent most of her formative years in Portugal, her parents’ country of origin. She is a Portugese citizen, and ordinarily resident there. Between July 1986 and October 1991, the respondent and her family were permanently resident in Australia. She and her family then returned to Portugal.
After that time, she and her family stayed together at their own residence in Portugal. She obtained work as a secretary and English interpreter in law offices. She lived with her parents. She did not pay rent or pay regular outgoings. She met her future partner in 1992, and then became engaged in August 1994. She had continued to live with her parents up to then. She and her fiance then purchased a house together, to be their future matrimonial home. On 26 August 1995, she was married in Portugal. She and her husband moved into their matrimonial home. She had resigned her usual job, but obtained temporary employment for a period of some nine months. She contributed most if not all of her wages towards household and other living expenses.
Shortly after her wedding, her parents returned to Australia. They have since become Australian citizens. She maintained regular contact with them, but they did not provide any financial assistance to her. In October 1996, her marriage broke down. Soon after, she left the matrimonial home and lived with her sister, in Portugal, in a small unit until February 1997.
She entered Australia on 20 February 1997 pursuant to a Visitor Visa (676), valid to 20 May 1997. She subsequently extended her stay to 20 September 1997. I have taken that description from the reasons for decision of the delegate of 10 December 1997. The visa category of “Visitor Visa” has been repealed, and since 1995, there has apparently been substituted the category of temporary visa Short Stay (Visitor) (Class TR) Subclass 476 – Tourist (Short Stay). Under reg 676.211(b), the primary criteria for that subclass include that the visa applicant, at the time of application,
“either:
(i) has adequate funds, or access to adequate funds, for personal support during the period of the visit; or
(ii)meets the requirements of subclause 676.221(4).
Regulation 676.221(4) provides that one of the criteria to be satisfied at the time of decision:
“An applicant meets the requirements of this subclause if:
(a)he or she is in Australia; and
(b)he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c)he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d)for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e)the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f)he or she satisfies public interest criterion 4005; and
(g)the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h)the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”
Those provisions touch upon a contention of the applicant discussed below.
On 17 September 1997, she applied for the visa. She was nominated by her parents, who are eligible to do so as Australian citizens. They are ordinarily resident in Adelaide.
THE LEGISLATION
Schedules 1 and 2 of the Migration Regulations (“the Regulations”) prescribe the criteria necessary to be satisfied before the visa could be granted to the respondent. Regulation 802.212 prescribes certain criteria to be:
“The applicant is:
(a)a dependent child of a person who is an Australian citizen, an Australian permanent or an eligible New Zealand citizen; and
(b)nominated for the grant of the visa by that person.”
Regulation 802.22 contains the criteria to be satisfied at the time of the decision. It includes reg 802.221 in the following terms:
“The applicant continues to satisfy the criterion in clause 802.212.”
Regulation 802.22 also prescribes the need for the applicant to satisfy the public interest criteria which are specified, and which have not yet been addressed by the applicant.
The critical issue on the original application, and on this application for review, is whether the applicant is a “dependent child” of her parents. Regulation 1.03 defines dependent child as follows:
““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
(b) who
(i)has turned 18; and
(ii)is dependent on that person; or
(c)who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of “disability” in subsection 4(1) of the Disability Discrimination Act 1992.”
The term “dependent” is also defined in reg 1.03 as follows:
“dependent in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;”
THE TRIBUNAL’S DECISION
The Tribunal had regard to the material submitted to it on behalf of the respondent, and the departmental file. It conducted a hearing, at which evidence was given by the respondent, by the respondent’s mother and her brother, and by two friends. The Tribunal recorded in general terms the nature of that evidence, and then turned to consider the facts. Subject to the question of dependency, she fell within part (b) of the definition of dependent child as the natural child of her parents, who had turned 18, and was not a “spouse” or engaged to be married. It concluded:
“The Tribunal finds on the basis of the evidence considered, that since her arrival, Ms Pires, who herself is a person of no income and/or assets, has been totally financially psychologically [dependent] upon her parents. She also is demonstrably dependent upon them, and in particular her mother, given the emotional legacies of her separation from her former husband so soon after the marriage took place in Portugal, with understandably high expectations.
……
In the present instance, the Tribunal is satisfied that, at the time of primary decision, Ms Pires was totally financially dependent upon her parents, and substantially psychologically dependent at the same time, given her previous ordeal. In the present circumstances, there is no reason why the wording of Regulation 1.03 ought not to be given its ordinary and natural meaning, and again there is ample authority supportive of such an approach.
The Tribunal finds, on the basis of the evidence considered, that Ms Pires was at the date of primary application ‘dependent’ on her parents, and accordingly, is a ‘dependent child’ according to Regulation 1.03. Part 802.212 is therefore satisfied.
In respect to the criteria which need to be satisfied at the time of decision, the Tribunal makes the following findings. The applicant had continued to satisfy the criteria in Part 802.212 at the time of decision. In that respect, the Tribunal finds that she therefore continued to be a dependent child of her parents at the relevant time.”
Because the criteria required to be met at the time of the decision included the public interest criteria and the applicant had not addressed those criteria because the earlier decisions had rendered it unnecessary to do so, the application was remitted for that limited purpose.
It is apparent, therefore, that the Tribunal was satisfied that the respondent was a dependent child at material times, because she was
wholly dependent on her parents for financial support, and
substantially dependent on her parents for psychological support.
THE GROUNDS OF REVIEW
The applicant contends that each of those conclusions involved an error of law under s 476(1)(e) of the Act, so that the Tribunal’s conclusion should be quashed. It is contended:-
The Tribunal erred in it’s construction of the word “dependent” in reg 1.03 of the Migration Regulations when assessing financial dependence because it assessed dependence by reference to whether the respondent was at the relevant times in fact dependent for financial support upon her parents, rather than the question whether she had to rely upon their financial support. It was accepted that the evidence supported the conclusion that, in fact, the respondent was relying for financial support upon her parents.
The Tribunal must have erred in law, in a way in which it’s reasons do not expressly indicate, because it found that the respondent was substantially dependent upon her parents for psychological support. It was contended that the evidence before the Tribunal, was incapable of supporting that finding, as the evidence amounted to no more than that her parents were providing only the emotional support normally provided by a family. The applicant submitted that, because the conclusion was based only on such evidence, the Tribunal must have misapplied the law as to the proper meaning of “psychological support” in it’s consideration. The applicant submitted that the decision of Heerey J in Chakera v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 525 correctly laid down the proper test, and the Tribunal must have failed to apply it. The applicant did not invoke subs 476(1)(g) and (4) in support of that contention.
The respondent submitted that the definition of “dependent” is clear and unequivocal, and involves only a question of fact as to whether she relied upon her parents for financial support
at material times. The finding that she did so was not itself challenged. She also contended that, if the Tribunal was obliged to address dependency in the terms urged by the applicant, it had in fact done so. She also contended that the Tribunal had asked itself the correct question as to psychological support, and had made a finding on that topic which was available on the evidence. She categorised the complaint of the applicant in that regard as no more than an attempt to reargue the matter on the merits.
FINANCIAL DEPENDENCE
The applicant’s concern about the Tribunal’s interpretation of “dependent” is that it delivers or may deliver control of the state of dependency to a visa applicant. It is submitted that applications for visas of the class of the visa in issue may be made whilst the visa applicant is in Australia, or while the visa applicant is overseas. In the case of, for example, entry on a Tourist Visa, the criteria for that visa preclude the visa applicant from working whilst in Australia. The visa applicant must either have sufficient resources for support whilst in Australia, or have such support from someone within Australia. That was a condition applicable to the respondent. Although the respondent apparently has the capacity to be independent, as she was working in Portugal until her marriage and for a time after her marriage, and she had worked in Australia for a time before the family returned to Portugal, she had no assets upon her arrival in Australia and the criterion of her visa that she not work whilst in Australia, rendered it inevitable that she would in a practical sense be wholly or substantially dependent for financial support upon her parents whilst she was in Australia, and therefore so dependent at the time of her application and at the time of it’s determination. There may be circumstances in which a visa applicant for the class of visa under consideration may have disposed of assets so as to create a situation of financial dependence, even though by age, training and experience, that visa applicant remains physically capable of being financially independent. Even in the case of visa applicants who are overseas, if assets or resources overseas are disposed of, such persons may come lawfully to Australia with sufficient resources to travel to and from Australia and to support themselves whilst in Australia but, may dispose of those resources so as to create a need for financial support whilst such persons are disqualified from working by visa criteria. The applicant also submitted that there are other types of visa available under the Act in respect of which similar sorts of issues may arise. I accept that the applicant’s concerns are more than theoretical, although the extent to which those concerns are reflected in the issue arising in the day to day administration of the Act is not in evidence.
Those concerns do not themselves dictate the proper interpretation of the word “dependent”. If the term as defined in reg 1.03 of the Migration Regulations admits of the consequences which the applicant fears, and which may be evidenced in relation to the respondent in the Tribunal’s decision, on it’s proper construction, then the Court must give effect to that construction. That is the respondent’s contention.
The definition of “dependent” contains within the definition the word which is itself being defined. The definition thus requires some meaning to be attributed to the phrase “wholly or substantially dependent”. In my view, that expression is not unambiguous. It is an expression capable of describing simply the practical state of affairs as a matter of fact, namely that a person is relying upon some other person for financial support. It is an expression which is also capable of describing a state of need, namely that a person has to rely upon some other person for financial support.
In Kauri Timber Co (Tas) Pty Ltd v Reeman (1972) 128 CLR 177, the question of dependency for the purposes of the Workers Compensation Act 1927 (Tas) was required to be addressed. Gibbs J at 187-188 recognised the inherent ambiguity in the expression “dependent” in the following passage:
“The word “dependent” is not defined in the Act, although there is a definition of “dependants” which does not assist in deciding the present question. However, in it’s relevant sense, the adjective “dependent”, as defined in the Oxford English Dictionary, means that the person to whom it is applied “depends or has to rely on something else for support, supply, or what is needed”. The word, as this definition shows, is capable of different shades of meaning. It may mean “relying for support”, so that it connotes actual reliance, or “having to rely for support”, so that it connotes not only reliance in fact but a fact but a need to rely for support. The question whether a woman who has property or income of her own but who is in fact entirely supported by her husband can be said to be wholly dependent upon his earnings involves the further question in which of those senses the word is used in the Act.”
In my view, those observations are equally apt to the definition of dependent in the Act.
I have come to the conclusion that the expression “wholly or substantially dependent” in the relevant definition was intended to convey that the visa applicant has a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support. It is appropriate to explain my reasons for that conclusion.
The definition identifies that the dependency may involve the need for financial, psychological or physical support, it is clear that there is contemplated some real need on the part of the visa applicant for that support. Put at its lowest level, by way of example, it would not sensibly fulfil the purposes of the Act if a visa applicant was able to choose not to cook or clean, and allowed a state of fact to develop where some other person was providing that physical support. Indeed, as the expression “psychological support” has been interpreted (as discussed below), it involves an identifiable need for that type of support. It is therefore likely that the concept of “physical support” in context also was intended to convey that the visa applicant has a need for financial support, and not simply that as a fact such support was being provided.
It is also significant, in my view, that in relation to the respondent, the application requires her to qualify as a “dependent child”. Each of paragraphs (a) and (c) of the definition of “dependent child” clearly contemplate a condition or state of affairs giving rise to a need for support. In the case of a child under 18, the measure of the qualification is the existence of the caring and controlling relationship as a matter of fact: see Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474. It seems to have been assumed that a child under 18 is more likely to fall within the type of relationship which the visa in issue was intended to accommodate than a child over 18. In my view, the definition of dependent child recognises that, in the case of a child over 18, the qualifying relationship will not exist routinely but will require a real state of dependency in the particular circumstances. The fact that the definition is drawn in that way also seems to reflect an intention on the part of the legislature to require a child over 18 to have the need to rely upon a parent or parents rather than simply having chosen, for a time, not to exercise the independence which that person may enjoy.
In addition, if the present circumstance qualifies the respondent as a dependent child, then that qualifying dependency will be an artificial one in the sense that it would be only temporary, and would exist only because of the criteria attaching to her Visitor’s Visa or the conditions imposed on the grant of that visa. She was not dependent upon her parents until she came to Australia on 20 February 1997. There is no reason why she will not be independent if the visa is granted. She has the capacity to be independent, and she plans to obtain work in Australia. It is only the work restriction applicable to her which creates her present status where she is in receipt of financial support from her parents. It is unlikely, in my view, that it was intended that such restrictions might themselves be the reason for the state of dependency to exist. It is this aspect which seems in particular to give rise to the applicant’s concerns described above. There are other visas in respect of which conditions may be imposed prohibiting the visa holder from working whilst in Australia. The available conditions under sch 8 of the Migrations Regulations include conditions that the visa holder not engage in work in Australia except in particular and limited circumstances, see conditions 8110, 8111 and 8112. It would be a surprising construction of the definition of “dependent” that it was intended to provide to the visitor entrant eligibility to qualify as dependent on financial support (if other visa criteria are met) where the basis of entry was that the visa entrant did not have personal resources but family or friend support whilst in Australia.
Accordingly, I have reached the view that the Tribunal erred in assessing financial dependence only by reference to the respondent’s immediate situation imposed by the restriction upon her working whilst in Australia. I consider that the proper approach at law required consideration to be given to the respondent’s capacity to support herself in her country of origin, or the country from which she came into Australia, having regard to her physical and mental wellbeing, her skills and training, her resources, her background, and her general personal circumstances, and to her capacity to continue to do so. The focus upon her situation whilst in Australia in my view is too narrow a focus for responding to the question which the definition dictates. In my view, the definition of “dependent child” does not contemplate that the existence of the state of financial dependency should be inquired into only in relation to the respondent’s situation in Australia, dictated by criteria for eligibility for a visa or by the visa conditions which preclude the visa applicant from working whilst in Australia.
To that extent, I am of the view that the Tribunal may have fallen into error. It’s brief concluding reasoning on the topic of dependence upon financial support is set out above. Although it noted at that point in its reasons that the respondent was a person of no income or assets, its focus is clear from the following passage:
‘She arrived back in Australia in February 1997, and has been living with her parents, upon whom she is seemingly dependent, since that time.”
It does not otherwise appear to have addressed the broader question which, in my judgment, is called for.
There is no suggestion that, within Australia (but for the visa condition) the respondent would be unable to work. In fact, she told the Tribunal that she wished to work in Australia, to become financially independent, and to undertake studies in the nursing area although in the short term she proposed employment in the hospitality trade. She said in relation to her recent experience in Portugal: “I will not be able to find good work there, and have no assets.” Between the breakdown of her marriage in October 1996 and her arrival in Australia in 1997, she lived with her sister in Portugal, also a single person, and she had been working in Portugal until two days prior to her departure. She was able to support herself on her wage. Her parents paid for her fare, and for her belongings to be sent to Australia.
Those matters were not apparently regarded as relevant to determining whether the respondent was dependent for financial support upon her parents. There is no evidence recorded by the Tribunal tending to indicate that, if the respondent were to return to Portugal, she would need the financial support of her parents. In my judgment, the focus of the Tribunal upon the artificial interregnum imposed by the condition precluding the respondent from working whilst in Australia was not that which was intended by the Migration Regulations, albeit that they direct inquiry to the state of dependency at the time of the application and at the time of the determination of the application. They must have been intended to direct consideration of a broader picture than that upon which the Tribunal acted. That is not to indicate that necessarily the Tribunal must inquire into the reasons for an existing state of dependency if it exists, or to say that the existence of a state of dependency is other than a question of fact. But, in my judgment, the applicant is correct in the contention that the inquiry of the Tribunal did not reflect an assessment of the meaning of “dependent” as that term is used in the Act.
Accordingly, in that respect, in my judgment the Tribunal fell into error. It is not for the Court to substitute it’s view as to what finding might have been by the Tribunal had the broader picture been addressed. It may have reached the same conclusion. It may not have done so. But for my decision in respect of the second ground upon which the Tribunal’s decision was based, I would remit this matter to the Tribunal for further consideration in accordance with these reasons. In this instance, there would be no particular reason why that process should not be undertaken by the Tribunal as constituted by the member who made the decision under review. However, because the application for review fails because no reviewable error is shown in respect of the conclusion that the respondent is substantially dependent upon her parents for psychological support, there is no need to make any such order.
PSYCHOLOGICAL SUPPORT
Chakera concerned an application for review of a decision of the Tribunal refusing to grant to the then applicant’s mother a preferential family visa under the Act. The Tribunal’s decision turned upon the definition of “dependent”, identical to the definition now under consideration. The Tribunal had found that the applicant’s mother was not dependent upon the applicant for financial support or for psychological support. Heerey J upheld that decision. On the topic of psychological support, his Honour observed at 530-531:
“It was not suggested by either counsel that “psychological” was used in reg 2(1) in a medical or scientific sense. The regulations are not speaking of some kind of clinical phenomena as for example when one speaks of psychological dependency on tobacco. Rather the term is concerned with, to quote one of the meanings given in the Oxford English Dictionary, “the attitude or outlook of an individual or a group on a particular matter or on life in general” or “the mental states and processes of a person” (Macquarie Dictionary). So understood, “psychological support” directs attention to matters of the mind and spirit as distinct from material support in physical or financial form.
But the Tribunal did not attempt to apply the test prescribed by law. It adopted a different test, namely that of “emotional dependency”.
……
There may be some overlap between the concepts of psychological support, in the sense explained above, and emotional support but “emotional” has connotations of “affected or determined by emotion rather than reason” (Macquarie Dictionary) corresponding to that dictionary’s primary meaning of “emotion” as “an affective state of consciousness in which joy, sorrow, fear, hate, or the like is experienced, distinguished from cognitive and volitional states of consciousness”.
But the short answer is that the Tribunal was obliged to apply the test prescribed by the Regulations, not some other test, whether that might be more or less favourable to an applicant. In this respect the Tribunal erred in law.”
In the case now under consideration, the Tribunal did not expressly refer to the decision in Chakera. However, as the respondent submitted, the Tribunal expressly considered the principles enunciated in: Re Chamoun (Tribunal decision 3830, 27 May 1994) and Re Jonker (Tribunal decision 4937, 13 September 1994). One question in Chamoun was whether a child was substantially dependent on her mother for psychological support, so as to be a dependent child as defined. In the relevant section of it’s reasons, the Tribunal as then constituted expressly referred to the decision of Heerey J in Chakera, including in particular the passage at 530 referred to above. In Jonker, also, the Tribunal as then constituted referred to that passage in Chakera, specifically noting that Heerey J had found that the Tribunal had incorrectly substituted a test of emotional dependency for a test of psychological dependency.
As the Tribunal has expressly referred to those decisions in reaching it’s conclusions, I am not persuaded that the Tribunal erred in law in some unspecified way in its understanding of the meaning of psychological support. Whilst both parties accepted that it was necessary under the definition to distinguish psychological dependence on the one hand from emotional dependence on the other, the Tribunal appears to have recognised that distinction. There is nothing in the manner in which it expressed its conclusions which suggest that it was not alert to that distinction.
The Tribunal is not shown to have erred in law in addressing the complex fact whether the respondent is wholly or substantially dependent on her parents for psychological support. It is not for the Court to review on the merits findings of fact by the Tribunal. There has been no attempt to establish that that particular compendious finding of fact is one which attracts the ground of review under s 476(1)(g).
Accordingly, in my judgment, the second ground of review raised by the applicant must fail.
It follows that the application itself must be dismissed.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield
Associate:
Dated: 18 December 1998
Counsel for the Applicant: Ms S Maharaj Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr J Gibbons Date of Hearing: 11 December 1998 Date of Judgment: 18 December 1998
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