Minister for Immigration v Yucesan - [2008] FMCA 317

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v YUCESAN & ANOR

[2008] FMCA 317

MIGRATION – Visa – Prospective Marriage (Temporary) (Class TO) visa – principles of statutory interpretation – purpose – purposive approach – context – extrinsic materials – words of cl.300.214 of Schedule 2 have to be interpreted in their legislative context – the true meaning of cl.300.214 is a question of law.

WORDS & PHRASES – “Meet” – “met” – whether parties have to meet face-to-face – whether parties can meet by internet or video telephony – communication by Skype – no reviewable error.

Migration Act 1958 (Cth), ss.4,359C, 476
Acts Interpretation Act 1901 (Cth), ss.15AA, 15 AB
Legislative Instruments Act 2003 (Cth), s.13
Migration Regulations1994 (Cth), cl.300.214 of schedule 2
Migration Regulations (Amendment) 1996 No 211

Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1 referred to
Re Minister for Immigration; Ex parte Cohen (2001) 177 ALR 473 referred to
Saraswati v The Queen (1990-1991) 172 CLR 1 referred to
NAQF v Minister for Immigration (2003) 130 FCR 456 referred to
An v Minister for Immigration and Citizenship [2007] FCAFC 97 followed
Chang v Laidley Shire Council [2007] HCA 37 followed
Minister for Immigration & Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523; [2005] FCAFC 154 referred to
CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 followed
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 referred to
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 referred to
Collector of Customs v Agfa-Gevaert (1997) 186 CLR 389 referred to

Applicant:

MINISTER FOR IMMIGRATION

First Respondent:

DEMET YUCESAN

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2398 of 2007

Judgment of:

Scarlett FM

Hearing date:

15 November 2007

Date of Last Submission:

15 November 2007

Delivered at:

Sydney

Delivered on:

19 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr G.J. Johnson

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondents:

Mr N. Poynder

Solicitors for the Respondents:

Thomas Booler & Co

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2398 of 2007

MINISTER FOR IMMIGRATION

Applicant

And

DEMET YUCESAN

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application by the Minister for Immigration and Citizenship for review of a decision of the Migration Review Tribunal. On 25^th June 2007 the Tribunal made this decision:
The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·    cl.300.211 of Schedule 2 to the Regulations;
·    cl.300.212 of Schedule 2 to the Regulations;
·    cl.300.213 of Schedule 2 to the Regulations;
·    cl.300.214 of Schedule 2 to the Regulations;

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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Details

Case: [2008] FMCA 317
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the matter of Minister for Immigration v Yucesan, the Federal Court was tasked with interpreting the meaning of the word "met" as it appears in clause 300.214 of the Migration Regulations. The case concerned the interpretation of a visa requirement for a Prospective Marriage (Temporary) (Class TO) visa, specifically whether the requirement that the parties "met" meant they had to meet face-to-face. The applicant, Yucesan, argued that meeting by internet or video telephony could satisfy the requirement, while the Minister contended that face-to-face meeting was necessary.

The court examined the purposive approach to statutory interpretation, emphasizing that the true meaning of the word "met" should promote the purpose or object of the provision. The court considered extrinsic materials, including the explanatory memorandum for the 1996 amendment to the clause, which aimed to curtail abuse of the previous provision for arranged marriages. The court found that meeting by internet or video telephony could be as effective as face-to-face meetings in allowing parties to form an opinion about each other's compatibility, thus satisfying the clause's purpose.

Consequently, the court ruled that the Tribunal did not err in finding that non-physical person-to-person interactions could satisfy the requirement of "met." Since there was no jurisdictional error, the decision of the Tribunal was a privative clause decision, and orders for certiorari and mandamus were not available. The application was dismissed with costs.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Poynder referred the Court to the Macquarie Dictionary[13] where there are several definitions of the word “meet” and contended that the definitions are not exclusively of each other, so that a definition such as “to come into personal acquaintance with” does not necessarily require face-to-face contact.[13] online edition, http:>He submitted that the extrinsic materials referred to by counsel for the Minister did not support the contention that “met” only means “met face-to-face”. The re-wording of clause 300.214 in 1996 was not plainly done to ensure that parties had physically met or had come into face-to-face contact. He submitted that the explanatory memorandum gave the express reason for the amendment as “to curtail abuse of the previous provision for arranged marriages’. It was not clear how including a new phrase “have met and’ could contribute to his intention, but it was furthered by removing the exception “Unless the marriage has been arranged in accordance with traditional custom observed by the family of either or both parties”. The reason for the amendment was plainly to remove the exception for arranged marriages.Mr Poynder also submitted that there was nothing elsewhere to suggest that the purpose or object underlying the legislation is furthered by interpreting “met” as meaning “met face-to-face”. The statement of objects in s.4 of the Migration Act is extremely general and it is not possible to identify form the Act as a whole any purpose or underlying object with such precision as would enable one to say that a particular provision would or would not promote that purpose or object (see NAQF v Minister for Immigration[14][14] (2003) 130 FCR 456 at [71] (Lindgren J)In a submission in reply, Mr Johnson of counsel contended that the first respondent’s submission that the meaning of the word “met” was a question of fact and that no question of jurisdictional error arises is misconceived. The true construction of clause 300.214 is a question of law, as is the meaning to be given to the word “met” in the context in which it appears. Mr Johnson relies on the following authorities:·An v Minister for Immigration & Citizenship [2007] FCAFC 97 at [2]-[7] per Lindgren J and [82]-[83] per Emmett J;·Chang v Laidley Shire Council [2007] HCA 37 at [41]-[44];·Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [59]-[65];·CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408;·Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [202];·Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] 384, [78]; and ·Collector of Customs v Agfa-Gevaert (1997) 186 CLR 389 at 395-397. ConclusionsThe decision in An v Minister for Immigration and Citizenship was an appeal heard by the Full Court of the Federal Court from a decision of the Federal Magistrates Court. Pascoe CFM had dismissed the applicants’ application for judicial review of a decision of the Migration Review Tribunal.The relevant issue concerned the Federal Magistrates Court’s finding that the Tribunal’s conclusion that an appointment was not “exceptional” was properly a finding of fact. Lindgren J stated these principles:4.First, although the ordinary meaning or common understanding that a simple non-technical English word conveys in the community is a matter of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [35] per McHugh J and cases there cited), indeed a matter of fact of which judicial notice may be taken, this is often an insufficient proposition on which cases can be decided…5.Second, whether facts fully found answer a statutory description or statutory criteria, properly construed, may be exclusively a question of law…6.Third, minds may, without legal error, differ on the question whether facts that are at law capable of doing so, fall within or outside words that are used in a statute according to their ordinary or common understanding…7.…It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the ‘usual’ or ‘ordinary’ case that was in contemplation against which exceptionality is to be measured.[15] [15] [2007] FCAFC 97 at [4]-[7]In that same case, Emmett J held:The meaning of a word in a statute or statutory instrument is a question of law, to be determined by reference to the context of the word in the statute or instrument or instrument and the purpose or object of the provision within the statute or instrument. Ordinarily, of course, a word in a statute or instrument is given its meaning in ordinary English. That is a matter of fact of which judicial notice might be taken by reference to dictionaries and the like. However, once the meaning of a word is determined, the question of whether the particular circumstances of the case fall within that word is one of fact for the relevant decision maker: so long as the finding made by the decision maker is open to it on the material before it, there would be no error of law that would constitute jurisdictional error.[16] [16] [2007] FCAFC 97 at [83]In Chang v Laidley Shire Council Kirby J had this to say about advances in statutory interpretation:Traditionally, the English law and its derivatives (including in Australia) adopted a fairly strict, textual, literal, or “grammatical” approach to interpretation.[17] However, in more recent years, in part because of a growing understanding of how ideas and purposes are actually communicated by words, this Court, English courts and other courts of high authority throughout the common law world have embraced a broader, contextual reading of statutory language and other texts having legal effects.Specifically, this Court has accepted that it is an error of interpretive approach to take a word or phrase in legislation and to read that word or phrase divorced from its immediately surrounding provisions (and any other relevant indicia of meaning such as legislative history, stated purposes and admissible extrinsic materials. Once it was thought necessary that there should be an ‘ambiguity’ in the word before that wider search was proper, or even permissible. Recent authority of this Court has rejected that requirement.[18] [17] footnotes deleted[18] [2007] HCA 37 at [43]-[44]In Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW[19] the question raised was whether a hearing was held “in private” as required by s.429 of the Migration Act. Weinberg J in his judgment made a few preliminary remarks about statutory construction:There has been a marked change in the approach to statutory construction over the past 30 years or so. The so-called ‘literal’ approach has been abandoned in favour of what is now often described as a purposive and contextual approach.60In Palgo Holdings Pty Ltd v Gowans (2005) 215 ALR 253 at 262, Kirby J set out “three interpretive principles: that he regarded as governing modern statutory interpretation: ‘purpose’, ‘context’ and the greater regard now had to extrinsic materials.61In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 410 at 424, McHugh JA, as his Honour then was, observed that a search for the grammatical meaning of the words in the statute ‘still constitutes the starting point’. His Honour noted, however, that if that meaning did not give effect tot the purpose of the statute, it could not prevail. It had to give way to the construction that would promote the purpose or object of the Act. So much is clear, in any event from s 15AA of the Acts Interpretation Act 1901 (Cth).62Of course, the form of purposive construction required by s 15AA provides no ‘warrant for redrafting legislation nearer to an assumed desire of the legislature’: Comcare v Thompson (2000) 100 FCR 375 at [40] per Finn J…[19] (2005) 145 FCR 523; [2005] FCAFC 154His Honour went on to warn:It goes without saying that this focus upon a purposive approach does not authorise the courts to legislate a meaning to promote the purpose or object underlying a statute unless that meaning can properly be discerned from the words of the Act itself.[20][20] (2005) 145 FCR at 523As to the use of extrinsic materials, in CIC Insurance Limited v Bankstown Football Club Limited[21] Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ held:It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.[22][21] (1995-1997) 187 CLR 384[22] (1995-1997) 187 CLR 384 at 408The decision of the High Court in Project Blue Sky v Australian Broadcasting Authority[23] urges a purposive approach to statutory interpretation:Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.[24][23] (1998) 194 CLR 355 [24] (1998) 194 CLR 355 at [71]Mr Johnson submits that the question to be asked is “What is the meaning of a word in this statutory context?” That, he submitted, is a question of law.ConclusionsI am satisfied from the above authorities that the words of clause 300.214 have to be interpreted in their legislative context, and the meaning to be given to the word “met” is plainly that which will promote its purpose or object. The true meaning of cl.300.214 is a question of law (see An v Minister for Immigration and Citizenship at [83]).To consider the use of the word “met” in its statutory context, it is useful to consider extrinsic material (see Chang v Laidley Shire Council at [44]; CIC Insurance v Bankstown Football Club at 408; Acts Interpretation Act, s.15AB). It is permissible, and indeed useful, to consider the explanatory statement for Migration Regulations (Amendment)1996 no 211 (SR211 of 1996) (previously quoted):Subregulation 118.3 amends clause 300.214 by substituting a clause that requires that the parties to the proposed marriage have met and are known to each other personally. The purpose of this amendment is to curtail abuse of the previous provision for arranged marriages. Again, the Court considers the legislative history of the provision (Chang v Laidley Shire Council at [44]). The now-superseded wording of cl.300.214 was:Unless the marriage has been arranged in accordance with traditional custom observed by the family of either or both of the parties, the parties are known to each other personally. For the Minister, it is submitted that the requirement for the parties to have met must mean meeting physically, face-to-face, in order to achieve the purpose of the clause, which is to curtail abuse of the previous provision for arranged marriages. However, it does not follow that the meaning of meeting face-to-face is necessary to prevent the abuse of the previous provision for arranged marriages. In my view, it can be argued that meeting by internet or video telephony is at least as effective way for parties to meet and form an opinion about each other’s compatibility as a future marriage partner as the current phenomenon of “speed dating”. The face-to-face meeting for five or so minutes in speed dating would meet the definition of “met” argued by counsel for the Minister, but a lengthy series of conversations over “Skype”[25] would not. [25] A software program that allows people to make free calls to others over the Internet for an unlimited period.I am satisfied that the Tribunal did not fall into error when it found that it was satisfied that the ordinary meaning of the words “met and known to each other personally” did not exclude non physical person-to-person interactions. As there is no jurisdictional error, it follows that the Tribunal decision is a privative clause decision and orders in the nature of certiorari and mandamus are not available.The application will be dismissed with costs.I certify that the preceding fifty-two (522) paragraphs are a true copy of the reasons for judgment of Scarlett FMAssociate: S.PolleyDate: 10 March 2008

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.