Nguyen v MICMSMA
[2020] FCCA 2705
•2 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2705 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Child (Migrant) (Class AH) visa – whether on the proper construction of reg.1.05A(1)(a)(ii) of the Migration Regulations 1994 (Cth) it was open to the Tribunal to assess as a single source of financial support to a person claiming to be dependent on another person the financial support provided by two family members for the purpose of determining whether the dependent’s reliance on the other person for support was greater than her dependence on any other financial support on which the dependent relied – open to the Tribunal to so assess – whether if not open to the Tribunal to so assess whether its doing so was material to the decision it made – not material – whether the provision of rent free accommodation constitutes “financial support” – it does – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2(2), 23(b) Migration Act 1958 (Cth), ss.5CA, 476 Migration Regulations 1994 (Cth), regs.1.03, 1.04, 1.05A, Schedule 2, cl.101.211(1) |
| Cases cited: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 |
| First Applicant: | THI THU HA NGUYEN |
| Second Applicant: | PHUONG BAO TRAM NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1833 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 April 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder, by video |
| Solicitors for the Applicant: | Janice Vu & Associates |
| Counsel for the First Respondent: | Mr T Reilly, by video |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1833 of 2017
| THI THU HA NGUYEN |
First Applicant
| PHUONG BAO TRAM NGUYEN |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal) made a jurisdictional error in affirming the decision of a delegate of the first respondent (Minister) not to grant the second applicant a Child (Migrant) (Class AH) visa (Child visa) because it misconstrued or misapplied the expression “source of support” as that expression appears in reg.1.05A(1)(a)(ii) of the Migration Regulations 1994 (Cth) (Regulations).[1]
[1] As the Regulations applied on 18 November 2014, being the day on which the applicants applied for a Child visa.
To see how this question arises, it will be necessary to set out the grounds on which the application for the Child visa was made, the evidence that was given before the Tribunal, and the Tribunal’s reasons for concluding the second applicant is not a “dependent child”.
Background
On 18 November 2014 the first applicant (Sponsor) applied for the grant of a Child visa to the second applicant (visa applicant). The Sponsor is a citizen of Vietnam. She migrated to Australia on 20 February 2013 and, on 5 August 2014, was granted a subclass 100 Partner visa.
To have been entitled to the grant of a Child visa the visa applicant had to satisfy, among other things, cl.101.211(1) of Schedule 2 to the Regulations, which relevantly requires that an applicant for such visa:
(a) is a dependent child of:
. . .
(ii) the holder of a permanent visa
. . . . and
(b)subject to subclause (2) [which is not relevant], has not turned 25; and
(c)either:
(i) is:
. . . ; or
(ii)was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
“Dependent child” of a person is defined in reg.1.03 of the Regulations:
dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i)is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
“Child” is defined in s.5CA of the Act to mean “someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act)”, and “someone who is an adopted child of the person within the meaning of” the Act.[2] Reg.1.04 of the Regulations prescribes the circumstances in which one person (adoptee) is taken to have been adopted by another person. These include where the other person assumed a parental role in relation to the adoptee under “formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before these arrangements took effect ceased to be so recognised and the adopter became so recognised”.
[2] The definition contained in s.5CA of the Act applies to the Regulations because of s.13(1)(c) of the Legislation Act 2003 (Cth), which provides: “If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears . . . any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.”
Particularly relevant to the question I must determine is the definition of “dependent” given in reg.1.05A(1) of the Regulations which, relevantly, is as follows:
. . . a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter;
. . . .
In her application for the Child visa, the Sponsor stated she had adopted the visa applicant as her child. The Sponsor provided a copy of a document headed “Decision on Adoption” issued by a city’s “People’s Committee of Ward 1” dated 4 May 2011.[3] The document records that the People’s Committee recognises the Sponsor to be the adoptive mother of the visa applicant. It also records that the visa applicant was born in 1998.
[3] CB75
The delegate interviewed the visa applicant’s biological mother on 26 January 2016 and the Sponsor on 8 April 2016. According to the delegate’s decision record, the Sponsor and the visa applicant’s biological mother told the delegate the Sponsor had cared for the visa applicant since the visa applicant was one years old. The Sponsor and the biological mother also gave evidence about the reasons the Sponsor decided to look after the visa applicant; why the Sponsor decided to adopt the visa applicant when she did; where the visa applicant had resided with the Sponsor before the Sponsor migrated to Australia; and the financial support the Sponsor provided to the visa applicant after the Sponsor migrated to Australia.
The delegate refused to grant the visa on 20 July 2016.
Before the Tribunal
The Sponsor, through her lawyer, provided to the Tribunal documents that were said to be evidence of the visa applicant’s dependency on and relationship with the Sponsor. These included documents evidencing payments the Sponsor made to Vietnam from 21 July 2013 until 23 April 2017 totalling $8,222.[4] Before the Tribunal the Sponsor gave evidence that included the following:
a)The Sponsor sends money to the visa applicant “[f]or her to . . . live and to study”;[5] she had been giving amounts of $200, $300, $400, and after she entered university, $500 per month.[6]
b)From 2013 to 2015 the Sponsor also sent money to her younger sister (aunty).[7]
c)The visa applicant lives in a home owned by the aunty and the Sponsor’s mother (grandmother).[8]
d)The Sponsor is the one who looks after the visa applicant financially “for everything, for food and accommodation”;[9] and the money the Sponsor sends to the visa applicant is “for her expenses for food, for expenses, for books . . . [and] clothing”.[10]
e)There is “no financial thing” between the visa applicant and her relatives; the aunty and the grandmother do not give the visa applicant any money;[11] and the visa applicant does not contribute anything towards the accommodation and food provided to her by the aunty and the grandmother,[12] although the money is for the visa applicant to spend on breakfast.[13]
f)The Sponsor made two trips to Vietnam, once in August 2015, and once in January 2017, and on each occasion she left $5,000;[14] on each trip the Sponsor left some money “to my mother – to my younger sister”;[15] and the Sponsor left the money to the aunty to give money to the grandmother “to take care of the food aspect for” the visa applicant.[16]
g)The visa applicant keeps the money “separately” and “in cash”; she uses the cash for books, clothes, birthday parties, “drinking outside”, eating out, and eating at university when she studies late.[17]
h)In response to the Tribunal’s suggestion that the visa applicant was dependent on the Sponsor only for her clothing, but not for shelter and maybe not for food, the Sponsor said “everything depends on me”,[18] and she is “the one … looking after her for everything since she was one year old until now”.[19]
[4] Applicants’ Outline of Submissions, [12] and references to CB included in that paragraph.
[5] T9.20 (A transcript of the hearing before the Tribunal is annexed to the affidavit of W. David made on 6 November 2017)
[6] T10.45
[7] T13.5
[8] T9.25
[9] T9.25
[10] T9.35
[11] T9.40
[12] T10.15; T11.5
[13] T10.5
[14] T12.50
[15] T10.5
[16] T10.20
[17] T12.35
[18] T13.25
[19] T13.35
The visa applicant also gave evidence, which included the following:
a)The visa applicant lives and has been living with the grandmother and the aunty since she was one years old.[20]
b)The visa applicant keeps the money the Sponsor sends to her; she does not give any of it to the aunty or the grandmother to help them with her living expenses; and the visa applicant uses the money for her study, expenses, food, going out, and for friends.[21]
c)The visa applicant sometimes eats at home, and sometimes out;[22] she does not contribute towards the rent or household expenses or bills, these being paid by the grandmother and the aunty;[23] the Sponsor, however, made contributions: “my mother went to Vietnam to visit me twice and each trip my mother would give to my aunty $5,000”.[24]
d)The grandmother is the owner of the property;[25] and the grandmother does not work or receive a pension.[26]
[20] T16.25
[21] T16.30-40
[22] T16.50
[23] T17.15
[24] T17.25
[25] T17.45
[26] T18.5
After the visa applicant completed her evidence, the Tribunal asked the Sponsor whether “[t]he $5,000 that . . . you say you gave to your mother and your sister” was in cash. The Sponsor said it was; she said she “brought the money back there and I give it to them”. The Tribunal asked whether the Sponsor had a bank record showing the Sponsor took the money. The Sponsor said she will “try and get [the evidence]”.[27] The Tribunal then put to the Sponsor a number of concerns it had. The Tribunal said:[28]
I need to be satisfied that your daughter is dependent on you, and dependence means financial dependence for food, shelter and clothing. I also need to be satisfied that her dependence on you is greater than her dependence on anyone else. So from what I understand, the money that you are sending to your daughter regularly is being used for her tuition and her going out and sometimes for food and basically her own expenses, but she doesn’t . . . give that money to . . . her grandmother and her aunt. . .
You say you’ve given $5,000 to your mother and your sister, I have no evidence of that, but even if I accept that I don’t know what that money goes towards. I don’t know how much in savings your mother has and I don’t know how much income your sister has and I don’t know how much of that is being contributed towards your daughter’s living expenses. Your daughter lives in a house that’s owned by your mother and your sister, so even if you contribute to household expenses, her dependence is on your mother and your sister more than her dependence on you in terms of shelter. I’m also not sure . . . whether her… dependence on you for food is greater than her dependence on her grandmother. So the question for me is whether your daughter is dependent on you, and that means her reliance on you for food, shelter and clothing is greater than her reliance on her grandmother for example, or her aunt.
[27] T19.20
[28] T19.20-45
In response to the Tribunal’s asking the Sponsor whether she wanted to say anything about these matters, the Sponsor said she is “wholly responsible for her financially, 100% since she was one years old until now”.[29]
[29] T19.45
After the hearing the Sponsor’s lawyer sent an email to the Tribunal attaching what the email stated are “Bank Statements for the period of 2016 indicating the [Sponsor] withdrew money from her account to take to Vietnam to assist the Visa Applicant’s basic daily needs”.[30] What was attached is a single document that appears to be a copy of parts of separate documents.[31] The document contains the words “Transaction listing” under which there is the name of the account (“GoalSaver”), the account number, the name and address of the Sponsor, the words “As at 5:12 PM 8/05/2017”, and the balance of the account ($275.33). Next, there is the following:
[30] CB254
[31] CB255
Date
Transaction details
Amount
Total
03 Aug 2016
Wdl Branch Cabramatta
-$7,500.00
+$36,106.32
22 Apr 2016
Wdl Branch Wfield Lvrpool
-$7,000.00
+$27,668.61
There are no more transactions to display.
In his email, the Sponsor’s lawyer stated he has been instructed that in August 2016 the Sponsor “withdrew about $7,500”; she used this money to buy gifts for the visa applicant and “the remaining money of $5,000 she kept to bring back to Vietnam to give to [the aunty] to pay for the child’s basic needs such as food, clothes and shelter”. The Sponsor’s lawyer’s email also attached what he described as “confirmation from [the aunty] confirming her income is very low hence she cannot provide for the child’s basic needs”.
Tribunal’s reasons
The Tribunal accepted the visa applicant is the child of the Sponsor and was “dependent” on the Sponsor at the time the Sponsor lodged the application for a Child visa because the visa applicant was then less than 18 years of age. By the time the Tribunal came to consider the review, however, the visa applicant had turned 18 years of age; and the question the Tribunal was required to consider is whether the visa applicant is dependent on the Sponsor within the meaning of reg.1.05A(1)(a) of the Regulations.
The Tribunal accepted or found that the Sponsor transferred the money the Sponsor claimed she had transferred to Vietnam; the visa applicant lives with the grandmother and the aunty; the visa applicant does not pay for accommodation; the visa applicant does not contribute the money she receives from the Sponsor towards the household expenses, but instead uses the money to meet her own daily expenses, including some meals, clothing, outings, and tuition fees; and the Sponsor brought money for the visa applicant during her trips to Vietnam.[32]
[32] CB272-273, [13]-16]
The Tribunal found, however, that the evidence indicates the visa applicant “relies on her relatives in Vietnam for shelter and at least partly for food”; and that the evidence “does not establish that the visa applicant is reliant on the [S]ponsor for food, shelter and clothing and that such reliance on the [S]ponsor is greater than her reliance on other sources”.[33] The Tribunal:
a)found that, at best, the Sponsor “makes some contribution to the payment of the visa applicant’s expenses towards shelter, such as contribution to amenity bills, with the money she brought to Vietnam”;[34]
b)found there is little evidence of the contributions the grandmother and the aunty make towards the visa applicant’s living expenses and, for that reason, the Tribunal was not satisfied the visa applicant’s reliance on the Sponsor for shelter is greater than her reliance on “the grandmother and the aunt” for shelter;[35]
c)found that, although the Tribunal was prepared to accept that some of the money the Sponsor brought to Vietnam could have been used for food, given what the Tribunal found was the limited evidence of income and contributions made by the “grandmother and aunt”, it was not satisfied the visa applicant’s reliance on the Sponsor for food is greater than her reliance on other sources, such as “her grandmother and aunt”; and[36]
d)accepted the visa applicant relies on the Sponsor for other expenses, including tuition fees, clothing, outings, and other daily needs; but the Tribunal was of the view that the issue of dependence is limited to food, clothing and shelter; and the definition of “dependence” requires dependence on all three elements and, for that reason, even if the visa applicant depended on the Sponsor for clothing, but not for food or shelter, the definition of “dependence” would not be met.[37]
[33] CB273, [16]
[34] CB273, [17]
[35] CB273, [17]
[36] CB273, [18]
[37] CB273, [19]
The Tribunal expressed its ultimate conclusion on whether the visa applicant was a “dependent” within the meaning of r.1.05A(1)(a) of the Regulations as follows:[38]
The Tribunal accepts that the review applicant has been providing financial support to the visa applicant and has given money to the family to contribute to the visa applicant’s expenses but on the limited evidence before it, the Tribunal is not satisfied that at the time of this decision, and for a substantial period before this time, the visa applicant’s reliance on her mother for financial support to meet her basic needs for food, shelter and clothing and [sic] is greater than her reliance on any other source of support. The Tribunal is not satisfied the visa applicant meets paragraph (a) of the definition of ‘dependent’ in r. 1.05A.
[38] CB273-274, [21]
Ground 1
The Sponsor and visa applicants (applicants) rely on two grounds of review. Ground 1 is as follows:
The second respondent misconstrued the meaning of the phrase “source of support” in regulation 1.05A(1)(a)(ii) of the Migration Regulations 1994 (regulations).
Particulars
(a)Regulation 1.05A(1)(a)(ii) relevantly required the second respondent to make a determination of whether the second applicant’s reliance on the first applicant was “greater than any reliance … on any other … source of support, for financial support to meet the [second applicant’s] basic needs for food, clothing and shelter. This, in turn, required the second respondent to measure the second applicant’s reliance on the first applicant, as against any other source of support for the relevant needs.
(b)In the circumstances of the present case, other than the first applicant, there were two possible other sources of support; namely, the second applicant’s grandmother and aunt.
(c)On the evidence before the second respondent, the nature and support which might have been provided by the second applicant’s grandmother and aunt were not identical, nor was such support provided jointly (for example only the grandmother provided shelter to the second applicant).
(d)The second respondent erred by measuring the second applicant’s reliance on the first applicant as against the second applicant’s grandmother and aunt, jointly. The second respondent ought to have measured such reliance against the second applicant’s grandmother and aunt as separate sources of support.
Parties’ submissions
The applicants submit that reg.1.05A(1)(a)(ii) of the Regulations required the Tribunal to identify with precision the person, or source, who or which provided the greatest amount of support to the visa applicant; but the Tribunal failed to do this because it treated the grandmother and the aunty as a single source of support.[39] The applicants, relying on the Full Federal Court judgment in Vo v Minister for Home Affairs,[40] in effect submit that, on its proper construction, “source of support” in reg.1.05A(1)(a)(ii) of the Regulations means a single source of support. On this construction, if the person (first person) who is said to be dependent on another person (Other Person) has two or more sources of support in addition to the support given by the Other Person, whether the first person’s reliance on the Other Person is greater than the first person’s reliance on any “other person, or source of support” must be assessed only by reference to each source of support considered on its own, not by aggregating the two or more other sources of support.
[39] Applicants’ Outline of Submissions, [32]
[40] Vo v Minister for Home Affairs [2019] FCAFC 108, particularly at [18]
The Minister, on the other hand, submits that “any other person” and “source of support” should, by the application of s.2(2) and s.23(b) of the Acts Interpretation Act 1901 (Cth), and s.13(1)(a) of the Legislation Act 2003 (Cth) be read as including “persons” and “sources”. Additionally, or alternatively, the Minister submits that “source of support” is broad enough to capture support given by two or more persons, provided that support could in substance be viewed as a single source of support.[41]
[41] First Respondent’s Written Submissions, [20]
Issues
On these two competing submissions, the following questions arise.
a)On the proper construction of the reg.1.05A(1)(a)(ii) of the Regulations, is it ever permissible to measure the first person’s reliance on the Other Person for financial support by reference to the aggregate of the first person’s reliance on two or more other sources of financial support from “any other persons”? If so, in what circumstances?
b)However (a) is answered, did the Tribunal compare or seek to compare the extent of the visa applicant’s reliance on the Sponsor by reference to the aggregate of the support the grandmother and the aunty provided to the visa applicant?
Construction of “source of support”
As I have noted, the applicants rely on Vo for the construction for which they contend. Before I consider the judgment in Vo, however, it would be useful if I make a number of observations about the text of subparagraph (ii) of reg.1.05A(1)(a) of the Regulations.
a)First, subparagraph (ii) assumes the matters identified in subparagraph (i) are satisfied to the extent that, at the relevant time, the first person is, and has been for a substantial period immediately before the relevant time, substantially reliant on the Other Person for financial support to meet the first person’s basic need for food, clothing and shelter (financial support). If at the relevant time the first person is and, for a substantial period of time, has been wholly reliant on the Other Person, subparagraph (ii) would not apply. Similarly, if the first person is not at the relevant time, and has not been for a substantial period immediately before the relevant time, wholly or substantially reliant on the Other Person, paragraph (a) would not be satisfied and paragraph (a), therefore, would be incapable of being satisfied.
b)Second, subparagraph (ii) will apply only if the first person relies for financial support on someone or something in addition to the Other Person. If subparagraph (i) has been satisfied, and the first person relies only on the Other Person for financial support, paragraph (a) of reg.1.05A(1) will be satisfied.
c)Third, subparagraph (ii) uses the words “any other person, or source of support” to identify the things on which the first person must rely for financial support before subparagraph (ii) can apply. Two things are identified: “any other person”; that is, a person other than the Other Person; and “source of support”. If financial support given by a person may properly be characterised as a “source of support”, “source of support” in subparagraph (ii) must be qualified by the words that qualify “person”, namely, “any other”. That means there are one of two things, in addition to the Other Person, on which the first person must rely for financial support before subparagraph (ii) can apply; and these are “any other person”, or “any other . . . source of support”.
d)Fourth, “any other person” denotes any person, except the Other Person, on whom the first person relies for financial support. The words “any other” in subparagraph (ii) contemplate it could be more than one person. If there is only one other person, subparagraph (ii) will be satisfied if the first person’s reliance on the Other Person is greater than the first person’s reliance on the “other person”. If there are two or more “other persons” on whom the first person relies for financial support, subparagraph (ii) will be satisfied if the first person’s reliance on the Other Person is greater than the first person’s reliance on any (one) of the other persons on whom the first person relies for financial support.
Finally, there are the words “any other . . . source of support”. The use of “or” after “any other person” suggests that the support intended to be covered by “any other . . . source of support” is financial support whose source is not “any other person”. Counsel for the applicants submits that “any other person” is to be construed as support provided by a human being, and “any other . . . source of support” is to be construed as any non-human source. I do not accept that submission. Financial support entails a transaction between legal persons; and if the regulation intended to distinguish between natural and artificial legal persons (such as corporations), it is reasonable to expect it would have done so expressly.[42]
[42] Section 2(C) of the Acts Interpretation Act 1901 (Cth) provides that “expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual”.
In my opinion, the distinction subparagraph (ii) draws is between, on the one hand, a person – a single natural or artificial legal person - who provides financial support and, on the other, arrangements by which two or more persons collectively provide financial support to another person. Families are an obvious example. A family is not a separate legal entity; but in most cases families operate as single economic units. Members of the family who hold assets and earn income pool their resources to provide support for food, clothing and shelter to themselves and to other members of the family who do not hold assets, or who do not or cannot earn income to acquire food, clothing and shelter for themselves. Thus, “any other . . . source of support” denotes support provided by two or more persons acting collectively in providing financial support for food, clothing and shelter to the first person.
Apart from the text of subparagraph (ii), this construction is supported by two considerations. First, financial support for a person’s needs for food, clothing and shelter in the case of children is almost invariably provided through family units; and, in the case of adults, is often enough also provided through family units. It is therefore reasonable to expect that a provision such as reg.1.05A(1)(a), concerned as it is with identifying a person’s reliance on financial support for food, clothing and shelter, would include financial support provided by families. Second, to construe “any other . . . source of support” in the manner for which the applicants contend would add complexity to the operation of reg.1.05A(1)(a). If in addition to the Other Person the first person relies on a family for financial support, the first person would have to disentangle the contributions each member of the family makes. Given the pooling of resources and informal nature of financial transactions within a family, that is likely to prove difficult, at least in many cases. It is true the difficulty could be avoided if the support provided through a family unit considered as a whole is less than the support provided by the Other Person, in which case it would necessarily be inferred that the support of each individual member is less than the support provided by the family as a whole and, therefore, less than the support provided by the Other Person. But that would require the assessment of support provided by the family unit in the first place, the very thing which, on the applicants’ construction, reg.1.05A(1)(a)(ii) does not permit.
I now turn to Vo to consider whether that should lead me to a different construction of “any other . . . source of support”. In Vo the Tribunal was not satisfied Ms Vo was a dependent of her son. The Tribunal relied on Ms Vo’s having spent 24% of her time after she first arrived in Australia away from Australia, a period of time the Tribunal found to be not insubstantial; and a finding that, while in Vietnam, Ms Vo did not wholly or substantially rely on her son for support. The Tribunal did not make a finding about whether, when in Australia, Ms Vo wholly or substantially relied on her son. Instead, the Tribunal “approached the matter on the basis that its findings to the effect that there was a ‘not insubstantial’ amount of time when Ms Vo was in Vietnam and not reliant on her son meant that she was not dependent upon” her son.[43] The Full Federal Court found the Tribunal reasoned in this way because the Tribunal applied its view that “reg 1.05A can only be satisfied if the person is dependent on one person”.[44] The Full Federal Court found that this view is incorrect.[45]
[43] Vo v Minister for Home Affairs [2019] FCAFC 108, [11]
[44] Vo v Minister for Home Affairs [2019] FCAFC 108, [11]
[45] Vo v Minister for Home Affairs [2019] FCAFC 108, [12]
A finding that it is wrong to construe reg.1.05A of the Regulations as being capable of being satisfied only if the first person is dependent on one person necessarily implies that reg.1.05A can be satisfied if a person is dependent on two or more persons. That implication, however, cannot withstand the language of reg.1.05A; and that is because the text of the regulation refers to the circumstances in which one person - the first person – is a dependent of a single other person – the Other Person. That could only be one person – the Other Person. That suggests that the incorrect view the Full Federal Court found the Tribunal held and applied was that a first person’s being supported by two or more “other persons” in addition to the Other Person necessarily means that the first person cannot be a dependent on the Other Person.
That this is the view the Full Federal Court must have found the Tribunal incorrectly held is apparent from the construction it gave to reg.1.05A, which is to be found in the following passage of the Full Federal Court’s judgment:[46]
Substantial reliance may be placed upon a number of people each of whom may provide some financial support in order to meet basic needs for food, clothing and shelter. By the terms of para (a)(ii), reg 1.05A directs attention to identifying the person who provides the greatest amount of such support. It is only that person who is a person upon whom a person may be dependent for the purposes of the Migration Regulations (where the regulation uses the term ‘dependent’).
For all those reasons, a necessary conclusion from the terms of reg 1.05A considered in context is that ‘substantial reliance’ for financial support does not mean 'predominant or primarily', ‘essentially’ or ‘in the main’. The submissions for the Minister that the words ‘wholly or substantially reliant’ in para (a)(i) should be read, in effect, as meaning only reliant on one other person to the exclusion of any other (even if not wholly reliant on that other person), alternatively at least reliant to an extent that is more than 50% should be rejected.
[46] Vo v Minister for Home Affairs [2019] FCAFC 108, [18], [19]
The first of the two paragraphs of this passage – being the passage on which the applicants particularly rely - only refers to reg.1.05A directing attention to “the person who provides the greatest amount of such support”. That is the effect of my construction of reg.1.05A(1)(a)(ii) as it applies to “any other person”. That is, if there are two or more “other persons” on whom the first person relies for financial support, subparagraph (ii) will be satisfied if the first person’s reliance on the Other Person is greater than the first person’s reliance on any one of the other persons on whom the first person relies for financial support.
The passage from the Full Federal Court’s judgment, however, does not construe the words “any other . . . source of support”. The applicants submit, however, that the effect of Vo is that reg.1.05A(1)(a)(ii) requires that there be identified a single person or single other source of support. I accept that, even though the Full Federal Court in Vo does not construe “any other . . . source of support”, the consequence of its construction of “any person” as directing “attention to identifying the person who provides the greatest amount of such support” is that “any other . . . source of support” directs attention to identifying the source that provides the greatest amount of such support. In other words, I accept the effect of Vo is that the first person’s reliance on the Other Person for support must be measured by reference to the financial support provided by a single person or by a single “other . . . source of support”. That, however, does not mean that a single “other . . . source of support” must be a single person. To so construe “other . . . source of support” would deny it any effect, because that construction would treat each person who collectively provides support as “any other person”.
I conclude, therefore, that “any other . . . source of support” in reg.1.05A(1)(a)(ii) of the Regulations denotes support provided by two or more persons acting collectively in providing financial support for food, clothing and shelter to another person. That is the construction implicit in the Minister’s alternative submission. The Tribunal, therefore, did not make any jurisdictional error to the extent it aggregated the contributions of the grandmother and the aunty when determining whether the visa applicant’s reliance for financial support on the Sponsor was greater than her reliance on the support provided by the grandmother and the aunty.
Did the Tribunal approach its task on the basis of aggregating contributions?
I accept the applicants’ submission that, when considering whether the visa applicant’s reliance on the Sponsor for financial support to meet her needs for food, clothing and shelter was greater than her reliance on the support she did receive from the grandmother and the aunty, the Tribunal viewed the contribution of the grandmother and the aunty jointly. That is apparent from the language the Tribunal used in its findings. The Tribunal was not satisfied the visa applicant’s reliance on the Sponsor for shelter is greater than her reliance on “the grandmother and the aunt” for shelter;[47] and the Tribunal was not satisfied the visa applicant’s reliance on the Sponsor for food is greater than her reliance on other sources, such as “her grandmother and aunt”.[48] Given my construction of “any other . . . source of support” in reg.1.05A(1)(a)(ii) of the Regulations, however, the Tribunal made no jurisdictional error by proceeding in this way.
[47] CB273, [17] (emphasis added)
[48] CB273, [18] (emphasis added)
Materiality
The Tribunal found there was little evidence of the contributions the grandmother and the aunty make and have made towards the visa applicant’s living expenses; and it also found there was limited evidence of income and contributions the grandmother and the aunty make and have made. Those findings prevented the Tribunal from making a finding about the financial support the grandmother and the aunty make and have made towards the visa applicant’s needs for food, clothing and shelter. That, in turn, prevented the Tribunal from being in a position to determine whether the visa applicant’s reliance on the financial support of the Sponsor is and has been greater than her reliance on the grandmother and the aunty.
The applicants do not contend that by considering together the contributions the grandmother and the aunty made they were deprived of a real chance that the Tribunal would have been able to determine the extent of the contributions each of the grandmother and the aunty made and, on the basis of those determinations, be in a position to determine whether the visa applicant’s reliance on the Sponsor is and has been greater than her reliance on any of the grandmother or the aunty. It is difficult to see how any such submissions could reasonably be made.
The Tribunal’s findings about the limited evidence of the contributions that was before it were directed to both the grandmother and the aunty. Even if, therefore, the Tribunal approached its task on the footing that it was required to identify the separate contributions each of the grandmother and the aunty had made, the Tribunal would have been confronted with what it found was the limited evidence of the contributions the grandmother and the aunty had made; and it would have found itself equally unable to determine what the contributions of each of the grandmother and the aunty were. That, in turn, would have prevented the Tribunal from being in a position to determine whether the visa applicant relied on the Sponsor more than she relied on any one of the grandmother or the aunty. Thus, I am not satisfied that, had the Tribunal approached its task in the manner the applicants contend it ought to have approached its task, that could realistically have resulted in the Tribunal making a different decision.[49]
[49] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
Conclusion
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows:
The second respondent misconstrued the meaning of the term “for financial support” in regulation 1.05A(1)(a)(ii) of the regulations.
Particulars
(a)Regulation 1.05A(1)(a)(ii) relevantly required the second respondent to assess the second applicant’s reliance on the first applicant or another source of support, “for financial support” to meet her basic needs for shelter.
(b)On the facts, the only source of support for the second applicant’s basic needs for shelter was the applicant’s grandmother, with whom the second applicant lived.
(c)The circumstances of the applicant’s residence with her grandmother did not involve any financial element. On the evidence, the applicant merely lived with her grandmother because this was her family home.
(d)The second respondent erroneously attributed a financial element to the applicant’s residence with her grandmother, when, on the evidence, no such aspect existed.
In their written submissions the applicants submit there was no financial element in the grandmother’s permitting the visa applicant to live in the grandmother’s house; and there was no financial element because “no money changed hands”, and there is no evidence that the subject of rent was raised with the visa applicant.[50] The visa applicant simply lived with the grandmother, which was her family home. The Minister, on the other hand, submits ground 2 relies on an unduly narrow construction of “financial”.[51]
[50] Applicants’ Outline of Submissions, [36]
[51] First Respondent’s Written Submissions, [22]
Paragraph (a) of reg.1.05A(1) refers to the first person’s basic needs for food, clothing and shelter. Such needs can only be met by the acquisition of food, clothing and shelter; and such acquisitions can only be obtained through transactions in which money is exchanged for the food, clothing and shelter. In that context, “financial support” simply refers to doing that which relieves the first person from having to pay all or part of the price for the food, clothing and shelter that the first person requires to meet his or her basic needs for these items. That may involve the transfer of money from the person on whom the first person relies to the first person, but in most cases it would not. It will usually consist of the direct provision of food, clothing and shelter to the first person. That no money may be exchanged for the provision of food, clothing and shelter to the first person however, would not deny their provision to the first person the character of “financial support”; and that is because the first person would be relieved of the need to have to pay for these items. That is, providing economic goods without payment is financial support.
These observations apply to the first person’s living in another person’s house, including the house of a family member. There is a cost to acquiring shelter; and if a person provides that shelter without expecting any payment, that constitutes financial support for the meeting of the basic need for shelter because the first person would be relieved of the need to pay for shelter. The Tribunal, therefore, made no jurisdictional error to the extent it treated as financial support the grandmother’s permitting the visa applicant to live in her house without any payment.
Ground 2, therefore, also fails.
Conclusion and disposition
The applicants have failed on the two grounds on which they rely. I propose, therefore, to order that the application be dismissed. At the hearing counsel for the parties agreed that costs should follow the event. In an email sent to my Associate on 22 April 2020, the Minister’s lawyers said that if the Minister were to succeed he would seek an order that his costs be set in the amount of $5,500. I am satisfied it is appropriate that the Minister’s costs be set in that amount. I also propose, therefore, to order that the applicants pay the Minister’s costs set in the amount of $5,500.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 2 October 2020
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