Nguyen v MICMSMA
[2020] FCA 1732
•30 November 2020
FEDERAL COURT OF AUSTRALIA
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1732
Appeal from: Nguyen v Minister for Immigration & Anor [2019] FCCA 3317 File number: QUD 779 of 2019 Judgment of: REEVES J Date of judgment: 30 November 2020 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – where the Tribunal affirmed a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refusing the appellant’s application for a Subclass 836 (Carer) visa – where the appellant was sponsored by her sister under cl 836.213 of the Migration Regulations 1994 (Cth) – whether the residency criteria prescribed by cl 836.213 required the appellant and sponsor to be “usually resident” in the same household – whether the primary judge erred in finding that the Tribunal had not fallen into jurisdictional error – appeal allowed Legislation: Acts Interpretation Act 1901 (Cth)
Migration Amendment Regulations 2002 (No. 2) (Cth)
Migration Regulations 1994 (Cth)
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 16 June 2020 Counsel for the Appellant: Mr L Boccabella Solicitor for the Appellant: T Lawyers Counsel for the First Respondent: Mr AG Psaltis Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
QUD 779 of 2019 BETWEEN: THI VE NGUYEN
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
REEVES J
DATE OF ORDER:
30 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the Federal Circuit Court of Australia on 21 November 2019 are set aside.
3.The appellant’s application is remitted to the Federal Circuit Court of Australia to be heard and determined according to law.
4.The first respondent pay the appellant’s costs of and incidental to this appeal to be taxed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
Ms Thi Hoa Nguyen is an Australian citizen. She is 93 years old and is bedridden with bilateral paraplegia. Since 2013, her daughter, Ms Thi Ve Nguyen, who is a Vietnamese citizen, has been caring for her mother in Vietnam and in Australia.
In May 2014, Ms Thi Ve Nguyen applied for a Subclass 836 (Carer) visa. At that time, her mother was living with Ms Thi Ve Nguyen’s sister, Ms Thi Huyen Nguyen, at an address in Forest Lake, a suburb of Brisbane. The refusal of that application has led to this appeal.
To avoid confusion stemming from the fact that the three Ms Nguyens have the same family name and first given name, in these reasons I will refer to each by her second given name. Hence, I will refer to Ms Nguyen, the appellant, as Ms Ve; to Ms Nguyen, the mother, as Ms Hoa; and Ms Nguyen, the sister and sponsor, as Ms Huyen.
PROCEDURAL HISTORY
This matter has a long and complex procedural history as follows. First, because Ms Ve did not supply a Sponsorship Form (Form 40) with her application, the Department of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) supplied one to her in October 2014. She completed and returned that form, nominating her sister, Ms Huyen, as the sponsor for her application.
On 17 October 2014, a delegate of the Minister refused Ms Ve’s application on the ground that the sponsor, Ms Huyen, was not ordinarily resident in the same household as Ms Hoa, her mother.
On 29 October 2014, Ms Ve sought a merits review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal).
On 23 February 2016, the Tribunal affirmed the delegate’s decision.
Ms Ve then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. On 28 February 2017, a judge of that Court ordered that the Tribunal’s decision be quashed.
The Minister appealed that judgment to this Court and, on 20 September 2017, his appeal was dismissed.
After reconsidering Ms Ve’s merits review application, the Tribunal again decided to affirm the delegate’s decision. That occurred on 18 December 2018.
On 15 January 2019, Ms Ve sought judicial review of the second Tribunal decision in the Federal Circuit Court of Australia.
On 15 November 2019, the primary judge dismissed that application.
THE TRIBUNAL’S DECISION
For the purposes of this appeal, the critical parts of the Tribunal’s decision were at [18], [19] and [40] of its decision record. First, the Tribunal concluded (at [18]) that the sponsor of a carer visa applicant had to be resident in the same household as the “Australian relative”, or person who is to be cared for, finding as follows:
Clause 836.212, a primary criterion to be satisfied at the time of application, requires that the applicant claims to be the carer of an Australian relative. As noted, Regulation 1.15AA(1)(b)(i) requires that the Australian citizen relative (being the resident or a member of the family unit of the resident) has a medical condition; Regulation 1.12(4)(d)(ii) defines as a member of the family unit a person who is usually resident in the family head’s household; and for the purposes of this application the resident referred to in the legislation is the sponsor.
Having reached that conclusion, the Tribunal then identified (at [19]) the two issues it needed to determine as follows:
… Firstly, whether the sponsor was living in the household of her mother, the person in need of care, at the time of application and therefore the applicant meets the carer definition in r.15AA(1)(b)(i) [sic – reg 1.15AA(1)(b)(i)]. If so, the second issue arises of whether assistance cannot be reasonably provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia (r.1.15AA(1)(e)).
Finally, after reviewing the information and materials before it, the Tribunal concluded (at [40]) that:
The Tribunal finds that the applicant was not usually resident in the same household as her mother at the time of application. Therefore cl.836.212 is not met.
THE FEDERAL CIRCUIT COURT JUDGMENT
After setting out the history of Ms Ve’s matter (at [1]-[9]), her grounds of review before the Court (at [10]) and the apposite provisions of the Migration Regulations 1994 (Cth) (the Regulations) (at [11]), the primary judge turned to consider the meaning of the expression “an Australian relative” as used in cl 836.212. His Honour then reached the following conclusions on that matter (at [13]-[14]):
13.The Court finds that the applicant was a “Carer” as defined in r. 1.15AA of the Regulations. The “person”, for the purposes of r. 1.15AA(1), was the Mother who:
•was an Australian citizen usually resident in Australia;
•was a close relative of the applicant;
•satisfied the criteria as set out in r. 1.15AA(1)(b) of the Regulations;
•satisfied the requirements of sub-regulations (ba), (c), (e) and (f) of r. 1.15AA(1).
14.Notwithstanding the concession made by Counsel for the [Minister] that a sponsor, in circumstances such as the present:
(a) had to be a person;
(b) had to be an Australian citizen; and
(c) had to be a relative of the applicant.
the Court finds that:
(d)though the applicant had claimed to be the carer of an Australian relative (namely the Mother) in compliance with cl. 836.212;
(e)the reference to “the Australian relative”, as referred to in cl. 836.213(a), could only be satisfied if that person – in this case the Sister – was a person who relevantly fell within the definition of “member of the family unit” in cl. 1.12 of the Regulations.
Thereafter, his Honour considered s 15AA of the Acts Interpretation Act 1901 (Cth) (at [15]-[17]) and concluded (at [18]) that:
However, the note to cl. 836.2 referred to the mandatory requirement that the primary criteria to be satisfied at the time of the making of the application must be satisfied by a person who was a member of “a family unit”. Clause 836.213 was unable to be satisfied. The sponsor was not usually a resident in the Mother’s household, nor was the applicant a dependent of the Mother as the word dependent is defined in r. 1.05A(1) of the Regulations …
(Emphasis in original)
Ultimately, his Honour concluded (at [28]) that Ms Ve had failed to establish jurisdictional error in the Tribunal’s decision and therefore dismissed her application with costs (at [29]-[30]).
GROUNDS OF APPEAL
Ms Ve filed her notice of appeal in this Court on 19 December 2019. It contained four grounds of appeal. Together with their supporting particulars, they are as follows:
1.The learned trial judge erred by misunderstanding and/or wrongly the applying the Note to Clause 836.2 of Schedule 2 to the Migration Regulations 1994, which reads:
836.2 Primary criteria
Note: The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
Particulars
(a)The Note has zero relevance to the interpretation of the subclass 836 Carer visa in this matter, because there was only one person applying for the visa i.e. the appellant;
(b)The Note is a common note written in exactly the same terms in almost all visa subclasses. Its purpose is merely to require that when a whole family is applying for that particular visa in the one visa application, only one member of the family need satisfy the primary criteria.
(c)There is a complementary ‘Note’ under the heading ‘836.3 Secondary criteria’ which reads:
836.3 Secondary criteria
Note: If any member of the family unit satisfies the primary criteria, the other members of the family unit are eligible for the grant of the visa if they satisfy the secondary criteria and their applications are made before the Minister has decided to grant or refuse to grant the visa to the first person.
(d)It follows that the ‘family unit’ referred to in the Note (indeed either Note) has no relevance to identifying who is a “member of the family unit of the resident” in Reg 1.15AA(1).
(e)The wrong interpretation of the ‘Note’ was part of the chain of reasoning by the trial judge, culminating in paragraph 18 of his reasons, hence the error of the trial judge is established.
2.The learned trial judge erred when he mistakenly thought that the [Tribunal] found the appellant did not meet cl 836.213 (paragraph 8 of his reasons) when in fact the [Tribunal] did not make any finding about compliance or non-compliance with cl 836.213. In consideration of cl 836.213, the trial judge was in error.
Particulars
(a)The learned trial judge found that the appellant was in ‘compliance’ with cl. 832.212 [sic – 836.212] (at the time of visa application), which reads:
836.212
The applicant claims to be the carer of an Australian relative.
(b)This meant that one error by the [Tribunal] in its decision at paragraph 40 was overcome.
(c)The learned trial judge then went on to misapply and/or wrongly interpret cl 836.213(a) when all the evidence before the [Tribunal] showed that the ‘sister’ (Thi Huyen Nguyen) was unequivocally the lawful and proper sponsor of the appellant. Both the [Tribunal] and the delegate at first instance took no issue with the fact that the appellant was lawfully and properly sponsored by the ‘sister’, neither the [Tribunal] nor the delegate found there was non-compliance with cl 836.213(a)), which reads:
[set out at [24] below]
(d)The reasoning by the trial judge around the application of cl 836.213(a) was erroneous.
3.The learned trial judge erred by misunderstanding the scheme of the criteria for the subclass 836 visa.
Particulars
(a)The key criteria is the time of visa decision criteria in cl 836.221[:]
836.22 Criteria to be satisfied at time of decision
836.221
The applicant is a carer of a person referred to in clause 836.212.
(b)Hence the time to determine whether the sponsor, the person to be cared for and the carer were living in the same household was at time of decision by the [Tribunal] (i.e. 18 December 2018);
(c)At 18 December 2018, there was no doubt whatsoever that the sponsor (Thi Huyen), the person to be cared for (Hoa Nguyen) and the carer (the appellant) were all living in the same household, namely [an address in Forest Lake, Brisbane) 8 (see paragraph 36 of the [Tribunal’s] reasons).
(d)The learned trial erred by failing to appreciate that the determination of whether the visa applicant was indeed the ‘carer’ had to be done at time of decision, not time of application. At time of application, cl 836.212 merely required that “The applicant claims to be the carer of an Australian relative” (a claim which was unequivocally, fully and properly set out in the visa application at page 739 of the Court Book before the Federal Circuit Court in the answers to questions 65 to 68).
4.Further and/or in the alternative, the learned trial judge erred in his consideration of the term ‘usually resident’ and failed to find that the [Tribunal] similarly erred in its consideration of whether the sponsor Thi Huyen Nguyen, was ‘usually resident’ at [the Forest Lake address], as at the date of the visa application on 28 May 2014.
Particulars
(a)Although the [Tribunal] made an adverse finding about the sponsor’s marital troubles (paragraph 31), the [Tribunal] did not go on to find that the sponsor did not spend weekends at the house at [the Forest Lake address] during the period around 28 May 2014;
(b)Yet the transcripts of the [Tribunal] hearing from lines 427 to 436, line 675, and paragraphs 13 and 14 of the sponsor’s statutory declaration (Federal Circuit Court, Court Book page 348) was evidence that, irrespective of whatever was going on with the sponsor’s husband, the sponsor, Thi Huyen Nguyen, spent periods overnight at [the Forest Lake address], particularly on the weekends.
(c)Both the learned Federal Circuit [Court] judge and the [Tribunal] misapplied the meaning of ‘usually resident’ by setting the bar too high as to what amounts to ‘usually resident’, especially in the context of a carer visa.
(d)In the premises both the learned trial judge and the [Tribunal] erred in interpreting the term ‘usually resident’ and therefore did not make proper factual findings regarding whether the sponsor was ‘usually resident’ at [the Forest Lake address] as at 28 May 2014.
(Errors and emphasis in original; footnotes omitted)
NOTICE OF CONTENTION
While both parties accept that the primary judge erred in his construction of cl 836.2 of the Regulations, as outlined in ground of appeal 1 above, the Minister contended that he also erred in his construction of cl 836.212 and that the Tribunal was correct in its construction of that clause. Accordingly, he filed a notice of contention in the following form:
The Federal Circuit Court erred in finding that the appellant satisfied the criterion in clause 836.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Particulars
1.the Federal Circuit Court found (Reasons at [13]) that the appellant was a “carer” within the meaning of regulation 1.15AA of the Regulations of her mother, the latter being the “resident” referred to in that regulation;
2.however, on the proper construction of regulation 1.15AA (read with clauses 836.111, 836.212 and 836.213 of Schedule 2 to the Regulations), the “resident” for the purposes of that regulation, was the sponsor;
3.because the mother (being the person with a relevant medical condition) was not a member of the family unit of the sponsor (as required by regulation 1.15AA(1)(b)(i) and (d), and regulation 1.12(4)(d)(ii)), the Federal Circuit Court ought to have found that the appellant did not meet the definition of “carer” in regulation 1.15AA as the [Tribunal] had found, such that the criterion in clause 836.212 of Schedule 2 to the Regulations could not be satisfied; and
4.the Federal Circuit Court ought to have found that the [Tribunal] had correctly applied regulation 1.15AA and consequently, correctly found that the appellant did not satisfy the criterion in clause 836.212 of Schedule 2 to the Regulations.
(Emphasis in original)
THE CONTENTIONS
Before summarising the parties’ contentions, a number of things need to be noted about the grounds of appeal above. First, while the parties are agreed that the primary judge erred as alleged in ground of appeal 1, the Minister’s position is that the Tribunal and, therefore, the primary judge were correct for other reasons. Secondly, and relatedly, as will emerge later in these reasons, I consider that ground of appeal 2 is determinative of this appeal. That is so because the Minister’s notice of contention (see at [20] above) has the effect of focusing this appeal on the issues concerning the proper construction of cll 836.212 and 836.213 of the Regulations and essentially the same issues are raised by ground of appeal 2. Thirdly, during the hearing of this appeal, Ms Ve made submissions, including supplementary submissions, which were apparently directed to altering and expanding the effect of ground of appeal 3. While the Minister subsequently provided supplementary submissions in response, in the absence of an application by Ms Ve to amend that ground of appeal, I would not have had regard to either of those sets of supplementary submissions. Fourthly, and in that event, because I consider ground of appeal 2 is determinative of this appeal, it will not be necessary to consider grounds of appeal 3 and 4.
Ms Ve’s contentions on ground of appeal 2 are contained in the particulars she has provided to that ground (see at [19(3)] above). For present purposes, they do not require further elaboration. The Minister’s contentions on that issue are similarly summarised in the particulars to his notice of contention (see at [20] above). Additionally, in oral submissions, he contended that the word “the” before the words “Australian relative” in cl 836.213(a) of the Regulations refers to the “Australian relative” mentioned in cl 836.212, and when regard is had to the definition of “carer” in reg 1.15AA, Ms Ve was required to be sponsored by Ms Hoa, her mother. Accordingly, so the Minister submitted, since Ms Huyen, Ms Ve’s sister, sponsored Ms Ve’s application, and she was not a member of the family unit as defined in reg 1.12(1)(e), Ms Ve’s application did not meet the requirements of the Regulations.
THE RELEVANT LEGISLATIVE PROVISIONS
Section 65(1)(a) of the Migration Act 1958 (Cth) provides:
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
…
Clause 836 of the Regulations contains the “other criteria” referred to in s 65(1)(a)(ii) above. It relevantly provides:
836.1—Interpretation
836.111
In this Part:
Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Note:dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03, and carer is defined in regulation 1.15AA.
836.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need only satisfy the secondary criteria.
836.21—Criteria to be satisfied at time of application
836.211
The applicant is:
(a)the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or
(b) a person who:
(i)is not the holder of a substantive visa; and
(ii)immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and
(iii)satisfies Schedule 3 criterion 3002.
836.212
The applicant claims to be the carer of an Australian relative.
836.213
The applicant is sponsored
(a)by the Australian relative, if the Australian relative:
(i)has turned 18; and
(ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii)is usually resident in Australia; or
(b)by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:
(i)has turned 18; and
(ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii)is usually resident in Australia; and
(iv)cohabits with the Australian relative.
(Emphasis in original)
Regulation 1.15AA defines the expression “carer”. It provides:
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a) the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables the rating that is specified in the certificate; and,
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
(4) In this regulation:
Impairment Tables means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.
(Emphasis in original)
Clause 1.12 of the Regulations deals with the expression “member of the family unit”. It relevantly provides:
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)a spouse or de facto partner of the family head; or
(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e)a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
…
(Emphasis in original)
CONSIDERATION
In my view, the resolution of this appeal lies in the amendments that were made to the Regulations by the Migration Amendment Regulations 2002 (No. 2) (Cth). That is so because those amendments provide a peculiar contextual setting which provides direction on the proper construction of cll 836.212 and 836.213 of Schedule 2 to the Regulations.
As explained in the Explanatory Statement concerning those amendments below, their broad object was to remove the distinction between onshore and offshore visa applications in the “family visa stream” so that both required a sponsor rather than that requirement only applying to offshore applications:
Having different requirements for onshore visa applications (requiring ‘nomination’ of the visa applicant) and offshore visa applications (requiring ‘sponsorship’ of the visa applicant) is outdated and inefficient now that much of the “family visa stream” migration program is managed onshore.
With respect to a carer visa application, this object was achieved by inserting a new cl 836.213 in Schedule 2 and amending the existing cl 836.212 to accommodate that insertion. These changes were explained at Item [2375] of the Explanatory Statement. I interpose to note that there appears to be an error in that item in that it refers to a Subclass 835 (Remaining Relative) visa, which is the subject of cl 835, whereas cl 836 related to a carer visa. That error may be explained by the fact that both cll 835 and 836 dealt with similar “family visa” situations and amendments were made to each in substantively the same terms (see, for example, Item [2374] of the Explanatory Statement at [30] below). Item [2375] stated:
Item [2375] - Clause 836.212
This item substitutes clause 836.212 in Part 836 of Schedule 2 to the Migration Regulations.
These Regulations insert new clause 836.213 to require sponsorship for a Subclass 835 (Remaining Relative) [sic – Subclass 836 (Carer)] visa, rather than nomination. Therefore, clause 835.212 [sic – clause 836.212] is amended so that it only requires that the applicant is a carer of an Australian relative.
The insertion of cll 835.213 and 836.213 by these changes necessitated a further change to the Regulations. As the Explanatory Statement further explained at Item [2374], it was that:
Since clauses 835.213 and 836.213 inserted by these Regulations refer to an Australian relative, it is necessary to include a definition of Australian relative in clauses 835.111 and 836.111.
The definition of that expression, as inserted at cl 836.111, is already set out at [24] above. I interpose to note that the insertion of this definition concurrently with the insertion of the sponsorship criteria in cl 836.213 provides an historical link between these two clauses. I will return to this aspect later in these reasons.
It is also appropriate to mention the note which accompanies the definition in cl 836.111 and the expressions to which it refers. With the exception of the first mentioned expression, “dependent child”, which does not appear anywhere in cl 836, those expressions appear in the primary criteria that must be satisfied in respect of a carer visa application, as prescribed by cl 836.2.
First, the second and third mentioned expressions: “eligible New Zealand citizen”; and “settled”; appear in cl 836.213 as follows:
The applicant is sponsored
(a)by the Australian relative, if the Australian relative:
(i)has turned 18; and
(ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii)is usually resident in Australia; or
(b)by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:
(i)has turned 18; and
(ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii)is usually resident in Australia; and
(iv)cohabits with the Australian relative.
(Emphasis added)
For completeness, it should be noted that the expression “settled” is defined in reg 1.03 as follows:
settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period.
(Emphasis in original)
One effect of these provisions, for present purposes, is that, in order to become a sponsor under cl 836.213, the Australian citizen, or Australian permanent resident, or the eligible New Zealand citizen, mentioned in the definition in cl 836.111 must have been “lawfully resident in Australia for a reasonable period”. Another effect was to include the pre-existing criterion that the sponsor had to be at least 18 years of age. This was explained at Item [2376] of the Explanatory Statement in the following terms:
…
New clause 836.213 requires that the applicant is sponsored:
•by their Australian relative, if their Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or
•by the spouse of their Australian relative, if the spouse cohabits with the relative, is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen and has turned 18.
The purpose of this amendment is to ensure that the sponsor of the applicant is at least 18 years of age. This is consistent with sponsorship requirements in the corresponding offshore visa subclasses.
…
Secondly, the fourth mentioned expression in the definition in cl 836.111: “carer”; appears in cl 836.212, as follows:
The applicant claims to be the carer of an Australian relative.
(Emphasis added)
As mentioned above, that expression is defined in reg 1.15AA (see at [25] above).
It can be seen from these features of the 2002 amendments to the Subclass 836 (Carer) visa criteria in Schedule 2 of the Regulations that the expression “Australian relative” serves different purposes in cll 836.212 and 836.213. In the latter, it serves to prescribe additional criteria that “the” Australian relative must meet in order to sponsor the applicant carer. They include that he or she must be at least 18 years old and must be a “settled” Australian citizen, permanent resident or eligible New Zealand citizen.
On the other hand, the former clause prescribes the relationship the applicant carer claims to have with “an” Australian relative to whom he or she intends to provide the care. This is reinforced by the fact that the expression “Australian resident” is not used anywhere in the definition of “carer” in reg 1.15AA (see at [25] above). Instead, the person to whom the applicant carer is to provide the care is required to be “an Australian citizen usually resident in Australia”, referred to in that definition as “the resident”. This is to be contrasted with the expressions “Australian permanent resident” and “eligible New Zealand citizen” which are included in the definition in cl 836.111 above. The balance of the definition in reg 1.15AA prescribes numerous matters pertaining to that person, or “the resident”, including that he or she must hold a certificate in respect of, among other things, his or her medical condition and impairment.
In this respect, it is to be noted that, despite reg 1.15AA being entitled “Carer”, the applicant carer is only mentioned twice in that regulation. First, in subreg (1)(a), there is the requirement already contained in cl 836.212, that he or she is “a relative of the resident”, noting the differences in the two definitions already mentioned. Secondly, in subreg (1)(f), that he or she “is willing and able to provide to ‘the resident’ substantial and continuing assistance of the kind needed”.
In my view, these aspects of the changes that were made to the Regulations in 2002, particularly the clauses concerning the Subclass 836––Carer visa in Schedule 2 to those Regulations, lead to the following conclusions about the purpose of and contextual setting to those clauses.
First, the purpose of those changes was to introduce a scheme for the onshore sponsorship of, among other “family stream visas”, a carer visa. Secondly, cl 836.212, and the inserted cl 836.213, focus on separate and distinct matters within that scheme: cl 836.212 on the role of the applicant carer vis-à-vis his or her relative and that relative’s need for care; and cl 836.213 on the then new criteria for the onshore sponsorship of an applicant carer by one of his or her Australian relatives. Thirdly, while the expression “Australian relative” appears in both clauses, it is pivotal to the sponsorship criteria prescribed in cl 836.213 and it is incidental to the criterion prescribed in cl 836.212 and the provisions of the related definition of carer in reg 1.15AA. Fourthly, while the applicant carer is central to both clauses, he or she has a different role in each. Under cl 836.212, he or she claims to provide the care to an Australian relative; and, under cl 836.213, he or she receives sponsorship from the Australian relative. Finally, and most importantly, there is no express requirement in the criteria in cl 836.2 that the sponsor Australian relative in cl 836.213 and the care recipient Australian relative in cl 836.212 have to be the same person.
Finally, I turn to the text of cll 836.212 and 836.213. I do so with the contextual matters mentioned above firmly in mind. To begin, given the historical link between cll 836.213 and 836.111 and the other contextual matters mentioned above, I consider that the definite article “the” in cl 836.213 refers to the Australian relative as defined in cl 836.111. Conversely, I do not consider it refers, as the Minister contended, to the “an Australian relative” referred to in cl 836.212. For similar reasons, I reject the Minister’s contention that the word “resident” in reg 1.15AA refers to the sponsor of the applicant carer. Finally, and relatedly, I reject the Minister’s contentions that the definitions in regs 1.15AA or 1.12 apply to prescribe criteria with respect to the sponsor of an applicant carer.
It follows from these conclusions that Ms Huyen met the criteria for sponsorship of her sister, Ms Ve, as prescribed by cl 836.213 and the related definition of “Australian relative” in cl 836.111. That is to say, Ms Huyen was an Australian citizen, she was over the age of 18 years and she had been “lawfully resident in Australia for a reasonable period”. In my view, these were the only criteria for sponsorship that Ms Huyen had to meet. Specifically, as mentioned above, I do not consider subreg (1)(b)(i) of the definition of the expression “carer” in reg 1.15AA, or subreg (1)(e)(ii) of the definition of “member of the family unit” in reg 1.12, had any application. There was, therefore, no requirement that Ms Huyen had to be “usually resident” in the same household as her sister, Ms Ve, or as her mother, Ms Hoa. The only residency criteria for her sponsorship of Ms Ve were those prescribed by cl 836.213.
For these reasons, I consider the primary judge erred in his judgment at [18] (set out at [17] above). Since the Tribunal came to the same conclusion, albeit for different reasons (see at [13] above), his Honour’s ultimate conclusion, that the Tribunal committed no jurisdictional error in its decision, was in error. His order dismissing Ms Ve’s application for judicial review must therefore be set aside.
CONCLUSION
For these reasons, this appeal will be allowed on ground of appeal 2 and the Minister’s notice of contention will be dismissed. As foreshadowed earlier, it is therefore unnecessary to deal with the other grounds of appeal. Accordingly, the orders made by the primary judge dismissing Ms Ve’s application will be set aside with costs and her application will be remitted to the Federal Circuit Court of Australia for determination according to law.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves. Associate:
Dated: 30 November 2020
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Judicial Review
-
Administrative Appeals Tribunal
-
Interpretation of Regulations
-
Residency Criteria
-
Family Unit
12