OZ v Minister for Immigration
[2016] FCCA 1810
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1810 |
| Catchwords: MIGRATION – Application for Other Family (Residence) (Class BU) visa – review of decision of Migration Review Tribunal – whether the Tribunal failed to properly consider evidence before it – whether the Tribunal failed to apply the law. |
| Legislation: Migration Act 1958 (Cth), ss.5CA, 5(1), 476. Migration Regulations1994 (Cth) cl.836.213 of Sch.2, cl.103.211 of Sch. 2, Regs. 1.03. 1.04A, 1.14A |
| Cases cited: Knightley & Brandon [2013] FMCAfam 148 Plaintiff M47/2012 v Director General of Security ( 2012) 251 CLR 1 |
| Applicant: | FATMA OZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2672 of 2014 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 June 2016 |
| Date of Last Submission: | 20 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Goodwin |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Second Respondent’s name be amended to ‘Administrative Appeals Tribunal’.
The applicant’s application filed 31 December 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,753.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2672 of 2014
| FATMA OZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 31 December 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 28 November 2014. The Tribunal had affirmed the decision of a delegate of the Minister not to grant the applicant an Other Family (Residence)(Class BU) visa (“the visa) under s.65 of the Migration Act 1958 (Cth) (“the Act”).
As the proceedings were brought pursuant to s.476 of the Act, the applicant must show jurisdictional error in the Tribunal’s decision.
The applicant requires the court to determine whether the applicant is sponsored by an Australian relative. In particular the court must consider whether there is an error in the manner in which the Tribunal considered whether the sponsor, being found to be the former spouse of the applicant’s father, is a “step-parent” for the purposes of the Migration Regulations 1994 (“the Regulations”).
Background
The applicant is a Turkish citizen who first arrived in Australia on 20 April 2009. She has since remained in Australia except for a brief period in 2009-2010. On 2 April 2013, she made an application for an Other Family (Residence)(Class BU) visa, specifically a Carer (Residence)(BU 836) visa.
Decision of the Delegate
To obtain the visa, the applicant had to meet the relevant legal requirements specified in the Act and the Regulations.[1] On 8 August 2013, the Minister’s delegate refused to grant the visa as the applicant was not sponsored in accordance with cl.836.213 of Sch.2 of the Regulations. That regulation provided:
[1] Court Book, p. 181
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.
“Australian relative” is defined in cl.836.111 as:
"”Australian relative” means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Regulation 1.03 further provides:
“relative " , in relation to a person, means:
…
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
close relative " , in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step-child, step-brother or step-sister of the person.
step-child " , in relation to a parent, means:
(a) a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or
(b) a person who is not the child of the parent but:
(i) who is the child of the parent's former spouse or former de facto partner; and
(ii) who has not turned 18; and
(iii) in relation to whom the parent has:
(A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B) guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
S.5CA of the Act provides:
Child of a person
(1) Without limiting who a child of a person for the purposes of this Act, each of the following is a child of a person:
(a) 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);
In s.5(1) “parent” is defined as:
"parent " : without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
The delegate was not satisfied that the father of the applicant was at the time of the application in a continuing relationship with the sponsor. Nor was the delegate satisfied that the applicant, being over 18 years of age, is the step-child of the sponsor and therefore found that the applicant was not sponsored by either an Australian relative, or the spouse or de facto partner who cohabits with the Australian relative and the person who sponsors has turned 18, is settled in, and is usually resident in Australia.[2]
[2] CB 184 – 2nd last paragraph
Decision of the Tribunal
The Tribunal made its decision on 28 November 2014 which affirmed the decision of the delegate. In its reasons, the Tribunal referred to the evidence it had considered including the material submitted in support of the visa application, the review application and the oral evidence at the Tribunal hearing. The Tribunal found at [26] – [29] of its decision that:
26. The Tribunal notes that the applicant, her father and the sponsor have strongly denied the relationship between the applicant’s father and the sponsor had ceased as found by the delegate. The Tribunal notes that the applicant has provided statutory declarations and other material in response to the claims, variously made, that identify a third part as being responsible for errors in the application and supporting material submitted to the Department. The Tribunal has considered this material and the claims of errors in translation by a third party and is of the view that most, if not all, of this material and evidence is self-serving and has been submitted only after the delegate and the Tribunal had raised the possibility that the applicant would be unable to meet the sponsorship requirements because the relationship between the applicant’s father and the sponsor had ceased.
27. In reaching its conclusion the Tribunal placed substantially more weight on the contemporaneous material submitted in support of the visa application at the time of application than that provided subsequent to the delegate raising his concerns of the applicant’s sponsorship. There is no contemporaneous objective evidence before the Tribunal to rebut the claims made in the statutory declarations of the applicant and the sponsor, at the time of application.
28. Therefore at the time of application on 2 April 2013, the Tribunal finds that the relationship between the applicant’s father and the sponsor had ceased. Accordingly as the relationship between the applicant’s father and the sponsor had ceased, the Tribunal finds that the sponsor is not a parent of the applicant at the time of application. Accordingly, at the time of application, the applicant is not sponsored by an Australian relative or the spouse or de facto partner who cohabits with the Australian relative and the person who has sponsored has turned 18, is settled, and is usually resident in Australia.
29. Accordingly the Tribunal finds that at the time of application, the applicant was not sponsored as required by the legislation and therefore does not satisfy cl.836.213.
Grounds of Review
The applicant’s grounds of application provided:
1. The Tribunal erred in law by asking a wrong question or applying the wrong test in determining whether the applicant was sponsored by an Australian relative for the purposes of clause 836.213 of Schedule 2 to the Migrations Regulations 1994 (Cth) (‘the Regulations’).
Particulars
a. The Tribunal found at paragraph [13] of its reasons that ‘in the absence of a definition of step parent and consistently with s 18A of the Acts Interpretation Act 1901, it is appropriate to be guided by the definition of ‘step-child’ in determining whether a different kind of ‘step’ relationship exists.
b. The Tribunal found at paragraph [16] of its reasons that ‘it appears that for the applicant who is over 18, her step-relationship with the sponsor would cease if the relationship between the sponsor and the applicant’s biological father ceased’.
c. The Tribunal found at paragraph [25] of its reasons that the relationship between the applicant’s biological father and stepmother had ceased prior to the time of application, and at paragraph [29] that applicant was ‘not sponsored as required by the legislation and therefor does not satisfy cl. 836.213’.
d. The Tribunal failed to ask itself whether the sponsor was a ‘relative’ of the applicant for the purposes of reg 1.03, and in particular a ‘close relative’, by reference to the meaning of:
(i) ‘parent’ in s5(1) of the Act;
(ii) ‘child’ in s 5CA of the Act; or
(iii) ‘parent’ and ‘step-parent’ in reg.1.14A of the Regulations.
The Applicant’s Submissions
The applicant submitted that the central error in the Tribunal’s reasoning was that it failed to apply the definition of ‘parent’ contained in reg.1.04A of the Regulations and subsections 5(1) and 5CA of the Act.
It was submitted that ‘step-parent’ is not the “mirror image” of step-child under reg.1.03. It was said that the definition of step-child is clearly restrictive as it is dependent on the currency of the relationship between the step-child’s parent and step-parent.
It was also submitted that whether or not a person is a step-parent of an adult child is a question determined by reference to the quality of the relationship between the two people. This was said to arise from a proper analysis of s.5(1) and s.5CA of the Act. It was said that s.5CA does not refer to the ‘child of the parent’ but instead refers to ‘the child of a person’ and that therefore a person may satisfy the definition of ‘parent’ irrespective of the biological relationship between the person and the child. In support of the submission, reference was made to the extended definition of parent given by Harman J in Knightley & Brandon[3] when considering s.5CA of the Act and s.61DA of the Family Law Act 1975. Reference was also made to a decision of the full Court of the Federal Court in H v Minister for Immigration and Citizenship (2010) 188 FCR 393. In that decision after canvassing that ‘parent’ for the purpose of s.16 of the Australian Citizenship Act 2007 does not refer to both biological parents but a person who performs the role that society expects a parent to fulfil. The court concluded at [129] that:
Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
[3] [2013] FMCAfam 148
At [36] of the Applicant’s Written Submissions, the applicant submitted in the following terms;
The Tribunal should therefore have asked if the applicant’s step-mother was in fact a ‘parent’ within a potentially very broad meaning, and examine this as a question of fact, rather than restrict itself to examining the legal relationship between the applicant’s step-mother and biological father (which the definition of ‘parent’ did not require).
This was said to be particularly important in light of the fact that the applicant claims to have lived with and cared for her stepmother while still a child and presumably subject to her parental authority for a time. It was said that it was open to the Tribunal to answer this question in the affirmative or the negative, however, it was not open to it to ignore the question altogether, which it did by failing to apply the meaning of ‘parent’ pursuant to s.5(1) of the Act (in conjunction with reg.1.14A of the Regulations).
A similar point was made in relation to the meaning of ‘step-parent’ in the context of reg.1.14A. It is was submitted that after considering the definition of “parent” and “child” pursuant to s.5CA, it is relevant to consider the meaning of ‘step-parent’ contained in s.4 of the Family Law Act 1975. s.4 of the Family Law Act 1975 defines a step-parent of a child in the following terms:
“step-parent,” in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
(c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.
It was said that where a step-child who lived with his or her step-parent in a family while a minor satisfies subsection (c) of the definition of step-parent in s.4 of the Family Law Act 1975. Developing this argument, the applicant submitted that the applicant had provided evidence that she had lived with and cared for her stepmother while she was still a minor and during the time in which her father was in a married relationship with the sponsor. It was submitted that this suggests that the sponsor treated the applicant as a member of her family unit while married to her father.
It was submitted at [41] – [42] of the applicant’s written submissions:
41. Further, there is nothing in reg.1.03 to preclude a ‘step-child’ from also being the ‘child of a step-parent’ for the purposes of s 5CA of the Act. However, a ‘step-child’ who meets the reg. 1.03 definition is not necessarily the ‘child of a step-parent’ within the meaning of s.5CA of the Act. The former is focussed on the legal relationship between the parent and step-parent while the latter appears to be more concerned with the social relationship between the child and step-parent.
42. This appears to make policy sense in the context of visa sponsorship. As in this case, in considering whether the visa sponsor is a close relative as a parent (including step-parent) at the time of application (as required by clause 836.213), the social relationship is relevant in determining whether the sponsor might have reason to sponsor a visa applicant’s entry into Australia. Then, in determining whether the applicant should receive the visa at the time of decision, it is necessary to consider whether the applicant is a relative of the sponsor (as required by cl.836.221 and reg.1.15AA(1)(a)). These are two distinct enquiries and therefore do not lead to an absurd result for the meaning of step-parent to be broader than the meaning of step-child under the Act and Regulations.
It was submitted that a step-child under reg.1.03 might continue to be a child in respect of the step-parent for the purpose of s.5CA of the Act and s.4 of the Family Law Act 1975 depending on the nature and history of the relationship. It was said that it was a matter of common experience that the term ‘step-parent’ may continue to be used well after the relationship between that person and the biological parent had ended through death or separation. It was said to be telling that the Tribunal referred to the sponsor as the applicant’s ‘step-mother’ rather than as ‘former step-mother’.[4]
[4] Applicant’s written submissions at [46]
It was submitted that the view that the role of a step-parent is to be founded entirely by reference to the circumstances of the biological parent creates potential unfairness of the kind that seems inconsistent with the compassionate purpose of many visa subclasses to which the definition of parent is relevant. Reference was made to cl.103.211 of Sch.2 to the Regulations and in relation to the criterion for the grant of a parent visa.
The Respondent’s Submissions
The respondent submitted that the sponsor, Ms Gumus will be the ‘Australian relative’ of the applicant if she is the step-parent of the applicant for the purpose of the Regulations (and, therefore, the parent of the applicant). The respondent then contends that the task of construing legislation must begin and end with the text and made reference to and submitted that when interpreting the meaning of step-parent in the regulations the court should:
11.2.1. have regard to the language and structure of the provision; and
11.2.2.so far as the statutory language allows seek an interpretation that:
11.2.1. is consistent with its purpose;
11.2.2. avoids inconvenient or absurd outcomes.[5]
In relation to the purpose of the Act the respondent submitted:
Amongst other matters, the Act establishes a complicated scheme for the treatment of non-citizens in Australia, obligations of non-citizens in Australia, obligations of non-citizens in Australian (sic), the assessment of applications from non-citizens seeking to live temporarily or permanently in Australia and the determination of Australia’s international obligations with respect to some non-citizens. The Act deals with the rights and obligations of non-citizens and the process for conferring additional rights on some non-citizens. The relevant definitional provisions of the Regulations identify, as a matter of generality, to whom rights attach, or might attach. It follows that a purpose of the provisions must be to provide certainty for decision-makers about the class of person entitled to a particular visa.[6]
The respondent made reference to the definition of a stepmother in the Shorter Oxford English dictionary which provided relevantly:
1. The wife of one’s father by another marriage; loosely the woman, not one’s biological mother, with whom one’s father lives as if married…
[5] Respondent’s Written Submissions at [11]
[6] Respondent’s Written Submissions at [12]
It was said that this dictionary definition suggests a temporal element to the definition and that a person will only be a step-parent for the duration of the relationship with the biological parent. It was said that:
(a)on that definition, a person will cease to be a step-parent for the purposes of reg.1.14A when they cease a relationship with the child’s biological parent;
(b)this approach is consistent with the purpose of the definitional provisions to provide certainty. It was said that that the temporal limits to the class of persons qualifying as a ‘step-parent’ was consistent with the definition of ‘step-child’ in reg.1.03;
(c)under that provision, absent satisfaction of particular factual and legal conditions referred to in clause (b), a child will cease to be a step-child once the relevant parent ceases to be ‘a current spouse or de facto partner’;
(d)to apply a broad definition of step-parent in circumstances where the definition of step-child was limited would lead to an absurd result that the purpose of the Regulations, the applicant would not be the sponsor’s step-child but the sponsor would be the applicant’s step-parent;
(e)on the applicant’s interpretation, even where a person under the age of 18 ceases to be a step-child because they do not fulfil the criterion in clause (b) of the definition of ‘child’, the person could still have a step-parent for all time.
The respondent referred to s. 5CA, where ‘child’ is defined to include:
Child of a person
(1) Without limiting who a child of a person for the purposes of this Act, each of the following is a child of a person:
(a) 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);
…
It was submitted that the Family Law Act 1975 applies to children who are minors and it provides no assistance in the case of determining whether a person is the step-parent of an adult for the purpose of the Migration Act and Regulations. It was further submitted that the word ‘parent’ in s.16 of the Australian Citizenship Act 2007 provides no assistance in the different contexts of the Migration scheme.
It was further submitted that there was no warrant on the facts to interpret the term ‘parent’ as directly applying to the sponsor and that if that was so, the term ‘step-parent’ would clearly have no work to do. By way of conclusion, it was submitted that the way in which the sponsor could be the parent of the applicant for the purpose of the Regulation was by being the applicant’s step-parent as that term applies.
Consideration
This matter involves the interpretation of the expression “Australian relative” for the purpose of the Regulations. In my view, the respondent’s submission is correct that Ms Gumus will be the Australian relative of the applicant if she is the step parent of the applicant for the purposes of the Regulations.
The respondent has identified the proper approach to interpreting the meaning of “step-parent” in the context of the Regulations that the Tribunal was required to consider.
In this matter the Regulations do not define a step-parent but as noted above, reg.103 defined step-child. It is accepted by both parties that pursuant to the definition of stepchild in reg.103, a person will only be a step-parent for the duration of the relationship between that person and the biological parent.
The Tribunal was correct in its approach to the interpretation of the Regulations. The contrary to the position contended for by the applicant would mean that the applicant may not be a step-child for the purposes of the Regulations but the sponsor could be a step-parent of the applicant. In that result, the limitation on when a person is a step-child imposed by the Regulation would become meaningless.
Whilst the definition of child and parent in the context of the Family Law Act 1975 and the Australian Citizenship Act 2007 may produce a different result whereby a person who was the spouse or de facto of a child could be a parent when the relationship between the parent and the spouse or de facto has ceased, that result is not helpful to the applicant as it arises in a different statutory context. That approach would leave the term “step-parent” with no work to do which is not the result that Parliament would have intended.[7] The tribunal was required to consider the particular words in the statutory context in which it is found. For that reason the discussion and conclusion reached in Knightley & Brandon[8] where in considering different statutes, the court held that the Aunt of a child could be a “parent” for the purposes of considering s.61DA of the Family Law Act 1975 is not relevant to the task undertaken by the Tribunal.
[7] Plaintiff M47/2012 v Director General of Security ( 2012) 251 CLR 1, at [173] per ( Hayne J)
[8] [2013] FMCAfam 148
The Tribunal was required to consider the meaning of “step-parent” adopting the approach contended for by the Respondent as set out in paragraph [20] above. In circumstances where “step-child” is defined, whereas “step-parent” is not, it was appropriate relate the meaning of “step-parent” to the definition of “step-child”.
For those reasons, in my view the decision of the Tribunal is not affected by error and this application ought to be dismissed.
Accordingly, I will make orders that the application be dismissed and the applicant pay the respondent’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 19 August 2016
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