Phin v MIAC
[2013] FMCA 60
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHIN v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 60 |
| MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether adult child dependent on visa applicant or relatives in Australia – whether Tribunal in fact properly addressed issue of dependency – consideration of authorities including Graovac, Al Naqi and Alimi – jurisdictional error. |
| Migration Regulations 1994, reg. 1.05A, 1.15(2)(b)(i) |
| Nolan v Nolan (2003) 10 VR 626 Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 Al Naqi v Minister for Immigration & Anor [2007] FMCA 874 Zeng v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 54 Alimi v Minister for Immigration & Anor [2007] FMCA 1520 |
| Applicant: | CHOMNO PHIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 689 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 30 November 2012 |
| Date of Last Submission: | 30 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr Szydzik |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The decision of the Migration Review Tribunal dated 10 May 2012 be quashed.
The matter be remitted to the Tribunal to be determined according to law.
The first respondent pay the applicant’s costs fixed at $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 689 of 2012
| CHOMNO PHIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 May 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the visa applicant a sub-class 115 (remaining relative) visa.
The amended application, filed 13 September 2012, asserts that the Tribunal’s decision was affected by jurisdictional error as a result of a misinterpretation and/or misapplication of the term “dependent child” as appearing in the definition of near relative in reg.1.15(2)(b)(i) of the Migration Regulations 1994 (“the Regulations”). The ground has various particulars, but the one pressed most strongly before the Court was that the Tribunal failed to inquire, as it was submitted it properly should have, whether the primary applicant’s adult son was, in fact, dependent upon her.
A number of alternative arguments and other matters were raised with which I will deal in due course. It is sufficient for present purposes, however, to say that I accept the primary position adopted by the applicant and for the Reasons that follow, the matter should be remitted for re-hearing.
Background Facts
Ms Huoch Phin was born on 15 May 1972 and applied for an Other Family (Migrant) (Class B) visa on 28 September 2009. Four of her children were included as secondary applicants on the application. The primary visa applicant was sponsored by her brother (who is the review applicant in this case).
The primary applicant’s father, mother and four siblings all live in Australia. The only family relevant to her in Cambodia are her children.
Three of the children are (or at least were at the time of application) under the age of 18. The primary applicant’s son, Raddha Leng, born 2 August 1990, was an adult at the time of the application.
It is common cause that the primary applicant is divorced and did not work at any time relevant to the matters in these proceedings.
The decision of the delegate, which gave rise to the Migration Review Tribunal application, was made on 23 March 2010. The delegate recorded (CB125) that Raddha Leng was over 18 and was not incapacitated for work. The delegate reported “he is currently studying”.
The delegate recorded that the primary applicant stated:
“that all money comes from her parents and siblings and that they send $700, $800 or sometimes $1000 US Dollars per month to her. She stated that they fully support her and her children and that they have done so since she was divorced in 2007, a period of more than two years now. Raddha Leng was subsequently interviewed by Departmental officers on 23 March 2010 and he confirmed the information provided above, being that his mother does not work, the house they live in is rented and they pay rent, and the mother and siblings of Huoch PHIN provide all the financial support. … It is therefore evident that Raddha LENG is not dependent on the family head, Huoch PHIN, but rather is dependent on Huoch PHIN’s parents and siblings.”
This finding both led to the conclusion on the part of the delegate that the primary applicant could not succeed as she had a new relative remaining in Cambodia, and Raddha Leng could not succeed because he was not dependent upon his mother within the meaning of the Regulations.
The issue before the Tribunal
Although a number of regulations bear upon the matter in a general way, in the end there is only one regulation which is of any ultimate significance. That is because the issue before the Tribunal, and in a sense here also, is whether or not Raddha Leng was or was not dependent upon his mother within the meaning of reg.1.05A.
Regulation 1.05A is as follows:
“1.05A(1) Subject to subregulation (2), 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;”
It is common cause that if that question had been answered favourably to Raddha Leng, in other words if he had been found to be dependent, then not only he but his mother and the other secondary applicants (Raddha’s siblings) would succeed.
The Tribunal’s Decision
The Tribunal summarised the application for review, its jurisdiction to hear the matter and the legislation at CB190-191 in terms which are not the subject of any controversy. At CB191-195, the Tribunal set out the evidence in the proceeding and referred to the relevant regulations.
The facts so recorded are essentially those I have already set out above. At CB192, paragraphs 19-20, the Tribunal recorded, relevantly:
“19. The primary visa applicant has, since about 2007, been financially dependent on funds remitted from Australia by himself and their (his and the primary visa applicant’s) younger brother and parents. He has been the primary benefactor, sending amounts of between AUD500 and AUD$800 a month, although sometimes he might be as much as three weeks late with a payment.
20. Raddha with has never worked and has been engaged in full-time study at all relevant times.” (sic)
The Tribunal recorded at CB195 the gravamen of a written submission provided by the review applicant (the primary applicant’s brother in Australia) which relevantly asserted:
“Leng Raddha is the visa applicant’s dependent child and living with the visa applicant. Leng Raddha is currently studying full time and is dependent on the visa applicant for financial support.
The visa applicant (PHIN Huoch) receives ongoing financial support from her family in Australia and with this money that is given directly to her she uses to financially support her dependent children for basic needs for food, clothing and shelter under the meaning of the Migration Regulation 1994, 1.05A, Dependant.
If the visa applicant was to be employed, then her employer would not be taken as the entity that financially supports her dependent children as the money would be payed and given directly to her which then would be used to support her children. (sic)
When Leng Raddha was asked where the money was coming from, he said the money is coming from his relatives in Australia. The money is derived from his relatives in Australia but this money is directly given to the visa applicant (PHIN Huoch) and not Leng Raddha. Therefore this money now belongs to PHIN Huoch whether she gives it to Leng Raddha or not is up to her. This clearly means that Leng Raddha’s reliance for financial support on the visa applicant is greater than any other source.”
I accept the submissions of the applicant that the kernel of the Tribunal’s decision is set out at paragraphs 35-37 which paragraphs read as follows:
“35. The Tribunal takes the period between 28 September 2008 and 28 September 2009 as the “substantial period immediately before the time of application”. In light of the review applicant’s evidence that the primary visa applicant has not, at any time performed any paid work and that Australian relatives have provided the financial support, the Tribunal finds that the primary visa applicant was not the person on whom Raddha was dependent for a substantial period immediately before the time of application. The review applicant concedes that primary visa applicant was herself dependent upon him and other family contributions from Australia. The Tribunal is not satisfied that Raddha was dependent on the primary visa applicant in the sense contemplated by the Regulations.
36. In relation to the agent’s submission that dependency by Raddha on the primary visa applicant should be found because, although the funds are being sourced from the review applicant, the primary visa applicant is administering the funds to Raddha, the Tribunal considers that it must have regard to the source of the funds rather than the mechanics of their payment. Whilst the means by which the funds are distributed and applied is via Huoch Phin, the reality is that Raddha is and, for a substantial period of time before the application was lodged in September 2009, had been dependent on Australian relatives, particularly the review applicant, to pay for his basic needs of food, clothing and shelter.
37. In relation to the agent’s employer analogy, the Tribunal accepts that it would be absurd to consider (hypothetically, given Huoch’s unemployment) Raddha as dependent on an employer. However, in that scenario legal title in the funds would, at the point of payment divest from the employer and vest in Huoch as remuneration for labour performed in the pay cycle. In that scenario anyone dependent on Huoch’s distribution of those wages could be rightly said to be “a dependant” on her. By contrast, the funds in this case are not remuneration for labour performed (or otherwise funds that have been generated by Huach) but merely flow through her from the review applicant to Raddha. The significance of this distinction has been considered by the Tribunal and the Courts, albeit in another context: Al Naqi v Minister for Immigration & Anor [2007] FMCA 874 and Alimi v Minister for Immigration & Anor [2007] FMCA 1520 (16 October 2007).”
As a result of these findings, the Tribunal found that Raddha Leng was wholly and substantially dependent for his basic needs of food, clothing and shelter on funds remitted by his uncle and, to a lesser extent, another uncle and his grandparents in Australia (see paragraph 39 at CB196).
Accordingly, the Tribunal found that since Raddha Leng was not a dependant within the meaning of the Regulations at the relevant time, he remained a mere relative of the primary applicant and, as a result, the application failed.
The applicant's arguments
Although the matter was pressed in oral submissions, the primary argument put by the applicant is set out at paragraphs 13 and 14 of the applicant's contentions of fact and law:
“13. The applicant's submission is that the Tribunal erred in approaching the question of dependency from the perspective of the source of funds. In using the phrase in the sense contemplated by the Regulations in [35] the Tribunal imposed its own gloss upon Reg. 1.05A. It did so without reference to any authority on point, to departmental policy, to any extrinsic material, or purpose of the visa in question. In so doing, the Tribunal misapplied or misunderstood the regulation in question.
14. There was no distinction, as a matter of law, between the visa applicant obtaining funds from an employer, from a donor (in Australia or locally) or from say a government or non-government organisation. In each case, property in the funds passes to the visa applicant absolutely. It is hers to do with as she pleases. She may apply as much or as little to her children's basic needs. The intention of the donor cannot change the status of the relationship between mother and son. He remains her dependent child. The correct question, not dealt with by the Tribunal, was whether, as a matter of fact, Raddha was dependent on his mother for financial support to meet his basic needs for food, clothing and shelter.”
In oral submissions, counsel for the review applicant drew the Court's attention to the decision of Dodds-Streeton J given in the Supreme Court of Victoria in Nolan v Nolan (2003) 10 VR 626, a case in which the Court was relevantly concerned with the elements of what constituted a valid gift (see at [131]).
Here it was submitted that the review applicant had the necessary intention to make a gift; there was the relevant intention on the part of the primary applicant to accept the gift, and delivery.
The applicant's next argument, put in the alternative in oral submissions, related to the meaning to be ascribed to the Regulations in the light of the type of visa with which we are concerned. It was submitted that this is a case about a visa to ensure reunion of relatives and is encapsulated at paragraph 18 of the applicant’s written submissions as follows:
“With this background, to disqualify an entire family because the visa applicant has had to depend on an overseas relative to survive is at odds with the purpose of the visa, which is to bring the family together. …”
In this context, the applicant dealt in some detail with the authorities of Al Naqi, Alimi, Zeng and Graovac. These are matters to which I shall return.
As a further alternative, counsel for the primary applicant pointed to the observations of Riethmuller FM in Al Naqi v Minister for Immigration and Anor [2007] FMCA 874 at [16] where his Honour said:
“However, on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided. This appears to me to be the circumstance to which PAM3 is directed.”
As a result, it was submitted that the gift given by the relatives in Australia was a gift to the mother and accordingly, Raddha remained a dependant.
Finally, it was put in the alternative that I should not follow either
Al Naqior Alimi which were submitted to be clearly wrong. It was submitted that Zeng was a different case, and that Graovac was not applicable.
The respondent's arguments
The respondent submitted that this was really a dispute about facts and constituted merits review. The first respondent strongly submitted that the correct test had been applied and that what is required is a practical judgment in the circumstances of the case.
That last point emerges, it was submitted, from a consideration of the decision in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 (“Graovac”), a decision of the Full Court of the Federal Court constituted by Einfeld, Branson and Hely JJ given on 16 December 1999. The judgments of Einfeld J at [2] and Branson and Hely JJ at [24] clearly establish that:
“a broad practical judgment is required in the circumstances of the particular case as to what is encompassed by the notions of dependence and support.”
It was submitted that this is exactly what happened here. Counsel for the first respondent also referred to Al Naqi and submitted that the test adopted in that case was the same in substance as that with which the Court is concerned now.
Counsel for the first respondent strongly resisted the assertion, made in the alternative by the applicant, that the Regulation should be interpreted in any different way because of its purpose, and referred to authority in support of this proposition. It was submitted that it was wholly inappropriate to depart from the meaning of a phrase that was clearly defined in the Regulations.
It was submitted that the Tribunal's decision was not limited to the point about the source of funds alone.
It was further submitted in relation to the alternative argument arising out of paragraph [16] of Al Naqi that this was unsound. It was submitted that in spousal visas, both spouses can be deemed to provide funds even though only one of them is. This, of course, was not the case here. Finally, it was submitted that the decisions of Al Naqi and Alimi were not wrong.
Consideration of the quoted authorities
Graovac
In this case the delegate was not satisfied that the visa applicants were wholly or substantially dependent upon their son, Petar Graovac, for financial, psychological and physical support. The claim of financial dependency was rejected on the ground that material support received by the applicants from the refugee centre in which they were residing was a matter which outweighed the financial support which the parents subsequently got from their son. The delegate found that since the refugee camp provided for the majority of the applicants’ needs, they could not be substantially dependent on the son.
Much of the majority decision (the decision of Einfeld J was very short) dealt with the meaning of "substantially" in the phrase "wholly or substantially dependent". The crux of the majority's decision is at [16] where Branson and Hely JJ said:
“In our opinion, the trial judge was correct when he said that the issue of whether the state of affairs which subsisted at the time of decision is one in which the respondents are wholly or substantially dependent upon the supporter must be considered in the light of all of the relevant circumstances. In a case such as the present, to restrict the enquiry to a consideration of the comparative financial contributions of the refugee centre and the supporter to the support of the respondents provides too narrow a focus for a determination of the issue of substantial dependency.”
At paragraphs [18]-[19], they continued:
“[18] Given that financial dependency can exist notwithstanding that it is not being met, and given the abnormal conditions subsisting in FRY at the relevant time, a broader consideration of the respondents' financial position and of their personal relationship with the supporter was required, in order to determine whether the status of the respondents at the relevant time was that of persons wholly or substantially dependent on the supporter for financial support.
[19] That requires the taking of, or at least giving consideration to, the taking of a longer term view than that adopted by the Delegate.”
Put shortly, the majority was of the view that the mere fact that the parents were receiving charitable assistance as refugees would not necessarily be determinative of whether or not the visa applicant was wholly or substantially dependent on family members who might be unable to offer support at the given time.
In my view, while the statement of principle already set out above is clearly applicable, Graovac involved a very different state of affairs to that pertaining here.
Al Naqi v Minister for Immigration & Anor [2007] FMCA 874
This was a decision of Riethmuller FM in which the applicant before the Court was the husband of the primary visa applicant, son of one of the secondary visa applicants and brother of the two other secondary visa applicants. A visa was granted to the applicant's wife (the husband in Australia) but not to his mother or brothers.
The husband was an Australian citizen who had married in Pakistan in December 2004. His wife arrived in Australia on a spouse visa in 2006. The husband's mother and brothers were applicants as dependants of the husband's wife.
His Honour found that the wife lived with the husband's mother and brothers until she came to Australia and that the husband sent money regularly to pay for rent, utilities and other household expenses which the wife administered. Once the wife came to Australia, the husband sent money directly to his mother, and his wife was no longer involved in the distribution of funds.
His Honour set out the regulations and the Tribunal's finding. The husband's argument in that case was that dependency was established by financial support and that the money provided by him should be treated equally as money provided by his wife, and his Honour referred to PAM3 in that regard.
His Honour observed the meaning of the word "dependent" in reg.1.05A which does not require that the person providing support be the only source of support that the person receives. His Honour referred to the broad practical judgment required in the circumstances of the particular case and quoted Graovac in this regard.
His Honour observed at [14]-[17] that:
“[14] In order to make a determination on a ‘broad practical basis’ about who is providing support it will sometimes be necessary to identify the underlying source of the support and reasons for the provision of that support. For example, it could not be suggested that the applicant’s mother is ‘dependent’ (in the sense used in the regulations) on the financial institution in Pakistan, which provides her with the cash money equivalent to the transfers the applicant makes from Australia. The financial institution only facilitates the transfer of funds. This is because the underlying source of the funds is the applicant, and the underlying motivation for payment is the applicant’s familial relationship.
[15] In many cases involving a husband and wife, which would be the subject of the PAM, the dependents would be receiving the support because of the relationship of the supporter with their spouse, who may be providing the funds.
[16] The Court and the Tribunal would generally avoid the distasteful process of expressly determining whether or not a person's spouse would be likely to support their dependents if they were not in a spousal relationship. However, on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided. This appears to me to be the circumstance to which PAM3 is directed.
[17] In this case, however, there is no real doubt that the applicant would continue to support his mother and brothers regardless of the nature of his relationship with his wife, and indeed, even if he, his mother or brothers had no relationship with his wife. In these circumstances it is difficult to see how it can properly be said that the applicant's mother and brothers are dependent upon his wife. The applicant is the ultimate source of the funds, and the reason for the support is not based upon any relationship of the applicant or the claimed dependants with his wife, nor any reliance upon the wife.”
Accordingly, his Honour went on to hold that the Tribunal had not erred in law and that the mother and brothers were not dependent upon the husband's wife and the application therefore failed.
In my view, it is immediately obvious that the facts of Al Naqi are relevantly distinguishable from those here, and although I should make it clear that I do not accept that it was wrongly decided, quite the contrary, it is not fatal to the applicant's claims as it is not, indeed, applicable.
Zeng v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 546
This is another decision of Riethmuller FM. Whilst it sets out in a helpful way a number of matters as to the meaning of "wholly or substantially" as it appears in reg.1.05A, involving extensive references to Graovac, it was once again a decision on a wholly different set of facts readily distinguishable from those here. It does not produce any particular result in this case.
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
This is a decision of Riley FM. This decision is closer on its facts to those here. The Australian permanent resident was born in Afghanistan, which he left in 2001 having married in 1999. His wife lived in Afghanistan together with his brother. His wife continued to care for the brother in Pakistan and the Australian resident sent money to them for the support not only of his wife and their child but also of his brother. In due course, the wife obtained a partner visa with their son and the brother as secondary applicants. The delegate allowed the application of the wife and her son but refused the application of the brother. The Migration Review Tribunal affirmed the delegate's decision on the grounds that the brother was a dependant of the Australian permanent resident rather than the wife. That decision was the subject of judicial review.
Her Honour set out the relevant Regulations and at [7] posed the question as follows:
“There is no question that Khaliqdad was relevantly dependent on either the applicant or Habiba. At the time of the Tribunal’s decision, Khaliqdad was a 20 year old student living in Pakistan. The issue in dispute is whether it is sufficient that Khaliqdad was dependent on the applicant rather than his wife.”
Her Honour came to the conclusion that the Tribunal's conclusion was correct, but the matter was predominantly concerned with reg.1.12(1)(e)(iii) which deals with whether or not the person is a member of a family unit, is a relative of a family head or a spouse of the family head who is dependent upon the family head. Her Honour concluded that sub-regulation (e)(iii) did not include a person who is dependent on a spouse of the family head but was confined to a person dependent on the family head. Her Honour concluded, therefore, that the Tribunal's decision was correct as the applicant was not dependent upon the wife.
Once again that case, it seems to me, faces distinct factual, and important factual, differences from the one here. In that case, crucially, there was an express finding, it would appear, that the brother in Pakistan was not dependent upon the wife in Pakistan.
The issue in this case is whether or not such a finding has been properly made. This may seem a fine distinction but in my view, it is a vital one.
Consideration
I am keenly conscious that decisions of the Tribunal should not be picked over with an eye overly attuned to the perception of error. In the end, however, I think that in this instance, the Tribunal did fall into error in the way it sought to apply regulation 1.05A. The Tribunal's finding is set out at paragraph 35 (CB195) relevantly as follows:
“In light of the review applicant's evidence that the primary visa applicant has not, at any time performed any paid work and that Australian relatives have provided the financial support, the Tribunal finds that the primary visa applicant was not the person on whom Raddha was dependent for a substantial period immediately before the time of application. The review applicant concedes that the primary visa applicant was herself dependent upon him and other family contributions from Australia. The Tribunal is not satisfied that Raddha was dependent on the primary visa applicant in the sense contemplated by the Regulations.”
The Tribunal went on to deal with the agent's submission that dependency should be found because although the funds were being sourced from Australia, the primary visa applicant was administering those funds to Raddha. The Tribunal, however, considered that it:
“must have regard to the source of the funds rather than the mechanics of their payment. Whilst the means by which the funds are distributed and applied is via Huoch Phin, the reality is that Raddha is and, for a substantial period of time before the application was lodged in September 2009, had been dependent on Australian relatives …”
At paragraph 37, the Tribunal went on to deal with the analogy advanced as to employment by the agent, but distinguished it on the footing that these were not funds generated for labour performed rather merely funds that flowed through her from Australia to Raddha.
What the Tribunal's decision does not reveal, however, is that the Tribunal considered what I think the Regulation plainly requires, namely, a finding as to fact as to whether or not Raddha was, indeed, dependent.
It is clear that the fact that funds were sourced from Australia and merely distributed (on one view) to Raddha might give rise to a finding that he was not dependent upon the primary applicant but upon the relatives in Australia. However, it is also clear that the factual scenario dealt with so briefly by the Tribunal might also be capable of giving rise to a finding that Raddha was indeed dependent upon his mother. It is not clear that the Australian relatives either would or would not have continued to support Raddha, for example, in the event that he had a major falling out with and expulsion by his mother.
In my view, the Tribunal moved simply from the issue of the source of funds to its conclusion, and this, while understandable, did not address the issue that the Regulations require be addressed. It follows accordingly that the applicant's case in this regard is made out.
The Alternative Arguments
In the circumstances these can be dealt with briefly. I should say first that I reject the applicant's argument that the Regulation should be read down in some fashion because of the particular function of the family reunion visa. The meaning of the Regulation is clear, and I accept the submission of counsel for the Minister that there is no basis for reading it other than as it stands.
Next, I accept that the extract from paragraph [16] of Al Naqi does not give rise to any kind of broader principle. The remarks made by his Honour in that case were limited to spousal arrangements and, in my view, are confined to the facts of the case.
Finally, I should say that I do not regard the decisions in Al Naqi or Alimi as wrong. To the contrary, I think, with respect, that both cases were correctly decided.
Conclusion
As I have indicated, the applicant's primary argument has succeeded and it follows that the applicant should have the relief he seeks. There will be orders accordingly.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 13 February 2013
4
4
0