Rahiman v Minister for Immigration
[2006] FMCA 76
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAHIMAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 76 |
| MIGRATION – Family Residence Visa – Migration Review Tribunal – whether jurisdictional error – whether finding of ‘usual residence’ open – whether wrong test applied. PRACTICE AND PROCEDURE – Transfer of Application to Federal Court where pending Full Court decision from decision relied upon by Applicant – whether in the interests of the administration of justice to transfer the proceedings. |
| Federal Magistrates Court Act 1999, ss.39, 39(3)(c)(d) Migration Act 1958, s.474 Migration Regulations 1994, cl.835 sch.2, cl. 835.221, 835.212, sub-reg.1.15(1)(c)(i) |
| Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo [2005] FCA 437 Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo (2005) FCAFC 192 Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395 Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 53 Norman v Norman (1969) 16 FLR 231 Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359 Bagus v Minister for Immigration, Local Government & Ethnic Affairs (1994) 50 FCR 396 Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 Minister for Immigration v WuShan Liang (1996) 185 CLR 259 |
| Applicant: | MICKY ABDUL RAHIMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 855 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. G. Hughan |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Ms L. De Ferrari |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 855 of 2004
| MICKY ABDUL RAHIMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review filed on 27 May 2004, subsequently the subject of an amended application dated 24 May 2005 seeking judicial review of a decision of the Migration Review Tribunal (“the MRT”) made on 17 May 2004.
The MRT had affirmed a decision under review of a delegate of the First Respondent made on 12 September 2003 that the Applicant was not entitled to the grant of another Family (Residence Class BU) visa in the only Subclass in respect of which any claims had been advanced, namely, subclass 835 (Remaining Relative) (“the Visa”).
The amended application sets out grounds of the application in the following terms:
“In affirming the decision of a delegate of the respondent not to grant the applicant another Family (Residence) (Class BU) Subclass 835 (Remaining Relative), the Tribunal made an error of law which caused it to ask itself the wrong question, to rely on irrelevant material, to make an erroneous finding and/or to reach a mistaken conclusion, and the Tribunal's purported exercise of power was thereby affected.
PARTICULARS
(i)The Tribunal misapprehended the meaning of the expression 'usually resides' in sub-regulation 1.15(1)(c)(i) of the Migration Regulations 1994, leading the tribunal to wrongly conclude that the applicant usually resided in the United States of America at the time of his visa application (being the same country as his overseas near relatives) and thereby wrongfully affirming the decision under review that the applicant did not meet criteria 835.212 and 835.221;
(ii) The Tribunal misapprehended the meaning of the word 'contact' in sub-regulation 1.15(1)(c)(ii) leading the Tribunal to wrongly conclude that the applicant had contact with his overseas near relatives within a reasonable time before the making of the visa application and thereby wrongfully affirming the decision under review that the applicant did not meet criteria 835.212 and 835.221.
(iii) In the alternative to (ii) above, the Tribunal failed to consider whether the applicant satisfied sub-regulation 1.15(1)(c)(ii) because of his misapprehension of the meaning of sub-regulation 1.15(1)(c)(i).”
In support of the amended application, the Applicant has relied upon contentions of fact and law filed 11 February 2005 and Applicant's further contentions of fact and law filed 24 May 2005.
The First Respondent relies upon the contentions of fact and law filed 4 May 2005, otherwise both parties made oral submissions.
During the course of submissions, and as set out in the further contentions of the Applicant, it was clear at the outset that the Applicant sought to rely upon a decision of the Federal Court of Australia in the matter of Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo [2005] FCA 437. That decision of Spender J at the time of hearing was the subject of an appeal then pending in the Full Court of the Federal Court. Since the hearing date the Full Court delivered its decision and dismissed the appeal from the Minister (see Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo (2005) FCAFC 192).
It was made clear during the course of submissions that in the event the Court regarded it as appropriate to rely upon that authority in determining the outcome of this application, then both parties would be given the opportunity of making further submissions in relation to that authority once the Full Court had determined the outcome of the appeal.
In the event that this Court does not regard that authority as relevant to the outcome of this application, then it was indicated to the parties that the Court would proceed in the normal manner having reserved its decision to ultimately deliver a decision regardless of the progress of the appeal in Hidalgo.
It perhaps should be further noted that the Applicant had sought a transfer of this application to the Federal Court of Australia having regard to the reliance by the Applicant on the Hidalgo decision of Spender J and the fact that an appeal was pending in the Full Court of the Federal Court.
After due consideration of the factors that the Court is required to take into account pursuant to s.39 of the Federal Magistrates Court Act 1999 (“the Act”) I decided to refuse the application to transfer and gave brief reasons for that decision. Section 39 clearly provides a number of factors which this Court must take into account in exercising the discretion it has to transfer a proceeding to the Federal Court.
The relevant factor in this case appears to me to be whether or not it is in the interests of the administration of justice to transfer the matter to the Federal Court and perhaps whether or not the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding (see s.39(3)(c) and (d) of the Act).
In the present case despite the fact that there was a pending appeal in Hidalgo, I decided it would not be in the interests of justice to transfer this application as the issues now raised and sought to be agitated by the parties are issues which can be dealt with by this Court. A decision of the Federal Magistrates Court may of course be the subject of an appeal which, in any event is an appeal to a Full Court of the Federal Court of Australia save that in appeals from this Court a Full Court of the Federal Court may be constituted at the direction of the Chief Justice of the Federal Court by a single justice.
Nevertheless the process of appeal, whether from this Court or from a single Justice of the Federal Court, still results in consideration being given to any appeal by a Full Court of the Federal Court. It seemed to me unlikely that if there was a dispute or difference of opinion within the Federal Court on an issue which has subsequently been the subject of an appeal to a Full Court in the Federal Court, that a one-member Court would be constituted for the purpose of an appeal from this Court. I could not see, on the material before me, any basis upon which the Court should conclude that it would not be in the interests of justice for the matter to remain in this Court.
It should be noted that there is a claimed potential conflict between the decision of Spender J in Hidalgo and a decision of Weinberg J in the matter of Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395. It is claimed in the submissions that the Ignatious decision is in conflict with the decision of Hidalgo., and to the extent that it is in conflict, it was submitted the decision by the Court in the matter of Ignatious is incorrect and ought not be followed.
I shall deal with the arguments presently, both in terms of whether or not I regard the decision in Hidalgo as relevant to this case, and if so, whether there is indeed any conflict which needs to be resolved by this Court.
Background
By way of background, it is noted that the Applicant was born in Fiji and is a citizen of that country. It is not in dispute that the Applicant had resided in the United States of America (“the USA”) from at least 1990 to September 2002 immediately before coming to Australia. He had entered Australia on 4 September 2002 on a short stay visitor (class TR) visa subclass 676 valid for stay until 4 December 2002. On
4 December 2002 he lodged the application for the visa which is the subject of these proceedings.
Hence, it is clear that the Applicant had effectively lodged the visa application on the last day of his lawful stay in Australia pursuant to the short stay visitor visa. It is not in dispute that the short stay visitor visa only entitled the Applicant to stay in Australia for three months. Accordingly, I accept the Applicant had been in Australia at the time of application for three months exactly.
The Applicant's parents are Australian citizens. The Applicant has three siblings; the nominator in his application who is an Australian citizen and two other siblings who are New Zealand citizens. The Applicant has two children living in the USA. The first, a son born on 24 May 1985, and the second, a son born on 22 March 1993.
It is noted that at the time of the application, that is, 4 December 2002, the first child had not then turned 18 years of age. The Applicant and his wife who, at the time of the application for the visa, continued to live in the USA. The parties divorced on 5 October 2001.
It is asserted on behalf of the Applicant that he had not returned to the USA after making the application for the visa. It is further asserted that there appears little evidence to support the proposition that since that time he believes he will not be permitted to return. Certainly a reference to the transcript of the proceedings before the MRT, there is evidence provided which appears in the Supplementary Court Book (pp.12-13), indicating that the Applicant has concerns about the prospects of re-entering the USA on the basis that he had not re-entered within 30 days of leaving.
Further, he refers to this being his fourth trip to Australia and they have given him a medical visa for three months after which he understands that he should return. When asked, however, by the MRT whether the Government, that is, the United States Government, still considers him to be a permanent resident or not, the Applicant answered, "I have no idea at the moment."
Relevant Regulations
Regulation 1.15 at the relevant time defines "remaining relative" as follows:-
“1.15 Remaining relative
(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-parent. Step-brother or step-sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c) if the applicant or the applicant’s spouse (if any) has an overseas near relative;
(i)the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
(ii)neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and
(d)the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and
(e) …
(2) In this regulation:
overseas near relative, in relation to an applicant, means a person who is:
(a)a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or
(b)a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:
(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse (if any); or
(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse (if any) –
other than a relative of that kind who:
(c)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) is usually resident in Australia.
(3)For the purposes of paragraphs (1)(c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.”
Clause 835 in Schedule 2 to the Migration Regulations 1994 (“the Regulations”) sets out the criteria for the grant of a subclass 835 (remaining relative) visa. The relevant clause include clauses 835.212 which requires the Applicant at the time of application to be a remaining relative of a nominator who is, for example, a settled Australian citizen usually resident in Australia and clause 835.221 which requires the Applicant at the time of application to be a remaining relative of a nominator who is, for example, a settled Australian citizen usually resident in Australia.
Applicant’s Submissions
It is submitted on behalf of the Applicant that as he has two overseas near relatives, that is, both sons who at the time of the application were under the age of 18 and in the care of his former wife, that the Applicant was required to satisfy the First Respondent that he usually resides in a country (not being Australia) that is different from the country in which they reside, namely the USA, and that he had not had contact with them within a reasonable period before making the application.
It was submitted that the meaning of the expression "usually resides" in the context was considered by the Full Court of the Federal Court in Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 53. In particular, reference was made to paragraphs 21 and 27 of the Court's decision as follows:-
“Was a wrong test of ‘usually resides’ applied?
21.We have already observed that the Tribunal did not apply the test propounded in paras 28 and 29 of its reasons in finding that the appellant ‘usually resides’ in the UK. It applied a test that made decisive the combination of three matters, namely that the appellant was born in the UK, that he remained a citizen of the UK, and that by reason of him having a maternal grandparent and an uncle in the UK he had greater ties with that country than the USA. In our opinion, in so deciding, the Tribunal failed to consider the factors of physical residency and intention which are essential elements in the notion of ‘usually resides’. Gauthiez, which the appellant’s counsel relies on to support the third, and different, limb of her submissions is also instructive on this limb. Gauthiez concerned the meaning and application of a regulation that is not relevantly different to reg 1.15. Mr Gauthiez was born in France in 1953 and from then until moving to Belgium in 1972 lived partly in France and partly in French Guinea. In 1981 Gauthiez’s sister and parents came to Australia and became Australian citizens. Gauthiez entered Australia on 24 January 1986 and was granted a temporary entry permit valid to 24 April 1986, since when he remained in Australia unlawfully. On 26 October 1990 he applied for an Extended Eligibility (Family) Entry Permit which was refused by a decision of the Minister’s delegate. That decision was affirmed by a decision of the Immigration Review Tribunal on 20 December 1993. Thus, at the date of the application for a visa the applicant had been unlawfully in Australia for approximately three and a half years, and by the time of the Tribunal’s decision, unlawfully in Australia for more than six and a half years.
…
27. In the present case, the appellant’s presence in Australia after he left the USA was lawful. He entered Australia on a temporary permit as a visitor, suggesting that at the time of his entry he may not have had a firm intention to reside in the future in Australia. However, after two and a half months, he made an application for a visa which assumes such an intention, and thereafter he lived in Australia with his mother. Had the Tribunal posed the question: “Where in that period was his place of abode, where was his home?” the answer inevitably would have been “in Australia at is mother’s place”, and the material before this Tribunal indicated that his only intention was to remain living there.”
In Scargill the Applicant was born in the UK in 1974. His parents divorced in 1981. Before the divorce and since he and his mother had no contact with his father. He and his mother went to the USA and from 1993 lived there. In 1998 he entered Australia on a visitor's visa. Before the visitor's visa expired he applied for the relevant visa and afterwards lived with his mother. Throughout he was lawfully in Australia. At the time of the hearing before the MRT he had been in Australia for four years. He had no continuing ties with the USA and no intention to return to the USA.
In the present case, the Applicant asserts that he does not have any property in the USA, either real or personal, and did not have any property as at the date of his application. It was submitted, after relying upon the Scargill decision, that the expression "usually resides" encompasses two elements that must be present to determine where a person usually resides by mere physical presence in a particular place and an intention to treat that place as home for at least the time being although not necessarily forever.
Another test, it was submitted, adopted for the interpretation of the expression "usually resides" is "whether the person has retained a continuity of association with a place together with an intention to return to that place and an attitude that the place remains home" (See Norman v Norman (1969) 16 FLR 231 at 236).
The Applicant submitted that on either test it could not be said that the USA was the usual residence of the Applicant at the time of the application. He was not physically present there and had severed his connection with that country.
Reference was made to the Applicant's belief that he would not be permitted to return to the USA. Although he had only been in Australia for a few months it was claimed he formed an intention to make the country his home.
The MRT, it was submitted, thereby erred in failing to apply the legal test of what constitutes "usual residence" by failing to consider whether at the time of his application the Applicant in fact usually resided in Australia and he concluded that he usually resided in the USA.
Although sub-regulation 1.15(1)(c)(i) includes the words 'not being Australia' after the expression 'usually resides in a country', this means, according to the Applicant's submission, only that Australia cannot be taken to be the country of 'usual residence' for a person in the position of the Applicant. It would be wrong, it was submitted, to suggest that those words mean that the Applicant is thereby deemed to 'usually reside' in his former country of residence.
It was submitted that the MRT did not go on to consider whether the Applicant could satisfy the First Respondent that he had not had contact with his sons within a reasonable time before the making of his visa application. The issue of contact will be dealt with presently.
The Applicant further sought to rely upon the authority of Hidalgo referred to earlier in this judgment. It was submitted that it is now well-established law that the misconstruction by the MRT of a relevant criterion for the grant of a visa is jurisdictional error not protected by the privative clause pursuant to s.474 of the Migration Act 1958 (“the Act”) (See Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359 where the Court states at paragraph 43 the following:
“[43] Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and regulations, upon a proper construction of the criterion, require him to ask. In such a case, absent s474, the minister's decision would be a nullity. The minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.”
The Court further states at paragraph 62 the following:
“[62] It follows that if in the present case the tribunal has failed to apply the relevant criterion for the grant of a subclass 845 visa, that failure will constitute a jurisdictional error and the decision made under it will not be protected by s474.”
I have no hesitation in applying those principles set out by the Full Court of the Federal Court in Lobo.
The Applicant's submissions continue with the submission that it is possible to categorise the MRT's erroneous conclusions in both this case and in Lobo as findings of fact. However, it was submitted the categorisation does not assist the First Respondent as it was submitted what occurred in both cases is that the MRT asked itself the wrong question.
It was argued that in this case the MRT concluded that the Applicant usually resided in the USA at the time of the visa application. That conclusion, it was submitted, was made without any reference to the authorities which have been decided of the meaning of the words 'usually resides'.
It was argued that the place where a person 'usually resides' depends upon the person's physical presence and the intention of the person. The MRT, it was submitted, can only have concluded the Applicant usually resided in the USA by misapprehending the meaning of these words. It was argued there was no indication in the reasons for its decision that the MRT understood that this was the meaning of the words under consideration.
It was submitted that the Court, in considering the MRT's decision, should have regard to the conclusions reached by it in its decision, and in particular reference was made to paragraph 39 of the MRT decision as follows:-
“39.The main ground which is in dispute in this case is in relation to whether the visa applicant resides in the same country (not being Australia) as an overseas near relative. If the visa applicant does then he is disqualified from being a remaining relative. The visa applicant stated that he has two children who reside in the USA in the custody of their mother, the visa applicant’s ex-wife. The visa applicant gave evidence during the review hearing that the children were solely in their mother’s custody and that he has regular contact with them by telephone. Therefore, in light of regulation 1.15(2)(b)(ii), the visa applicant’s children are to be considered overseas near relatives. As such, the visa applicant does not meet the requirements of regulation 1.15(1)(c)(i) as his overseas near relatives reside in the same country which is the visa applicant’s country of usual residence.”
It was noted in that paragraph that the MRT stated that the main ground which is in dispute in this case is "in relation to whether the visa applicant resides in the same country (not being Australia) as an overseas near relative". It was argued this was a miss-statement of the issue as the question is of 'usual residence' not 'residence'. The MRT's approach appears to be it was argued that the place in which the Applicant lived before coming to Australia is his 'country of residence'.
Whether that approach was adopted because of the MRT's emphasis on the words in the 'not being Australia' or because of its failure to avert to the accepted meaning of the words 'usually resides' it was submitted is unclear, but that either way it demonstrates that the MRT misunderstood the meaning of regulation 1.15(c)(i).
It was argued that in Hidalgo the Minister sought to review a decision of the Tribunal on facts which are indistinguishable from the facts in the present case. In Hidalgo the Tribunal determined that the Applicant's country of usual residence at the time of her application for a visa was Australia. That conclusion was reached because Australia was the place in which she physically resided, and by making an application for a permanent visa she demonstrated her intention to remain here. It was argued the same could be said of the Applicant in the present case.
Specific reference was made to the decision of Spender J in Hidalgo where at paragraph 60, his Honour states the following:-
“60 Accepting that the amendments to reg 1.15 were to maintain and make plain the original policy position, it seems to me that on its proper construction reg 1.15 requires that an applicant for a remaining relative visa have a country of usual residence that is different from the country of usual residence of the overseas near relative and that that country of residence of the overseas near relative cannot be Australia. The words "not being Australia" are properly to apply to the country of usual residence of the overseas near relative.”
As indicated earlier in this decision it was argued that if there is a conflict between the statement of Spender J referred to above and the decision of Weinberg J in Ignatious, then the Court should conclude that Ignatious is incorrect and ought not be followed. Of course since the delivery of the Full Court decision in Hidalgo the Court can now apply that decision and does not need to deal with any alleged conflict between the decision of Spender J and the decision of Weinberg J in Ignatious.
It was submitted that the MRT's finding that the visa Applicant's country of usual residence was the USA being the same country as his children was affected by its misapprehension of the meaning of the words 'usually resides'. This, it was argued, caused the MRT to incorrectly conclude that the Applicant had not satisfied visa criteria 835.212 and 835.221.
It was further argued there is nothing in the material to suggest that any of the other relatives of the Applicant who lived overseas were 'overseas near relatives'.
Respondent’s Submissions
In relation to the issue of contact, the Applicant sought to argue that there is a further hearing made by the MRT. It was argued that the MRT did not go on to consider whether the Applicant could satisfy the First Respondent that he had not had contact with his sons within a reasonable time before making his visa application. If it did so it was submitted that the MRT would have inevitably concluded that the Applicant had not had contact with them in that time.
The evidence before the MRT on 14 April 2004 was that he had not seen his sons for five years. It was argued therefore he had not seen them for more than three years before the date of application. The Applicant's evidence on speaking to his sons via the telephone, it was argued, does not constitute evidence of contact for the purposes of sub-reg.1.15(1)(c)(ii).
Reference was made to the decision of the Federal Court in Bagus v Minister for Immigration, Local Government & Ethnic Affairs) (1994) 50 FCR 396 and in particular the following passage, in my view, is relevant where the Court states at page 402 the following:-
“The meaning of the word ‘contact’ is important. In my opinion, it does not refer to physical contact, such as a meeting, but communication in the sense of a social relationship. The Macquarie Dictionary (2nd ed) gives the primary meaning of the word ‘contact’ as ‘the state or fact of touching’, but it goes on to state a sociological meaning as ‘a condition in which two or more individuals or groups are placed in communication with one another.”
… What must be established is that there has been social contact ‘during a reasonable period preceding the application”.
The First Respondent submitted that on a proper reading of the decision of the MRT, there did not appear to be a finding that the Applicant had had contact with his sons within a reasonable period before making the application. However, if there was such a finding, then it was a finding of fact which was unreviewable even if wrong.
It was argued by the Applicant that he was required to satisfy the First Respondent that there has not been contact in the context of a social relationship between the Applicant and his sons (or one of them).
In relation to this issue the First Respondent submitted that the Applicant accepts that he was required to satisfy the Tribunal that he usually resided at the time of his application in a country (not being Australia) different from the country where his sons reside. Reference was made to Ignatious at paragraph 12 where the Court states the following:-
“12 The relevant differences between the prior definition and the new definition are that:
• the new definition expressly requires the applicant to satisfy the Minister of all of the matters referred to, while the prior definition contained certain disqualifying conditions;
• the new definition required the applicant to satisfy the Minister that the applicant and the applicant’s spouse usually resided in a country, not being Australia, that was different to the country in which an overseas near relative (if any) resided. Previously, an applicant was disqualified if the applicant (or the spouse) usually resided in the same country, not being Australia, as an overseas near relative; and
• the new definition introduced a provision that an overseas near relative was to be taken to reside in his or her last known country of residence unless the applicant satisfied the Minister that that relative resided in another country.”
The First Respondent submitted that the Tribunal found the applicant's sons resided in the USA and also found that at the time of the application the applicant usually resided in the USA.
It was argued that the applicant now takes issue with the finding of fact by the tribunal of usual residence by him in the USA. At that point in time it was exactly three months after he travelled from the USA. and had arrived in Australia. It was submitted the applicant attempts to "dress up this attack on a finding of fact" clearly open on the evidence which the authorities make clear that even if erroneously made, cannot amount to a jurisdictional error.
It was argued that the submissions of the applicant misread what the Full Court said in Scargill, and further, there is an attempt to introduce evidence by way of contentions, namely, a reference made to the intention formed by the applicant to make this country, that is, Australia, his home.
There is confusion, it was submitted, as to what was relevant regarding considerations of the applicant's 'usual residence' at the time of the application with what may not necessarily be relevant at the time of the decision, namely, that he now considers that since more than two years have passed with him having been outside the USA, he would not be permitted to re-enter.
It was argued by the First Respondent that nothing in the Full Court decision of Scargill changes the generally accepted law as to the making of findings of fact as required by a particular legislative provision where expressions such as "usual residence" or "usually resides" are used. In particular the elements of physical residence and of an intention are to be considered in the overall context of the use of the expression "usually resides".
The First Respondent relied upon the decision of Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519 where the court states the following:-
“Whilst it may be a fundamental proposition that, at common law, every person will have domicile, being at leat the domicile of origin, it by no means follows that within the meaning of reg 9 an applicant or the spouse of an applicant will ‘usually reside’ in any one country. Counsel for the respondent appeared to accept this. Nevertheless, it seems that the Tribunal approached its task as one of ascertaining the places of residence of the applicant and his brother in the sense that the end of the inquiry had to be the identification of one or other of various candidate countries.
The artificiality of the inquiry was, to a degree, recognised by the Tribunal when it noted that where, as here, the applicant has been unlawfully present in Australia for a significant period, the result presents ‘some difficulties’ in the application of reg9(2). The meaning ordinarily given to the phrases ‘resides’, ‘usually resides’ and ‘ordinarily resides’ is such as to make the result in a given case depend largely upon matters of fact and degree. That means that if, in the reasons of a body such as the Tribunal, no misapprehension of the meaning of the provision in question is disclosed, and no misconception appears as to what may amount to ‘residence’ or ‘usual residence’, the decision will not involve a question of law. This will be so unless the facts before the Tribunal were incapable of the legal complexion placed upon them: Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104, per Dixon J.”
The First Respondent submitted that nothing detracts from the proposition that generally speaking a finding by a tribunal as to "usual residence" is a finding of fact. Even if erroneously made it is not reviewable by this court in an application for judicial review.
In Scargill, it was submitted, there was an error of law found to be jurisdictional because the tribunal, although incorrectly articulated the law as to usual residence, proceeded to determine where the applicant "usually resided" by reference to his citizenship (United Kingdom). The fact that he had some relatives (not immediate family) still residing in the United Kingdom and a general finding that therefore his ties must have been with the United Kingdom rather than United States, the country of his most immediate residency before coming to Australia.
In the present case, it was argued, when reading the decision with an eye not too attuned to error (See Minister for Immigration v WuShan Liang (1996) 185 CLR 259) there is simply no basis for the suggestion that the tribunal applied an incorrect test of 'usual residence'.
The First Respondent otherwise referred to the facts and submitted that it was reasonably open to the MRT to conclude that the applicant notwithstanding the making of application for what, if granted, would be a permanent visa stay in Australia "usually resided" in the United States at the time of application, namely 4 December 2002.
In dealing with the lack of reference to the correct legal test it was noted that in its decision the MRT made reference to the "Procedures Advice Manual 3 (PAM3) on 'remaining relative'". PAM3 was reproduced in the supplementary court book and it is noted that it refers to the correct legal test and the distinction between applications pre‑1 November 1999 (to which regulation 1.15 is in the form considered in Scargill would apply) and applications after that date (to which regulation 1.15 in the form set out above would apply). Hence it was submitted that in the circumstances the MRT had properly informed itself by reliance upon PAM3 of the relevant law.
It was submitted that the decision of the court in Hidalgo is not relevant to the present application. It was noted that Spender J in that case followed the Scargill decision and otherwise the First Respondent argued that on a proper reading of Hidalgo it does not provide a basis upon which this court should consider itself bound by that decision or otherwise accept the submissions made for and on behalf of the applicant.
It was submitted on behalf of the First Respondent that it would be against the natural and ordinary meaning of the expression "usually resides" to construe it in such a way that a person such as the applicant who has lived in the USA for a period of approximately 16 years (minus his stay in New Zealand) with almost certainly an entitlement as a permanent resident to return to live in the United States after a stay overseas of only some three months (at least this is a matter as to the contrary of which the applicant has had the burden to persuade the tribunal) does not "usually reside in any country".
There is nothing, it was argued, in the statutory context, that is, Regulation 1.15, in the form it was in at the relevant time of this case, to require such a reading entirely contrary to commonsense.
Reasoning
It is perhaps relevant to note that a proper reading of the Tribunal’s decision, and in particular paragraph 39 referred to earlier in this judgment would lead the court to the conclusion that the tribunal has simply recited what the applicant said in relation to his two children and refers to the fact that he "gave evidence during the review hearing that the children were solely in their mother's custody and that he has regular contact with them by telephone".
Immediately after that sentence the Tribunal states:
“Therefore in light of regulation 1.15(2)(b)(ii) the visa applicant's children are to be considered overseas near relatives does not of itself follow on logically as a conclusion reached by the MRT in relation to the contact issue.”
In relation to this issue of contact however, and applying the decision of Whitlam J in the Bagus case I am satisfied in any event that the submissions made for and on behalf of the applicant in relation to what constitutes evidence of contact should not be accepted. His Honour clearly states in Bagus:
“Contact which does not have to be merely physical but involves the concept of ‘communication’ in a social setting. Telephone communication can clearly be undertaken in the sense of a social relationship and by use of telephone.”
It is clear in my view that even if there was a finding in relation to contact, which as I have indicated I doubt, then it was a finding of fact reasonably open and this aspect of the application cannot support a conclusion that there has been any error of a kind which would attract judicial review.
In relation to the key issue in this case concerning the MRT’s finding in relation to “usual residence” I accept the submissions made for and on behalf of the First Respondent. First I accept that the decision of the Court in Hidalgo is not relevant to this application.
It is significant to note that the appeal point in Hidalgo related to the construction and application of Regulation 1.15(c)(i) of the Regulations. In delivering the decision of the Court French J with whom the other Judges agreed relevantly states the following:-
“The Proper Construction of Regulation 1.15(1)(c)(i)
12 In my opinion, reg 1.15(1)(c)(i) is intended to apply to the circumstance in which an applicant for the relevant visa has an overseas relative in another country. It is concerned with their geographical relationship when they both reside outside Australia. It is not a regulation which is intended to bring in, by a sidewind, a disqualifying criterion for the grant of such a visa based upon the circumstance that the applicant happens to have her only usual residence in Australia. In the event that the applicant usually resides in Australia only, then the criterion under reg 1.15(1)(c)(i) simply does not apply because the circumstances to which it is intended to apply do not arise.
13 It is submitted by counsel for the Minister that the Tribunal failed to ask itself the question it was required to ask, namely, whether the visa applicant might usually reside in some country as well as Australia. The Tribunal found that she resided in Australia in terms which are clearly indicative of a finding that she resided only in Australia. However, the question which it is now said that the Tribunal ought to have asked itself does not appear to have been agitated before the Tribunal. It does not emerge at all from the grounds of review before his Honour, and it is not reflected in his Honour's reasons, which suggests that it was not put to his Honour as a basis for overturning the Tribunal's decision.
14 In the factual context in which the Tribunal made its finding of residence, there does not seem to be any realistic room for a concurrent conclusion of residency in another country. Regulation 1.15(1)(c)(i) is simply not applicable to operate as a disqualification of the visa applicant from the grant of the relevant visa. For these reasons the appeal should be dismissed. The appellant is to pay the respondent’s costs of the appeal.”
It is clear to me from those passages that the facts and circumstances of Hidalgo can be distinguished from the present case. In Hidalgo the Tribunal in considering the factual context where it made its finding did not as stated by French J have any “realistic room for a concurrent conclusion of residency in another country”. In the present case in my view for reasons already stated the Tribunal did have a basis upon which it could reach a conclusion that the Applicant was usually resident in the USA. Accordingly I do not regard the reasoning in Hidalgo as relevant either at first instance or on appeal.
In my view as submitted by the First Respondent the MRT in this instance has embarked upon a fact finding process concerning the usual residence of the Applicant. It has not misconstrued the test to be applied but rather has applied the appropriate test relying as it does albeit it perhaps indirectly on PAM3.
Nevertheless it was open to the Tribunal in its fact finding process to make an assessment of the usual residence of the Applicant based on the material then before it. Although at one point submissions were sought to be pursued that the Applicant had no usual residence, that matter was not pursued and was sensibly not argued. However, the Tribunal’s assessment of the factual material clearly indicated an ability to make a finding unaffected by jurisdictional error that the Applicant at the time of the Application had been outside the USA for precisely three months. I accept that it is not relevant for the Court or indeed the MRT to have regard to whether or not the Applicant may or may not have difficulty getting back into the USA having now been out of that country for a period of approximately two years. Likewise, it is my view that the MRT clearly had before it material concerning whether the Applicant had real or personal property in the USA at the time the Application was made. It is clear the Tribunal correctly found the Applicant’s sister who had nominated him was a settled Australian citizen usually resident in Australia and that paragraphs (a) and (b) of Regulation 1.15(1) were satisfied.
In considering the key issue, that is consideration of Regulation 1.15 which defines “remaining relative” the Tribunal having correctly found that the Applicant’s sons resided in the USA then in my view made a decision free of error that at the time of the application the Applicant usually resided in the United States. That is a finding of fact which in this instance is required by the legislation. I accept that apply the decision referred to by the First Respondent of Gauthiez referred to earlier in this judgment [60]. Hence, even if the Tribunal had made an erroneous finding of fact I accept for the present purposes that that error if there be one does not provide a basis upon which this Court could find that there has been an error of a kind which would result in successful judicial review of the decision by the MRT.
In this case I accept that it would be contrary to the ordinary meaning of the expression “usually resides” for the Tribunal to ignore the fact that the Applicant in this instance had lived in the USA for a period of approximately 16 years apart from a stay in New Zealand and prefer instead to draw a conclusion based upon the period of three months prior to the application when the Applicant had resided in Australia. The Tribunal is entitled to adopt a common sense approach in reaching its finding and applying as in my view it has correctly applied the appropriate test. It was entitled in applying the appropriate test under Regulation 1.15 to make a finding as it did free of error that the Applicant had in fact usually resided in the USA being the same country in which his children reside and that accordingly was not entitled to the visa.
Issues concerning the Applicant’s intention and what may occur to him should he return to the USA in my view whilst they may become relevant at the time of a decision were not relevant at the time of application which was appropriately considered by the MRT. I accept as submitted by the First Respondent that the mere physical presence or intention at the time of hearing does not remove from the MRT the responsibility to make a proper assessment of the usual residence of the Applicant and to make its finding of fact which, as I have found in this case, was a finding reasonably open to it on the material. There was material in this case as submitted by the First Respondent which provided the opportunity for the MRT applying the correct legal test of “usual residence” to conclude that the Applicant usually resided in the USA at the time of the application.
Accordingly it follows the application should be dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 January 2006