Reforgiato v Minister for Immigration
[2014] FCCA 1211
•16 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REFORGIATO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1211 |
| Catchwords: MIGRATION – MRT decision – dependent child residence visa – no jurisdictional error found. |
| Legislation: Acts Interpretation Act 1901 |
| Ban v Minister for Immigration [2006] FMCA 1693 Certain Lloyds Underwriters v Cross (2012) 248 CLR 378 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 |
| Applicant: | LUDOVICO REFORGIATO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 956 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 14 April 2014 |
| Date of Last Submission: | 23 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr De Marchi |
| Counsel for the First Respondent: | Ms Wende |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the application filed on 1 July 2013 and the amended application filed on 10 October 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 956 of 2013
| LUDOVICO REFORGIATO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal made 13 June 2013.
The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a “Child (Residence) (Class BT)” visa under s.65 of the Migration Act 1958. The primary focus of this visa category is dependent children of Australian citizens who have not attained 25 years (see cl.802.212(1)).
“A dependent child” is defined in reg.1.03 to cover a child who has not attained 18 years, or a child who has attained 18 years and is either incapacitated for work or dependent upon the relevant person. “Dependency” is defined in reg.1.05A as being wholly or substantially reliant upon the other person for financial support to meet their basic needs for food, clothing and shelter, and that that reliance has been greater than the reliance on any other person or source of support.
Clause 802.214 extends the category of dependent child to a person who has attained 18 years of age if the various conditions set out in the clause are satisfied. Importantly, the conditions include:
802.214
(1) (c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
In cl.802.311 a further conditions requires membership of a family unit, which is defined in reg.1.12. In this context the regulation refers back to the dependency of a child or a relative who is dependent on the family head. For reasons I fail to grasp (beyond the coincidence that it contains the words ‘reasonable time’) the applicant attempted to draw some analogy with s.31(2) of the Marine Insurance Act 1909, which provides:
A time policy which is made for any time exceeding twelve months is invalid. Provided that a time policy may contain an agreement to the effect that, in the event of the ship being at sea or the voyage being otherwise not completed on the expiration of the policy, the subject-matter of the insurance shall be held covered until the arrival of the ship at her destination, or for a reasonable time thereafter not exceeding thirty days; and the policy shall not be invalid on the ground only that by reason of such agreement it may become available for a period exceeding twelve months.
This provision appears to me to be completely irrelevant to this case.
As I identified in Sok v Minister for Immigration [2005] FMCA 190, the Minister’s guidelines provide some insight into the policy background of the provisions:
20. This analysis is entirely consistent with the guidelines published by the Minister and tendered by the applicant which relevantly provides:
Policy background
A child who turns 18 is considered, prima facie, to be independent. If a child progresses to further studies after secondary schooling, it is generally accepted that the child is still dependent on the parent and dependence has not been terminated.
This concept is also contained in various State and Commonwealth law. If the child has been a full-time student continuously since the age of 18 (even if post-secondary studies were commenced before that time) they will meet this requirement.
If not studying at 18
To cater for the situation where the child became a full-time student sometime after turning l8 - for example, because they started secondary school later than normal - a child will also satisfy this criterion if they commenced post-secondary studies within 6 months of (or a reasonable time after) completing secondary school.
Six months is considered a reasonable time for the child to have made the decision to undertake further study. For periods longer than six months officers should consider carefully why the decision to study was deferred and whether the applicant remained dependent on their parent during that time.
Military service
A break in studies due to compulsory military service may be considered reasonable, provided the applicant immediately resumed the studies that had been suspended.
In Sok v Minister for Immigration [2005] FMCA 190 I went on to state:
23. In order to determine the weight to be placed on a particular reason for the time period being considered, the meaning of the term ‘reasonable’ must be seen in the context of the legislative scheme. This visa condition, read in the context of the legislation, clearly contemplates respecting reasonable ongoing support that parents may provide to enable young adult offspring to complete their education or training. A similar community value is reflected in s.66L of the Family Law Act 1975.
The issue that arises in this case is whether or not the applicant satisfied cl.802.214(1)(c) in circumstances where he completed his secondary education in July 2007 and did not appear to resume full-time studies until October 2010, a period a little over three years.
Whilst his employment history is not set out in detail in the decision, it appears from the court book that between April 2006 and November 2007 the applicant worked as a waiter (see CB 103), between December 2007 and May 2008 he worked in Australia on a working holiday visa (see CB 10), and between July 2008 and June 2010 he worked for a transport and logistics company in Italy (see CB 10).
The Tribunal considered whether or not the applicant had shown that he had commenced his studies within a reasonable time after concluding his secondary education, saying:
17. As noted above, cl.802.212 requires (with limited exception) that the applicant be under 25 years and the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen who is the parent of the applicant.
…
19. The birth certificate states that Ludivico Reforgiato was born on 8 January 1987 and this date of birth is also stated on his Italian passport. ON the basis of this documentary evidence, the Tribunal finds that Mr Reforgiato was 24 years old at the time of application.
…
21. As Mr Reforgiato was over 18 at the time of application, the Tribunal has considered whether he was and still is ‘dependent’ within the meaning of r.1.05A, ie – is ‘wholly or substantially’ reliant on the parent for financial support to meet the visa applicant’s basic needs for food, clothing and shelter for a substantial period immediately before the visa application AND the visa applicant’s reliance of the parent is greater than his or her reliance on any other person or source of support.
…
23. On the basis of the available evidence, the Tribunal is satisfied that Mr Reforgiato is and has been for a substantial period immediately before the time of application, wholly or substantially reliant on the other person, Fausto Reforgiato, for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is also satisfied that Mr Reforgiato’s reliance on Fausto Reforgiato is greater than any reliance by him on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. Accordingly, the Tribunal finds that the requirements of r.105A(1)(a)(i) and (ii) are met.
24. For reasons above, the Tribunal finds that the applicant is the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen: cl.802.212(1)(a). The Tribunal also finds that the applicant satisfies the ago requirements of cl.802.212(1)(b). Accordingly, the applicant meets the requirements of cl.802.212.
I note, as Smith FM pointed out in Wake v Minister for Immigration and Another [2010] FMCA 272, that the policy background contained in the Department of Immigration’s Guide to Delegates as referred to above is not extrinsic material admissible under s.13(1)(a) of the Legislative Instruments Act 2003 (Cth) and s.15AB of the Acts Interpretation Act 1901 (Cth), however, I remain of the view that, when one reads the legislation as a whole, it appears apparent that this is the appropriate policy objective and that appears from the terms of the provisions; see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, at [67]-[71].
As Kenny J observed in Sok v Minister for Immigration and Citizenship [2007] FCA 413 at 66, that the applicant does not have to show a “justification” for the lapse of time, rather the Tribunal must determine whether or not the full-time study occurred “within … a reasonable time after completing the equivalent of year 12”.
My decision in Sok has been applied in Sok and Another v the Minister [2006] FMCA 1393, Qiao v Minister for Immigration [2008] FMCA 380 and Ban v Minister for Immigration [2006] FMCA 1693.
Whilst the regulation does not contain the list of factors that I listed at para.19 in my decision of Sok, it appears to me that, on a fair reading of the legislation, it would usually be necessary to consider these matters in order to determine what would be a reasonable period of time as each of those factors bears directly upon the question. It was not intended, nor could it be, an exclusive list, as is apparent from the balance of the judgment.
In this case the Tribunal correctly identified that the applicant was over 18 years of age and turned to the gap of over three years between his completion of secondary studies and his full-time studies in Australia. The Tribunal identified that it must endeavour to arrive at a conclusion as to what is a reasonable period of time, it identify the applicant’s circumstances, and, in particular, his claims that he was having emotional difficulties adjusting with his parents’ separation and needed time to make decisions about his future. The Tribunal noted that the applicants’ parents had separated seven years prior to his completion of secondary school and that his father had moved to Australia in 2004.
Ultimately, the Tribunal did not accept that the marriage breakdown placed undue pressure on the applicant when he was considering his career options in 2007 (see para.35).
The Tribunal also turned its mind to the claims with respect to financial barriers, noting that his father had provided for him and his brother and wholly supported him since he had arrived in Australia (see para.36). The Tribunal went on to consider what the applicant did during the three year period, before ultimately concluding that a break of 12 months between his secondary school studies and studying in Australia would have been reasonable, a break far less than the period in this case. The Tribunal said:
39. Having considered carefully Mr Reforgiato specific circumstances, the Tribunal does not accept that 3 years constitutes a reasonable time after completing secondary studies. Therefore the Tribunal finds that the visa application does not satisfy the criterion as he had no, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c).
The solicitor for the applicant argued four grounds in support of the application.
Ground 1
In the first ground it was argued that the Tribunal had erred in law by effectively assuming that there was an upper limit of 12 months for any period that could be “a reasonable time”.
A careful reading of the Tribunal’s decision does not indicate that at any stage the Tribunal took the view that there was an “upper limit” on the period that could be reasonable. At para.25 the Tribunal identified the terms of the clause, referring to “six months or a reasonable time after completing the equivalent of year 12”. The Tribunal went on to identify the decisions in Wake v Minister for Immigration and Another [2010] FMCA 272 and Sok v Minister for Immigration [2005] FMCA 190, and the importance of considering the length of time and the reasons for the hiatus between completing year 12 and commencing his tertiary studies (see para.32). In para.38 the Tribunal concludes that, in this particular case, it would have been reasonable for the applicant to have had a break of six to 12 months, but not for three years.
I am not persuaded that the Tribunal have at any point in their decision indicated that they approached the matter on the basis that there was some upper limit to what the reasonable period could be. Therefore, I find that the applicant fails under this ground.
Ground 2
In support of ground 2 the applicant alleges that the Tribunal failed to take into account or adequately consider the specific circumstances in this case. In the particulars to ground 2 the applicant lists a number of factual matters that he alleges “the Tribunal ignored”, with respect to the question of reasonable time. Those factors are listed as follows:
In Italy
a. Mr Reforgiato finished his secondary schooling in Italy in July 2007;
b. Mr Reforgiato’s father had moved to Australia, remarried and had other financial responsibilities;
c. Mr Reforgiato’s father had encouraged him to work after completing his secondary schooling;
d. Mr Reforgiato was no financially supported by his father at this time and experienced financial barriers to continue his studies;
e. Mr Reforgiato had to supplement the income of his family in Italy, assisting his mother and brother then 16 years of age.
In Australia
f. Mr Reforgiato moved to Australia in September 2010;
g. Mr Reforgiato began a course of study in October 2010;
h. Mr Reforgiato has “relied totally on his father’s financial support to meet his basic needs” since moving to Australia: [33]
These particulars appear to be entirely misconceived in that the Tribunal expressly referred to each of the facts and circumstances particularised. The Tribunal specifically identified the time that the applicant finished his secondary schooling (para.30). The Tribunal noted that the applicant’s father had moved to Australia, remarried, as set out the paras.22 to 23 and 33 of the decision. The Tribunal noted that the applicant’s father had encouraged him to work after completing his secondary schooling and addressed whether or not the applicant was financially supported by his father at this time and whether he experienced financial barriers to his studies, and whether he had to supplement the income of his family in Italy (see para.33).
The solicitor for the applicant was not able to identify any evidence in the court book in support of the proposition alleged in paragraph (e). No transcript was provided. The findings of the Tribunal were contrary to the allegation in particular (e).The evidentiary basis for these findings is discussed under Ground 3.
The Tribunal identified when the applicant moved to Australia (para.22), when he began his course of study (para.31), and that he had relied upon his father’s financial support since moving to Australia (see para.22).
The second group of particulars under this ground address whether or not the Tribunal had properly assessed the study undertaken by the applicant to determine whether or not it was a full-time course of study. It is alleged (and particularised in subparagraphs (a) to (j)) that the Tribunal failed to have regard to the various pieces of evidence about the study the applicant was undertaking and therefore failed to conclude that he was undertaking full-time study. All of the particulars relate to study that occurred on or after 11 October 2010. The actual findings of the Tribunal with respect to the gap in the period of study is set out in paras.30 to 31 of their decision as follows:
30. The Tribunal has closely examined the evidence relating to the pattern of study undertaken by Mr Reforgiato since leaving school. Mr Reforgiato told the Tribunal that he completed his secondary studies in June 2007 then sat the state examination in August 2007. He said that he was 20 years old at that time because his birthday fell in January and because he repeated a year early in his schooling life.
31. The oral and written evidence before the Tribunal indicates that, after completing his secondary education, Mr Reforgiato undertook travel, full time and seasonal work until 11 October 2011 when he commenced an English (IELTS) Preparation Course in Australia, followed by a Certificate IV in Business and a Diploma of Business which he completed in December 2011. He has not studied or worked since that time. On the basis of this evidence, the Tribunal finds that Mr Reforgiato commenced full-time studies more than 3 years after completing his secondary studies, and that he has not been engaged in full-time studies since December 2011.
It is apparent from the terms of these decisions that the Tribunal accepted that studies in English and in Business in Australia were full-time studies. This ground misconceives the findings of the Tribunal and seeks judicial review on the basis that the Tribunal made findings adverse to the applicant in an area where it is clear that the Tribunal accepted the applicant’s case.
In the circumstances, the applicant has not shown a ground for judicial review in this regard.
Ground 3
In support of ground 3 the applicant argued that the Tribunal had regard to a “hypothetical situation” in concluding that the applicant’s father would and could have provided for the applicant’s study fees should he have wished to have studied. The Tribunal made a number of findings of fact. Importantly:
36. The Tribunal has also had regard to Mr Reforgiato’s claim that there were financial barriers to continuing full-time study directly after completing secondary school, and that he wanted to financially assist his mother. However the Tribunal heard that, while he lived with his mother in Italy, his father provided him and his brother with financial support for rent, food and clothing, and that his father has wholly supported him since Mr Reforgiato arrive in Australia in September 2010.
…
38. Having had regard to the circumstances surrounding his completion of secondary schooling, the Tribunal considers that it would have been reasonable for Mr Reforgiato to have a break of 6-12 months before commencing full-time studies. However it was over 3 years before he commenced a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. During these 3 years he engaged in a mixture of full-time and seasonal work and travel. Although Mr Reforgiato faced some financial constraints during this time, it is the Tribunal’s view that his father’s ongoing financial support would have permitted him to pursue study if had chosen to do so, either in Australia or in Italy.
These findings of the Tribunal were certainly supported by statutory declarations of the applicant and his father which appear at pp.119 to 123 of the court book. In the statutory declaration the father set out that he was supporting the applicant since 2005, sending the applicant money for rent, food and clothing, and discussing the applicant coming to Australia to stay with his father, which ultimately occurred in December 2007. The statutory declaration goes on to point out that in 2008 he was supporting the applicant in Australia and that the applicant was talking about his studies at that time before deciding to go back to Italy.
The applicant in his statutory declaration said, “My father has always been supporting me during these years, financially and emotionally, to get my studies completed, but, as I said, for three years it has been difficult to me getting a choice” [sic] (see CB 123).
The applicant did not provide a copy of the transcript of the hearing at which both he and his father attended. From the material contained in the court book it certainly appears to me to be open for the Tribunal to have concluded that the applicant’s father would have supported him financially for study during this period, and in any event, without the evidence of what was said at the hearing, I would not be in a position to make a finding that the Tribunal acted without evidence on this issue.
Remarkably, the applicant now seeks leave to file a ‘supplement’ to his further submissions dated 23 May 2014. Despite there being no evidence (by way of transcript or recording) before the Court as to the hearing before the Tribunal the applicant’s solicitor makes submissions about what is allegedly on the recording of the hearing. This ignores Registrar Corporale’s order of 4 July 2013 that:
4. Evidence of the contents of any sound recording be presented as a transcript verified by affidavit.
At their highest, the submissions say:
9. The Applicant’s father also gave evidence as follows in relation to the Applicant’s time in Italy:
Tribunal Member: “Now, what did he do after he finished school?”
Fausto Reforgiato: “Well, he both looked for a job and thought about studying further because the financial situation of his mother was not the best and things were difficult”.
Tribunal Member: “So, were the financial problems the reason he didn’t continue studying?”
Fausto Reforgiato: “Yes, one was that, but as well was the shock seeing that his parents no longer got on”.
10. These statements indicate that the Applicant’s father acknowledged that the financial situation of the Applicant’s mother was a factor in the Applicant not studying.
11. The proper inference to be drawn is that, if the father was able or willing to contribute to cover the Applicant’s full-time study in Italy he would have had to financially support his ex-wife. There is no evidence that he was able or willing to do this. There is no general evidence from which an inference to this finding can be drawn.
This is not consistent with the statements of the applicant in his statutory declaration at CB 123, or his father’s statutory declaration (CB 121).
I reject the further submissions as they are not supported by evidence. It appears to me in any event that it was open to the Tribunal to make the findings it made.
The submissions filed 5 May 2014 (pursuant to a consent order to extend time) finally identify the loose analogy with s.66L of the Family Law Act 1975 (Cth), but focused upon the necessity for support. For the first time the applicant’s solicitor engaged with the reasoning in Sok v Minister for Immigration and Citizenship [2007] FCA 413. Unfortunately, the submissions appear to misconstrue the cases on s.66L and are of little assistance.
Counsel for the Minister, however, addressed the point raised in oral argument in their further written submissions, saying:
16. Although reasonableness in a child maintenance order is part of the objects of s.66B of the Family Law Act, what is reasonable in making a child maintenance order is informed by all of the matters set out in ss.66B, 66C, 66J 66K and 66L. This includes, at s.66L, consideration of whether maintenance is necessary to enable a child over 18 to complete his or her education.
17. In Certain Lloyds Underwriters v Cross (2012) 248 CLR 378 it was held that even where a term from one legislative scheme is imported into another legislative scheme, that in itself does not demonstrate a legislative intention that the provision should be construed with regard to the purpose or intention of the Act from which the term is imported: see French CJ and Hayne at [39].
18. The Court should be cautious in importing the principle of “necessity” from s.66L into the interpretation of cl.802.214(1)(c) and there is nothing in the Migration Regulations or the Migration Act that indicates that principles of the Family Law Act are relevant in consideration of criteria for a Subclass 802 visa.
19. As noted in Sok, it may be that both s.66L and cl.802.214(1)(c) respect reasonable ongoing support that parents may provide to enable young adult offspring to complete education. That both respect that social circumstance, does not, however, mean that the principles concerned with the making of a child maintenance order should be imported into cl.802.214(1)(c).
20. The criteria for a Subclass visa do no seek to ensure financial support for a child, but recognise that if a child is dependent upon a parent for support, they may be eligible for the grant of a visa. They are not concerned with a future projection of financial need (as with the making of a child maintenance order) but rather acknowledge an existing relationship of dependence, and allow for the grant of a visa on basis of that existing relationship. It is not the case, as argued by the Applicant at paragraph 20 of his further submissions, that the purpose of cl.802.214 is for the provision of a child visa where parental support of young adults is necessary for them to complete their education.
To what extent do the Family Law Act 1975 (Cth) provisions give any context to the Migration Regulations 1994 (Cth)? The obvious answer is that is a person in Australia is obliged to support their child to complete their education, the legal force of that obligation (as opposed to the moral obligation) flows from the Family Law Act 1975 (Cth). Could it be thought that the Commonwealth Parliament would have intended to impose such an obligation on an Australian Citizen but not made provision to allow their child to obtain a visa to enable the obligation to be fulfilled in Australia? I think not. Rather, both provisions focus on the same thing: the expectation that a parent will support an adult child to complete their education. If anything, the Family Law Act 1975 (Cth) provisions may be more restrictive as they establish the minimum standards of support that are legally enforceable whereas the visa condition could arguably reflect or facilitate the range of usual social norms in this area in Australian society.
However, the core issue remains for the applicant of establishing that the Tribunal’s decision was so unreasonable that it should be set aside as a result of jurisdictional error. The applicant has not cited one example of a case where a parent has been obliged to support a child’s education after a 3 year gap, nor developed any argument with respect to any range that may arguable appear in the s.66L cases. It is not for me to exercise the Tribunal’s discretion. I am not persuaded that the Tribunal’s finding was outside the reasonable range of outcomes open on the evidence before it.
I therefore find that the applicant has not made out this ground.
Ground 4
The fourth ground alleges that the finding that the applicant could have been supported financially by his father in 2007, if he had chosen to study at that time, was made without evidence. For the same reasons that I have espoused for ground 3, I find that the applicant is unable to make out this ground.
Other Issues
Whilst not squarely raised in the hearing by the applicant’s solicitor, I should also address the argument which appears implicit, that the applicant suggests that the decision of the Tribunal was so unreasonable that no reasonable decision-maker would have come to that conclusion. When looking at the nature of the provisions, it is difficult to conclude that the applicant commenced his studies in a reasonable period of time when a period of in excess of three years passed during which time the applicant worked (and even undertook a number of short courses, such as first aid, security, workplace safety and the like).
In the circumstances I would have refused the applicant on such a ground had it been raised.
Conclusion
As the applicant has not been successful in establishing a ground of judicial review, I must therefore refuse the application.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 16 June 2014
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