Shan E Huang v Minister for Immigration & Ethnic Affairs

[1996] FCA 223

CATCHWORDS

MIGRATION - criteria applicable to visas - preferential family visa - requirement for sponsorship.

Migration Regulations, Sch 2, cl 104.211

SHAN E HUANG v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG 430 of 1995

Coram: Whitlam J

Place:Sydney

Date:               20 March 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )          NG 430 of 1995
  )
GENERAL DIVISION  )

SHAN E HUANG

Applicant

MINISTER FOR IMMIGRATION AND
  ETHNIC AFFAIRS

Respondent

Coram:Whitlam J

Place:Sydney

Date:20 March 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )          NG 430 of 1995
  )
GENERAL DIVISION  )

SHAN E HUANG
  Applicant

MINISTER FOR IMMIGRATION AND
  ETHNIC AFFAIRS

Respondent

Coram: Whitlam J
Place:              Sydney

Date:20 March 1996

Ex tempore

REASONS FOR JUDGMENT

This is an application under section 476(1) of the Migration Act 1958 for review of a decision refusing to grant a visa.

The background facts may be briefly stated.  The applicant is a citizen of the People's Republic of China.  On 8 March 1995 her solicitors in Sydney posted to the Australian migration office in Hong Kong what purported to be an application for a "preferential family" class of visa.  The solicitors said in their accompanying letter that the application was based on a "special need relative" relationship between the applicant and her daughter

who was born in Australia on 31 October 1994.  The child is an Australian citizen because her father is an Australian citizen.

The application was unsuccessful.  The decision of the respondent's delegate dated 2 May 1995 stated (inter alia):

"Your legal representative states in his submission accompanying your application that you are the special need relative of your daughter, Shannon Ha, who is six months old. 

There is no provision in subclause 104.211 for an applicant to be sponsored by a person who has not attained the age of eighteen or who does not have a spouse who is eighteen years old. 

You, therefore, do not meet the primary criteria at the time of application for a class 104 (Preferential Family) visa, as a special need relative, and your application is refused."

The applicant seeks to review that decision on the ground that it involved an error of law, being an incorrect interpretation of subclause (3) of clause 104.211 in Schedule 2 of the Migration Regulations. 

The criteria for the grant of a preferential family visa are set out in Part 104 of Schedule 2.  Clause 104.211 sets out the primary criteria to be satisfied at the time of application.  So far as relevant, they are:

"(1)The applicant meets the requirements of subclause (2) or (3).

(2)An applicant meets the requirements of this subclause if:

(a)the applicant is an aged dependent relative, or a remaining relative, of a person (in this subclause called "the Australian relative") who is:

(i)an Australian citizen; ... and

(b)the applicant is sponsored:

(i)if the Australian relative has turned 18 and is a settled Australian citizen, ... - by the Australian relative; or

(ii)by the spouse of the Australian relative, if the spouse:

(A)cohabits with the Australian relative; and

(B)is a settled Australian citizen or a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(C)has turned 18.

(3)An applicant meets the requirements of this subclause if:

(a)the applicant is an orphan relative, or a special need relative, of a person (in this subclause called "the Australian relative") who is:

(i)an Australian citizen; ... and

(b)the applicant is sponsored:

(i)if the Australian relative has turned 18 - by the Australian relative; or

(ii)by the spouse of the Australian relative, if the spouse:

(A)cohabits with the Australian relative; and

(B)is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and

(C)has turned 18."

Counsel for the applicant submits that there is no requirement for a sponsorship under clause 104.211 where the Australian relative has not turned 18 and has no spouse.  He begins by pointing to the definition of "special need relative" in reg 1.03 and the construction of that definition in Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322. However, in my opinion, the starting point in discovering the meaning of paragraph (b) in both subclauses (2) and (3) of clause 104.211 is to note that, in one case, the applicant must be an "aged dependent relative" or "remaining relative" of the Australian relative and, in the other, an "orphan relative" or a "special need relative" of the Australian relative. When one
looks at the definition of those other expressions, it is apparent that the Australian relative referred to in the subclauses may be an unmarried person who has not turned 18.  Is it to be supposed that in all such cases there is no requirement for sponsorship, even in the case of subclause (2) where the Australian relative must also be "settled"? 

The requirements of subclause 104.211(3) are to be interpreted in the context of the whole of Part 104.  A requirement for sponsorship involves an undertaking of a kind referred to in reg 1.20.  In my view and contrary to the submission of the applicant, such an undertaking is not likely to be thought less necessary in the case of Australian relatives who are not adults simply because, at the time of the decision whether to grant or refuse the visa, an acceptable assurance of support must also be given (See regs  2.35 - 2.39 and clause 104.225.)  Clause 104.222 assumes that a sponsorship is required.  That clause does not contemplate that there might not be a sponsorship.  That clause plainly requires that there be such a sponsorship and that the very sponsorship in place at the time of the application should still be in force.  Clause 104.312 also assumes that a person who satisfies the primary criteria will be sponsored.

I do not think that anything said in any of the cases cited by counsel has anything to do with the construction point in this case.  Whilst par 104.211(3)(b) may be, as counsel for the respondent concedes, somewhat infelicitously expressed, its meaning is quite clear: there must be a sponsor who meets the requirements of the paragraph.

Counsel for the respondent instances absurd consequences that would flow from acceptance of the construction for which the applicant contends.  It would mean that there
was no requirement for sponsorship, not merely in the case of unmarried children, but also in the case of married children whose spouses are non-citizens or who no longer live with the Australian relative.  On the other hand, sponsorship would still be required in the case of married children whose spouses are citizens and live with the Australian relative.  I accept her submission that the requirement for a sponsor cannot have been intended to turn upon those kinds of distinctions.

It is not to the point, in determining whether a sponsorship is required under clause 104.211, that a child of tender years or indeed any person under 18 may in fact be an Australian relative in relation to someone who is a "special need relative" as defined in the Migration Regulations.  Plainly a person over 18 may also be such an Australian relative and yet not in a position to provide a sponsorship which could possibly be approved by the Minister.  The situation of an Australian relative who is intellectually handicapped springs readily to mind.

It follows that, in my opinion, the delegate did not err in deciding that sponsorship was required for a preferential family visa.  The application is dismissed with costs.

I certify that this and the preceding four pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 20 March 1996

Counsel for the applicant:              G P Craddock

Solicitors for the applicant:  Parish Patience

Counsel for the respondent:  Lucy McCallum

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  20 March 1996