Skea v Minister for Immigration, Local Government and Ethnic Affairs

[1994] FCA 365

BRIAN WILLIAM SKEA v THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. NG 807 of 1993
FED No 365/94
Number of pages - 10
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
MOORE J

CATCHWORDS

Immigration - judicial review - decision to refuse former resident visa - whether applicant was Australian permanent resident for "greater part" of life before eighteen.

Migration (1989) Regulations, reg55, "greater part"
Acts Interpretation Act (1990) (Cth), s15AA

Bromley v Tryon (1952) AC 265
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Trevisan v Federal Commissioner of Taxation (1991) 29 FCR 157
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249

HEARING

SYDNEY, 6 June 1994
#DATE 10:6:1994

Counsel for the Applicant: Mr S.L. Walmsley

Solicitor for the Applicant: Bernard Collaery and

Associates

Counsel for the Respondent: Ms E. Wilkins

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

1. The application be dismissed.
2. The applicant to pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

MOORE J This is an application under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") refusing to grant Mr Brian Skea ("the applicant") a family and other close ties entry permit which is a permanent entry permit.

1. The applicant was born in February 1963 in Scotland. In 1966 his family came to Australia and the applicant remained in Australia until 1973 when he returned to Scotland with his mother. His return appears to have arisen suddenly and as a result of his father leaving the family home. However after returning to the United Kingdom he was reunited with his father with whom he then lived together with his brothers and sister. When the applicant was twenty his father, brothers and sister returned to Australia though the applicant remained in the United Kingdom. Those relatives of the applicant are now Australian citizens. The applicant has since married and has two children. He has returned to Australia on three occasions, in 1988, 1990 and most recently arriving in October 1992 on a temporary entry permit.

2. On 1 December 1992 the applicant made the application for the permanent entry permit on a basis that is not presently relevant. The application was unsuccessful on this basis though the Minister further considered whether the applicant was eligible for a family and other close ties entry permit on another basis which involved considering whether the applicant was eligible for a former resident visa. The Minister has detailed in a supplementary written submission the chain of legislative provisions which permitted the applicant's position to be considered in this way. It is unnecessary for me to repeat it as it is not relevant to what is in issue. The Minister decided that the applicant did not satisfy the criteria for the entry permit because he did not qualify for a former resident visa. This application for judicial review is, by consent, to be treated as relating to that decision and, in particular, whether the applicant qualified for a former resident visa.

3. An application for such a visa is assessed by reference to the Migration Act 1958 (Cth) ("the Act") and the regulations made under the Act. Those regulations were relevantly made in 1989 (Statutory Rules 365 of 1989) but have since been repealed by the Migration (1993) Regulations (Statutory Rules 367 of 1992). However the 1993 regulations preserve the operation of the earlier regulations in relation to any application for an entry permit or visa made prior to the 1993 regulations coming into force (viz. on 1 February 1993) both when considering the application and any review of it (reg8.2).

4. An application for a former resident visa has to meet the requirements of reg55 of the 1989 regulations which provides:
   

"55. The additional criteria in relation to a former resident visa are the following criteria:

(a) the applicant spent the greater part of his or her life before the age of 18 in Australia as an Australian permanent resident;

(b) the applicant did not at any time acquire Australian citizenship;

(c) the applicant has maintained business, cultural or personal ties with Australia;

(d) if the Minister is not satisfied that the applicant satisfies public interest criteria in relation to becoming established in, and living in, Australia - the applicant has obtained sponsorship and an assurance of support."

1. This application for judicial review raises a narrow point of construction though plainly an important one for the applicant.

2. The applicant resided in Australia from the age of three until the age of ten. He thus resided in Australia for less than half his life before attaining the age of eighteen. Regulation 55 requires the applicant to have spent "the greater part" of his life before the age of eighteen in Australia as an Australian permanent resident. It appeared to be common ground that the criteria in reg55 were satisfied save for (a) and, in relation to (a), the only issue was whether the applicant satisfied the "greater part" requirement of the regulation. There was no suggestion that the applicant was not an Australian permanent resident between 1966 and 1973 though neither was it suggested he was in any other period.

3. The applicant submits that the circumstances of an applicant in the period he or she has been an Australian permanent resident in Australia are relevant in determining whether that period constitutes a "greater part" of his or her life until the age of eighteen. If the period is constituted by formative years of significance in the development of the applicant as a potential permanent resident or citizen then they may be "the greater part" of the life even if the period is shorter in duration than the period when the applicant is not in Australia as an Australian permanent resident. Factors relevant to such an assessment of whether the period was constituted by formative years of significance, might be the child's cultural development, schooling and language acquisition.

4. The respondent submits that the provision requires consideration only of the period of time the applicant was in Australia as an Australian permanent resident and reg55(a) is only satisfied if that period exceeds half of the period prior to the applicant attaining the age of eighteen, namely, nine years.

5. In determining the proper construction of the regulation the starting point is the ordinary meaning of the words in context. The adjective "greater" is a comparative and when qualifying the noun "part" in the phrase "part of (a) life" of a specified duration clearly refers, in my view, to a period of time the length of which exceeds the length of the period with which the comparison is made being the other part of the entire period. This meaning of the expression is consistent with the observations of Lord Simonds in Bromley v Tryon (1952) AC 265 at 276 when discussing the meaning of the expression "the bulk" in a will:
   

"I think that according to the ordinary use of language the bulk means the greater part, which may according to the subject-matter refer to area, number or value. And that I may not be thought guilty of a solution which is equally obscure, I will add that "greater part" means anything over one-half."

However having regard to the context in which that observation was made, which I need not detail, it is of no real assistance beyond indicating what a meaning of the expression "greater part" might be.

1. The applicant referred to and relied upon that part of the definition of "greater" in the Oxford Dictionary which says: "the greater: that or those of greater size, importance, eminence, etc." and the definition of "great" in the Macquarie Dictionary which says: "5. distinguished; famous. 6. of much consequence; important." The first of these two definitions is of the word "greater" as a substantive, that is, a word functioning as a noun. In reg55(a) it is plainly used as a simple adjective. An earlier entry in the same definition of "greater", under the general heading of adjective, reads: "the greater part, sort, etc: the larger of two parts into which any whole or quantity is divided; the more considerable number or quantity (of); the majority."

2. I do not see how the word "greater" and the expression "greater part" can have that meaning advanced by the applicant in the context in which it appears. The periods to be compared are those when an applicant was in Australia as an Australian permanent resident and those when the applicant was not. In my view, the language of the paragraph in its entirety provides no basis for giving "greater" a meaning other than as a comparative and the language of the paragraph as a whole leaves no room for comparisons other than of lengths of periods of time in the way I have just discussed.

3. The applicant referred to s15AA of the Acts Interpretation Act 1901 (Cth) and the joint judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321. Section 15AA requires a court to prefer a construction that would promote the purpose or object of the Act to one that would not. I have already indicated that for my part I have difficulty in seeing how the words can bear the meaning advanced by the applicant. As Burchett J said in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162:
   

"Section 15AA requires a court to prefer one construction to another. Such a requirement can only have meaning where two constructions are otherwise open. The section is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate; a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the Act, must be found in the words of Parliament. As Bowen CJ said in Re News Corporation Ltd (1987) 15 FCR 227 at 236: "A(n) ... important rule in this context is that embodied in s 15AA of the Acts Interpretation Act 1901 requiring the court to lean towards the construction that will promote the purpose of the Act. In the end the task of the court is to ascertain and to enforce the actual commands of the legislature: see Scott v Cawsey (1907) 5 CLR 132 at 155. This will best be achieved by studying the words used and the context and the purpose or object underlying the Act." To similar effect, Fitzgerald J said in Commissioner of Taxation (Cth) v Trustees of Lisa Marie Walsh Trust (1983) 48 ALR 253 at 278:

"(E)ven if the extrinsic material does reveal the legislative purpose, there will continue to be boundaries beyond which the words used will not stretch even where it is known that they were intended to do so.""

1. However even if the words can bear the meaning advanced by the applicant, the question s15AA requires a court to address is whether one construction promotes the purpose of the Act and another does not. It is not which would best achieve the objects of the Act: see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ.

2. The Act and the 1989 regulations are, in part, directed to establishing a regime for identifying people who might, for a range of reasons, be permitted to reside in Australia when they otherwise lawfully could not. I will assume, as the applicant submits, that a legislative purpose of reg55(a) is to identify people who are "more likely to fit in with the community" (but see reg55(d)). The period of nine or more years is a significant one and whatever ages it spans it is likely to include years of relevance to the applicant's capacity to assimilate even if some years might be more critical than others. I see no basis for concluding that a provision which identifies people who were usually resident in Australia for nine or more years before the age of eighteen did not promote that object. Section 15AA would therefore have no application in choosing between the construction I prefer and that advanced by the applicant.

3. In Cooper Brookes, supra, at 321, Mason and Wilson JJ said:
   

"If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

1. If the meaning attributed to the regulation by the applicant is to be compared with the meaning I have discussed, then the latter must, in my view, be treated as an interpretation with "a powerful advantage in ordinary meaning and grammatical sense", and is not one that I view as unintended. The regulation, construed in the way I prefer, provides an objective means of ascertaining whether the applicant for the visa had been an Australian permanent resident for a period of sufficient length to have developed a link with Australia which would warrant the grant of the visa. That does not appear to me to be an unintended result.

2. I should also add that the construction of reg55(a) I have discussed is consistent with the regulations as a whole. As I earlier indicated reg55 was made in 1989 and it was made as part of an entire set of regulations to operate in conjunction with the Act which itself was significantly amended in that year. At that time reg127 was also made which dealt with the criteria for extended eligibility (family) entry permits. It did not then contain a criterion which concerned a person who:
   

"(a) at the time when the application for the entry permit is decided, the applicant:

(i) .....

(vi) being a person aged 18 years or more:

(A) .....

(B) has, before attaining the age of 18 years, been in Australia for the greater part of the period of time that the Minister regards as the applicant's formative years; and

(C) .....

(b) ....."

1. That criterion was introduced by amendment made by Statutory Rules 1990 No. 402. Regulation 127(a)(vi)(B) is in language markedly different from reg55(a) yet the applicant's submission proceeds as if they mean the same or substantially the same. While I do not attach great significance to the use of different language in reg127(a)(vi)(B), it does suggest that it is unlikely that such a different formulation would have been adopted in 1990 when drafting that amendment had the intention earlier been to establish in reg55(a) a criterion to the same or similar effect.

2. It is clear from the departmental file which is in evidence, that the position of the applicant was viewed with some sympathy by the departmental officers considering the application and counsel for the Minister conceded as much at the hearing. Having regard to the applicant's circumstances, I can understand why the departmental officers adopted that position. However the Court's task is limited to reviewing decisions to determine whether the decision maker has erred in law. It would already be obvious that I do not accept that the construction of reg55 adopted by the Minister was wrong. It was correct. No error of law has been established and I dismiss the application with costs.