Sylvester v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1460

FEDERAL COURT OF AUSTRALIA

Sylvester v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1460

MIGRATION – visas – family residence visa – non-dependent child – overseas near relative – whether Migration Review Tribunal fell into reviewable error in finding that applicant usually resided in the same country as his son – whether reviewable error in finding that applicant had had contact with his son during a reasonable period preceding the application – whether any error of law giving rise to judicial review.

Migration Act 1958 (Cth), s 474
Migration Regulations 1994, reg. 1.03, 1.15(1), (2) and (3)

Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 referred to
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to

PHILIP ANTHONY SYLVESTER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W265 of 2002

CARR J
4 DECEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W265 OF 2002

BETWEEN:	PHILIP ANTHONY SYLVESTER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	4 DECEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W265 OF 2002

BETWEEN:	PHILIP ANTHONY SYLVESTER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	CARR J
DATE:	4 DECEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Migration Review Tribunal (“the Tribunal”), made on 14 August 2002, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a subclass 806 Family (Residence) (Class AO) visa (“family residence visa”).  The applicant, who is a national of Malta, applied for a family residence visa on 22 August 1997.  On 30 March 1999, a delegate of the respondent refused the application and, on 29 April 1999, the applicant lodged an application for internal review with the Migration Internal Review Office.  This became an application for review to the Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No. 1) 1998.  On 29 June 2001, the Tribunal affirmed the decision of the delegate not to grant the visa.  An application for judicial review of the decision of the Tribunal was made to this Court.  On 17 October 2001, by consent, the decision was set aside and remitted to the Tribunal for reconsideration according to law.  On 14 August 2002, a differently constituted Tribunal re-affirmed the decision of the delegate of 30 March 2001.  The question is whether the Tribunal fell into reviewable error when it decided that the applicant was disqualified, on two grounds, from being granted a family residence visa as a “remaining relative”.

   FACTUAL BACKGROUND AND STATUTORY FRAMEWORK

2. The applicant was married in Malta on 2 June 1990.  On 7 May 1993 a son, Dean, was born.  Between 31 January 1997 and 28 March 1997, the applicant and his wife and child visited Australia on visitor visas.  They then returned to Malta.  On 4 June 1997 the applicant and his wife separated.  On 9 June 1997, the applicant returned to Australia (without his wife and child) on a Tourist (Short Stay) visa.  That visa authorised the applicant to stay in Australia for three months.  The applicant has since held a number of bridging visas, granted on the basis of his pending application for a family residence visa.  On 16 November 2001, the Family Court of Western Australia granted a decree absolute dissolving the applicant’s marriage.  On 25 January 2002, the applicant married an Australian citizen.

3. In the meantime, on 22 August 1997, the applicant applied for a family residence visa on the basis that he was the “remaining relative” of his parents and two brothers, all of whom reside permanently in Australia. His brother, Mr M J Sylvester, nominated the applicant for the visa. The applicant had to satisfy the criteria prescribed by clause 806.213 of the Migration Regulations (“the Regulations”) as at the time of his application in order to be eligible for a subclass 806 family residence visa (Part 806 was subsequently repealed by Statutory Rule No. 259 of 1999). The relevant provisions of clause 806.213 were as follows:

   “806.21     Criteria to be satisfied at time of the application

   …

   806.213  The applicant is … a remaining relative … of another person who:

   (a)is a settled Australian permanent resident …; and

   (b)      is usually resident in Australia; and
   (c)       has nominated the applicant for the grant of the visa.”

4. The term ‘remaining relative’ was defined in Regulation 1.15 as follows:

   (1)      An applicant for a visa is a remaining relative if the applicant has a relative who:
     (a)     is:

   (i)     a brother, sister or parent; or

   (ii)     . . .
              of the applicant; and
     (b)     is:

   (i)     . . .

   (ii)     an Australian permanent resident; or

   (iii)    . . .; and
     (c)     is usually resident in Australia;

   unless the applicant is disqualified under subregulation (2).

   (2)      An applicant is disqualified if:

   (a)     the applicant or the spouse (if any) of the applicant:

   (i)usually resides in the same country, not being Australia, as an overseas near relative; or

   (ii)has had contact with an overseas near relative during a reasonable period preceding the application; or

   (b)     . . .
     (c)     . . .

   (3)       In this regulation, “overseas near relative” means a person who is:

   (a)     a parent, brother, sister or non-dependent child; or
     (b)     . . .;
   of the applicant or of the spouse (if any) of the applicant but is not a relative of the kind referred to in subregulation (1).” [emphasis added]

5. The terms “dependent” and “dependent child” were defined in Regulation 1.03 as follows:

   “dependent”, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;

   “dependent child” means the natural or adopted child of a person (other than a child who has a spouse or is engaged to be married), being a child:
     (a)     who:

   (i)        has not turned 18; and

   (ii)is wholly or substantially in the daily care and control of that person; or

   (b)     . . .
     (c)     . . .”

   THE TRIBUNAL’S DECISION

6. After referring to the factual, procedural and regulatory background, the Tribunal examined whether the applicant was a “remaining relative”.  It noted that the applicant’s brother was an Australian permanent resident who was usually resident in Australia and that accordingly “… prima facie it appears that sub-regulation 1.15(1) is satisfied”.  It then turned to the question whether the applicant was disqualified under sub-regulation 1.15(2). 

7. The first issue was whether Dean Sylvester was a “non-dependent child”.  The Tribunal noted that at the relevant time the term “non-dependent child” was not defined in the regulations, but had been considered by a Full Court of this Court in Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474. In Jankovic, the Full Court held, as the Tribunal noted, that whether a child is a non-dependent child is determined by ascertaining whether he or she falls within the definition of “dependent child”.  If he or she did not then they are a “non-dependent child”.  Accordingly, in terms of the definition of “dependent child”, the relevant question was whether Dean Sylvester was “wholly or substantially in the daily care and control” of the applicant – see sub-paragraph (a)(ii) of the definitions set out above.  The Tribunal’s reasoning on this point was as follows:

   “39.     As of the date of the visa application the visa applicant was living in Australia and his son was living with his first wife in Malta.  Since 4 June 1997 the visa applicant has not been consulted in relation to his son’s welfare.  According to the visa applicant’s evidence as of 22 August 1997 he provided practically no emotional support to his son and only very infrequent and sporadic financial support to him. 

   40.      In this application, as of the date of the visa application, all of the evidence points towards the visa applicant’s son not being in his care, custody and control.  Accordingly the visa applicant’s son was not his dependent child within the meaning of regulation 1.03 at the time of the visa application. 

   41.      Applying the “non-dependent child” test in Jankovic, the visa applicant’s son, who was 4 years old at the date of the visa application, is not his dependent child and is therefore a non-dependent child.  As the visa applicant’s son is his non-dependent child he is an overseas near relative of the visa applicant as defined in subregulation 1.15(3).”

8. The Tribunal then considered whether the applicant was disqualified under sub-regulation 1.15(2)(a).  That is, whether the applicant usually resided in the same country, not being Australia, as his son Dean Sylvester. 

9. The Tribunal noted that the applicant had lived in Malta until the time of his separation from his first wife on 4 June 1997 and that Dean Sylvester had lived in Malta since his birth.  The Tribunal referred to a portion of a relevant Procedures Advice Manual on the question of the meaning of “usually resides”.  It found that the applicant’s son usually resided in Malta.  No issue is taken with that conclusion.  It also found that, as at the date of the visa application, the applicant was taken to reside in Malta as it was his home country before entering Australia.  The Tribunal concluded its reasoning as follows: 

   “48. It follows from this evidence that the Tribunal finds that the visa applicant resides in the same country, namely Malta, as his son who is an overseas near relative. Accordingly the visa applicant is disqualified from being a remaining relative under subparagraph 1.15(2)(a)(i) of the Regulations.”

10. Although it was strictly not necessary for the Tribunal to consider whether there was a further disqualifying factor, it did so.  It turned to the question whether the applicant had had contact with his son during a reasonable period preceding the application. 

11. Once again, the Tribunal referred to the relevant portion of a Procedures Advice Manual on the question of the meanings of “contact” and “a reasonable period”.  In the Procedures Advice Manual “contact” was said not to mean “physical contact” but rather communication in the sense of a social relationship and “during a reasonable period” was taken to be three years.  The Tribunal’s reasoning on this point was as follows: 

    “50.     According to the visa applicant, between August 1994, being 3 years before the visa application, and June 1997 the visa applicant had regular and daily contact with his son in the family home shared with his first wife in Malta.  From 4 June 1997, some 3 months before the visa application, physical contact between the visa applicant and his son ceased as the visa applicant left the family home in Malta and travelled to Australia via the United Kingdom.

    51.      The evidence before the Tribunal is that the visa applicant has had contact or communication in the sense of a social relationship, with an overseas near relative during a reasonable period, which in accordance with the above policy is taken to be three years, preceding the visa application. 

    52. It follows from the above evidence that the Tribunal finds that the visa applicant has had contact with an overseas near relative during a reasonable period preceding the application. Accordingly the visa applicant is also disqualified from being a remaining relative under paragraph 1.15(2)(a)(ii) of the Regulations.

    53.      . . .

    54.      Accordingly, the Tribunal makes the following findings:

    ·The visa applicant usually resides in the same country, not being Australia, as an overseas near relative.

    ·The visa applicant has had contact with an overseas near relative during a reasonable period preceding the application.

    DECISION

    55.      The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Family (Residence) (Class AO) visa.”

    GROUNDS OF THE APPLICATION AND THE APPLICANT’S SUBMISSIONS

12. The grounds of review set out in the application were as follows:

    “1.      The Migration Review Tribunal erred in failing to find that the natural child of the Applicant, Dean Kirsten Sylvester, was not an “overseas near relative”, or alternatively erred in law by finding that the said child was a “non-dependent child” for the purposes of Regulation 1.15(2) of the Migration Regulations 1994 (Cth), upon the ground that the said Tribunal failed to take account of the true construction and meaning of the phrase “non-dependent child” for the purposes of Regulation 1.03, as amended, thereof and the said Regulations generally.

    2.        Further, or alternatively, the Migration Review Tribunal erred in law to the extent that its decision was not made bona fides, or alternatively without sufficient reference to the power exercised by it, or otherwise exceeded its jurisdiction by the error of law set out in paragraph 1 of the grounds herein.”

13. In written submissions filed on his behalf, the applicant contended that the findings of law made by the Tribunal, that the applicant was disqualified by sub-regulations 1.15(2)(a)(i) and (ii), were premised on the finding that the applicant’s son was a non-dependent child, and in turn, that that finding was not capable of being supported by the facts to which the Tribunal referred.  The applicant submitted further, that even if the Tribunal could be satisfied that the applicant’s son was a non-dependent child, the son was “not so classifiable” as an “overseas near relative” from the date of his birth.  As I understood the submission, it was that if the son was classifiable as a non-dependent child, it would only be from the date of the applicant’s departure from Malta that the child would be an overseas near relative.  In those circumstances, so it was submitted, it could not be said that the applicant usually resided in Malta with an “overseas near relative” or had had contact during a reasonable period preceding the application with an “overseas near relative”. 

14. In oral submissions, Mr A J Aristei, counsel for the applicant, challenged the Tribunal’s findings that Dean Sylvester was a non-dependent child.  He submitted that, on the evidence, the only finding “available” was that the applicant’s son was a dependent child.  Up until a point being three months before the application, Dean Sylvester had been dependent on the applicant for what counsel described as “the vast majority” of the three years before the application for the visa.  The applicant had had joint legal custody of his son until November 1998.  Counsel submitted that the Tribunal had been “preoccupied” with the situation as at the date of the application.  The Tribunal should not have been satisfied, so it was put, that the applicant was usually resident in Malta.  All the material before it was “unilaterally against” that conclusion.  The applicant had resided in Australia for three months at the time of the application, had done so ever since and had lodged an application for permanent residency.  Counsel submitted that the Tribunal should not have been satisfied that the applicant was usually resident in Malta at the time when he made his application. 

15. In relation to the application of s 474 of the Migration Act 1958 (Cth), counsel submitted that notwithstanding the decision of a Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, the Tribunal’s decision was still judicially reviewable on the principles explained by Black CJ in the matter of Turcan which was one of the five appeals heard by the Full Court. In this matter, so counsel submitted, s 474(1) did not have the effect that the Court had to proceed on the footing that the Tribunal’s “satisfaction” existed where it is shown to be founded upon an erroneous answer to a legal question – NAAV at pars [30], [31] and [36].  The applicant contended that the Tribunal had either failed to exercise its jurisdiction or acted in excess of jurisdiction by falling into legal error and in its approach to the matter of being satisfied that there existed a ground of disqualification. 

    MY REASONING

16. The first question which the Tribunal was obliged to ask, and which it did ask, was whether Dean Sylvester was a non-dependent child of the applicant.  It had to decide that question as at the time of application (22 August 1997).  The applicant did not submit that the Tribunal had erred in law in its understanding and application of the Full Court’s decision in Jankovic. 

17. Rather, the applicant’s submissions, summarised above, relied upon his son’s dependency during what was described as “the vast majority” of the three years before the date of application for the visa, and his continued role of joint custodian which existed until November 1998. 

18. In my view, the Tribunal did not err in the manner contended for by the applicant. 

19. The evidence was that the applicant had left his wife and son some 2½ months earlier, had not been consulted in relation to his son’s welfare, had provided practically no emotional support to his son and only very infrequent and sporadic financial support to him.  The son was living with the applicant’s wife in Malta as at the relevant date.  The relevant issue [in terms of sub-paragraph (a)(ii) of the definition of “dependent child”] was whether or not Dean Sylvester was wholly or substantially in the daily care and control of the applicant. 

20. As the Tribunal noted, all the evidence pointed towards the applicant’s son not being in his daily care and control as at the date of the application. 

21. Not only was the Tribunal’s finding on this point open to it, in my opinion, but any other finding would have been extraordinary.  In my view, it is quite clear that the Tribunal did not err in law in finding that Dean Sylvester was not in the applicant’s daily care and control.  The applicant’s oral submissions boil down to an impermissible attempt to argue the factual merits of the matter. 

22. Once the Tribunal had found that Dean Sylvester was a non-dependent child at the time of the visa application, he fell automatically into the definition of “overseas near relative” in sub-regulation 1.15(3).  Whether he was so classifiable at any earlier time is, in my opinion, irrelevant.  For the purposes of the regulatory scheme, Dean Sylvester became the relevant “overseas near relative”.  He was the person in respect of whom the tests expressed in sub-regulation 1.15(2)(a)(i) and (ii) were to be applied.  It was common ground that at the time of the application Dean Sylvester usually resided in Malta. 

23. The next question was whether, at that time, the applicant also usually resided in Malta.  In relation to that question there was the following evidence.  First, in his application for the visa the applicant was required to state his country of usual residence.  He gave that country as being “Malta”.  In response to other questions in the application, the applicant stated that he had been employed almost continuously in Malta from November 1989 to June 1997.  He had surrendered his British citizenship in order to obtain Maltese citizenship.  The evidence was that the applicant had lived in Malta until 4 June 1997, which was only 2½ months before he lodged his application. 

24. In my view, there was abundant evidence from which the Tribunal was justified in concluding that the applicant was usually resident in Malta at the time of making his application.  I reject the applicant’s submission that the Tribunal was “preoccupied” with the situation as at the date of the application.  Its duty was to assess the situation as at that date, and it did so. 

1. In relation to the written submission that it could not be said that the applicant had contact with an overseas near relative during the period of about 2 years 9 months before his departure from Malta because Dean Sylvester was not classifiable as an overseas near relative during that period, I refer to my reasoning above on this point of classification.  That is, there is no requirement of such historical classification.  The purpose of the term “non-dependent child” is to identify the relevant “overseas near relative” at the time when the application is made.  The next step is to assess what contact the applicant has had with that person during a reasonable period preceding the application.  There was ample evidence before the Tribunal for it to conclude that the applicant had had contact with Dean Sylvester during that period. 

2. In my view, for the foregoing reasons, the Tribunal did not err in the various ways alleged in ground 1 of the application. 

3. In relation to ground 2, the allegation of the absence of bona fides was not pressed.  Ground 2 also depends upon the errors of law asserted by the applicant in Ground 1.  As I have found that there were no such errors of law, it is not strictly necessary for me to consider ground 2 further. 

4. However, I will say the following in relation to ground 2.  First, as I have just noted, there was no suggestion that the Tribunal’s decision was other than a bona fide attempt to exercise its power.  It is quite clear that the decision relates to the relevant subject matter of the Migration Act.  It is also quite clear that the Tribunal’s decision was reasonably capable of reference to the power given to it.  Finally, for the reasons earlier given, the Tribunal’s decision, in my opinion, most definitely did not contravene a final limitation upon its powers duties and functions. 

   CONCLUSION

5. For the foregoing reasons the application will be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:             4 December 2002

Counsel for the Applicant:	Mr A J Aristei
Solicitor for the Applicant:	Messrs Mark Andrews & Associates
Counsel for the Respondent:	Mr J D Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 November 2002
Date of Judgment:	4 December 2002