Yazbeck v Minister for Immigration and Multicultural Affairs
[2002] FCA 980
•16 AUGUST 2002
FEDERAL COURT OF AUSTRALIA
Yazbeck v Minister for Immigration & Multicultural Affairs [2002] FCA 980
Migration Regulations 1994 (Cth) regs 1.03, 1.15A, sch 2 clause 100.221(4)
Family Law Act 1975 (Cth) ss 64B, 66C
Family Law Reform Act 1995 (Cth) sch 2 clauses 2, 3Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 cited
JEAN MOUNIER YAZBECK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 306 OF 2001
SUNDBERG J
16 AUGUST 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 306 OF 2001
BETWEEN:
JEAN MOUNIER YAZBECK
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
16 AUGUST 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant have leave to amend his application in the form filed on 23 July 2002.
2.The amended application be dismissed.
3.The applicant pay the respondent’s costs of the application including any costs relating to the application to amend and the adjournment of the proceedings on 23 July 2002.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 306 OF 2001
BETWEEN:
JEAN MOUNIER YAZBECK
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
16 AUGUST 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
On 17 November 1997 the visa applicant, a 20 year old Lebanese male, applied for a Spouse (Temporary) (Class VF) visa, subclass 309 (“the temporary visa”) and a Spouse (Migrant) (Class BC) visa, subclass 100 (“the permanent visa”) on the basis of his marriage in Lebanon on 16 August 1997 to Beny Yazbeck, an Australian citizen (“the sponsor”). The applicant was granted the temporary visa on 9 February 1998. He arrived in Australia on 18 February 1998. On 28 May 1999 the sponsor informed the Department that her relationship with the applicant had broken down in February 1999, and he had moved from Sydney and was now living in Melbourne. On 7 June 1999 the sponsor submitted a statutory declaration stating that her relationship with the applicant had broken down and that the applicant had used her to obtain entry to Australia. The sponsor restated this in June and December 1999. On 24 June 1999 the Department sent a letter to the applicant inviting him to comment on the sponsor’s withdrawal of support for the visa. He did not respond to the invitation. On 9 March 2000 the Minister’s delegate refused to grant the permanent visa on the ground that the applicant’s relationship with the sponsor was no longer genuine and continuing as defined in reg 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”), and as a result he failed to satisfy the requirements of subclause 100.221(2) in Schedule 2 to the Regulations.
On 3 April 2000 the applicant applied for review of the delegate’s decision by the Migration Review Tribunal. At a hearing on 8 February 2001 the applicant gave evidence that he and the sponsor lived together happily for twelve months after they came to Australia. The sponsor did not like living in Melbourne and moved to Sydney. Her parents look after the two children of the marriage. He gives financial support to the children, and child support of $21.67 is deducted monthly from his income. He said he saw the sponsor and children recently at a cousin’s house.
LEGISLATION
The criteria that have to be met for the grant of the permanent visa are contained in Part 100 of Schedule 2 to the Regulations. There are no criteria to be satisfied at the time of application. Subdivision 100.22 contains the criteria to be satisfied at the time of deciding whether to grant or refuse the permanent visa. Subclause 100.221(1) requires an applicant to meet the requirements of subclauses (2), (3), (4) or (4A). Subclause (2)(b) requires the applicant to be the spouse of the sponsoring spouse. Regulation 1.15A defines the word “spouse”. By reg 1.15A(1)(a) a person is the spouse of another if the two are in a married relationship as described in subregulation (1A), which provides:
“Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b)the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.”
Subclause 100.221(4), which was introduced in December 1996, provides that the applicant meets the requirements of the subclause if, amongst other things:
“(b)the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased;
(c)after the applicant first entered Australia as the holder of [a temporary visa] …
…
(ii)the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.”
The word “custody” is defined in reg 1.03 as:
“(a) the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child.”
The word “access” is not defined.
TRIBUNAL’S FINDINGS
The Tribunal found that the applicant and the sponsor had been living apart on a permanent basis since February 1999, and that their relationship had broken down irretrievably. The applicant was no longer sponsored by the sponsor. It found that the relationship was no longer genuine and continuing. The Tribunal referred to subclause (4) as follows:
“Subclause 100.221(4) refers to the situation where the relationship has ceased … or there are custody/access issues in relation to children of the relationship. There is no evidence that the visa applicant has been granted custody or joint custody of the children under the Family Law Act 1975. There is no evidence of … custody/access issues, so subclause 100.221(4) is not applicable.”
Since the applicant did not satisfy clause 100.221(2), (3), (4) or (4A), he failed to meet one of the criteria for the visa sought, and the Tribunal affirmed the decision to refuse the visa.
THE APPLICATION
The applicant sought review of the Tribunal’s decision. The grounds in his application are that the Tribunal
·erred in finding that the sponsor was not the sponsoring spouse of the applicant
·erred in failing to consider that the relationship was not (sic) an ongoing relationship
·erred in failing to consider that the sponsor was not (sic) the spouse of the applicant
·failed to find that the applicant satisfied the requirements of clause 100.22.
When the application came on for hearing, the applicant abandoned those grounds, and instead contended that the Tribunal
·failed to take into account that the applicant had at least one child to whom he was having post‑separation access in respect of which child the sponsor had a formal maintenance obligation pursuant to s 66C of the Family Law Act 1975 (Cth) (“the Act”)
·erred in failing to apply the criteria laid down in clause 100.221(4)(b) and (c)(ii).
The applicant sought leave to amend his application to raise the new grounds. The matter was adjourned so as to enable the respondent to make written submissions on the application to amend and on the applicant’s new case. The applicant was given leave to file a response to the respondent’s submissions. The respondent filed submissions and the applicant filed a response. I will give the applicant leave to amend the application.
ACCESS TO CHILDREN
The applicant submitted that in stating there was “no evidence of … custody/access issues” the Tribunal ignored its own finding that he had seen his children recently at a cousin’s house. This finding, it was said, provided a clear basis for contending that the applicant satisfied the requirement that he “has … access to … at least 1 child”. It was submitted that the Tribunal had ignored relevant material and asked itself the wrong question, and had thus made a jurisdictional error. This submission is based on an unfair reading of the Tribunal’s decision. The Tribunal’s reasons occupy two and a half pages. On the second page the Tribunal records the applicant’s evidence that he had seen his wife and children recently at a cousin’s house. On the third page the Tribunal summarised subclause 100.221(4) and said there was no evidence of custody/access issues, with the result that the subclause was not applicable. On a fair reading of its short reasons, the Tribunal did not overlook the evidence it set out. Rather it is to be taken as saying that the evidence to which it referred did not establish that the applicant has custody of or access to at least one child.
Before its amendment by the Family Law Reform Act 1995 (“the 1995 Act”), the Act provided for the making of custody and access orders. In 1995 “parenting orders” were introduced. They replaced custody and access orders. Section 64B provides in part as follows:
“(1) A parenting order is:
(a)an order under this Part … dealing with a matter mentioned in subsection (2) …
…
(2)A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)contact between a child and another person or persons;
…
(3)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(a), the order is a residence order.
(4)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(b), the order is a contact order.
…
(8)For the purposes of this Act:
(a)a person has a residence order in relation to a child if a residence order made in favour of the person is in force in relation to the child; and
(b)a person has a contact order in relation to a child if a contact order made in favour of the person is in force in relation to the child …
….”
Subclause 100.221(4)(c)(ii) is intended to cover custody and access orders made under the Act in the form it took prior to 1995 and residence and contact orders made under the Act in its present form. Whoever drafted clause 100.221(4) was aware of the need to accommodate both the new residence and contact orders and the old custody and access orders. That residence and contact orders are new names for the old custody and access orders is made clear by the transitional provisions in Schedule 2 to the 1995 Act. Thus clause 3 provides in part:
“(1)This clause applies if, immediately before the Part VII commencement, an application for an order under Part VII of the old Act of any of the following kinds was still awaiting determination;
(a)an order for the custody of a child;
(b)an order for access to a child …
…
(2)The application must be determined as if it were an application for the corresponding order or orders under Part VII of the amended Act (determined having regard to the effect of clause 2).”
Clause 2 provides in part as follows:
“(1)An order for the custody of a child in force under the old Act immediately before the Part VII commencement has effect, after that commencement as if:
(a)so far as it deals (expressly or impliedly) with the question of the person or persons with whom the child is to live – it were a residence order made under Part VII of the amended Act …
…
(2)An order for access to a child in force under the old Act immediately before the Part VII commencement has effect, after that commencement, as if it were a contact order made under Part VII of the amended Act.”
Part VII of the “old Act” dealt with custody and access orders, and Part VII of the amended Act introduced, amongst other things, parenting orders (ss 64A to 64C).
It is true, as the applicant points out, that subclause 100.221(4)(c)(ii)(B) refers to court orders whereas par (A) does not. However the expressio unius maxim must be applied with caution. See Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. In my view the omission from par (A) of any reference to orders and the inclusion of such a reference in par (B) is just bad drafting. This view is supported by the fact that par (A) refers to “custody or joint custody of, or access to” a child whereas par (C) refers the sponsoring spouse having been granted “joint custody or access by a court”. Paragraphs (A) and (C) are counterparts, par (C) dealing only with “joint custody” because of the (sole) “custody” dealt with in par (A). The Tribunal was correct in stating that there was “no evidence of custody/access issues”. There was no evidence that a court order existed that entitled the applicant to access to the children.
Even if a person can, for the purposes of subclause 100.221(4)(c)(ii)(A), have access to a child in the absence of a court order granting access, the applicant does not establish that he “has access” simply because he happens to have seen the child, whether close up or in the distance. Evidence that the applicant “saw his children recently and his wife at a cousin’s house” does not establish that he has access to his children.
FORMAL MAINTENANCE OBLIGATION
The Tribunal did not refer to subclause 100.221(4)(c)(ii)(E). But it made no reviewable error in not considering whether this element of the subclause was satisfied. Unless the applicant satisfied par (A) it would not assist him that he satisfied par (E).
The applicant relied on s 66C of the Act in order to satisfy the requirement in subclause 100.221(4)(c)(ii)(E) that his wife has an obligation to at least one child under an “other formal maintenance obligation”. Section 66C(1) provides:
“The parents of a child have, subject to this Division, the primary duty to maintain the child.”
The duty imposed by s 66C of the Act is not in my view a “formal maintenance obligation” for the purposes of subclause 100.221(4)(c)(ii)(E). A child maintenance order under the Act will specify the amount of maintenance that is to be provided. See for example ss 66H, 66J and 66K of the Act. An “other formal maintenance obligation” may be assumed by agreement between spouses that one of them will make specified provision for the maintenance of a child. See for example ss 86, 87 and 87A of the Act. In my opinion that is the type of formal maintenance obligation of which par (E) speaks. If the duty imposed by s 66C(1) were a “formal maintenance obligation”, pars (C) and (D) would be rendered unnecessary as would the first limb of par (E). Any applicant whose relationship with the sponsoring spouse had ceased, and who satisfied par (A) or par (B) would, as a result of s 66C(1), automatically satisfy the second limb of par (E). This would be an absurd result which is avoided by the approach I favour. Thereby effect is given to pars (C) and (D) and both parts of par (E), rather than rendering pars (C) and (D) and the first part of par (E) ineffectual. There was no evidence before the Tribunal that the sponsor had assumed a formal obligation to make specific provision for the maintenance of the child to which the applicant claims to have access.
If, contrary to my view, the applicant has access to a child simply as a result of having seen the child on one occasion, so that the Tribunal erred in a manner reviewable under s 476 of the Migration Act 1958 (Cth), I would not have remitted the matter to the Tribunal. There would be no point in doing so because, for the above reasons, the Tribunal could not find that the sponsor has a formal maintenance obligation for the purpose of subclause 100.221(4)(c)(ii)(E).
CONCLUSION
The Tribunal did not err in concluding that the requirements of clause 100.221(4) are not made out. The application must be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 16 August 2002
Counsel for the Applicant: J J Isles Solicitors for the Applicant: Isaac Brott & Co Counsel for the Respondent: C G Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 July 2002 Date of Judgment: 16 August 2002