Zeng v MIMIA
[2005] FMCA 546
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZENG & MINISTER FOR IMMIGRATION | [2005] FMCA 546 |
| MIGRATION – Review of Migration Review Tribunal decision. |
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), rr.1.03, 1.05A
Australian Competition & Consumer Commission v Worldplay Services Pty Ltd [2004] FCA 1138
Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690
W148/00A v Minister for Immigration & Multicultural Affairs (2001) FCA 679
| Applicant: | QING YI ZENG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 507 of 2004 |
| Delivered on: | 27 April 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 27 January 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Dr Donaghue |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue, quashing the decision of the Migration Review Tribunal made on 1 March 2004.
That a writ of mandamus issue, requiring a differently constituted Migration Review Tribunal to determine the matter according to law.
The respondent do pay the applicant’s costs fixed in the sum of $6,500.00.
FEDERAL MAGISTRATES |
MLG 507 of 2004
| QING YI ZENG |
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
REASONS FOR JUDGMENT
The applicant seeks a visa as an aged dependant relative of her son, Ming Can Lin (the nominator). The applicant was born on 15 September 1934 and is now a widow who is 70 years of age. Prior to coming to Australia the applicant was living in Guanghzou, China, as a frugal pensioner
The applicant applied for the dependant relative visa on 7 December 1999 when she was 65 years of age. The Minister's delegate refused to grant her a visa on 15 February 2002 following which she applied to the Migration Review Tribunal (‘the MRT’). The MRT affirmed the decision of the delegate on 1 March 2004, following which the applicant applied for judicial review in the Federal Court of Australia. The matter was remitted to the Federal Magistrates Court for hearing and determination.
The delegate found that the applicant satisfied the various requirements for the visa save for the requirement that is in dispute: whether or not the applicant was an ‘aged dependant relative’ of her son, the nominator.
The term ‘aged dependent relative’ is defined in regulation 1.03 as follows:
aged dependent relative, in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)has never married, or is widowed, divorced or formally separated from his or her spouse; and
(b)has been dependent on that person for a reasonable period, and remains so dependent; and,
(c)is old enough to be granted an age pension under the Social Security Act 1991;
The delegate and MRT accepted that the applicant fulfilled requirements (a) and (c) of this definition. It is disputed that the applicant had been dependant upon her son for ‘a reasonable period, and remained so dependent’.
The definition of ‘dependent’ is set out in regulation 1.05A as follows:
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d) a Protection (Class XA) visa; or
(e)a Refugee and Humanitarian (Migrant) (Class BA) visa; or
(ea)a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
The term ‘wholly or substantially’, as it appears in regulation 1.05A, has been considered in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 where the Full Court reviewed the authorities, saying:
2. In most discussions of dependency under this and similar legislation, emphasis is given to the meaning of the qualifying words "wholly", "substantially", "mainly", "partially" and the like. Understandable though that approach is, it sometimes tends to forget that the principal concept is the dependency itself. I agree with Justice Madgwick that whether a person is dependant on another will be a matter for practical and commonsense assessment in the circumstances of each case.
3. In Commissioner for Superannuation v Scott [1989] 13 FCR 404, a Full Court of this Court (Fisher, Spender and Pincus JJ) stated that "dependency" means a "need for support" and that a person does not necessarily cease to have dependency merely because the person bearing the dependency is not satisfying the need at a particular time. In Minister for Immigration & Multicultural Affairs v Pires [1998] 160 ALR 97, Justice Mansfield drew a distinction between the need for financial support, which is dependency, and the actual provision of that support which is not an essential element of dependency. I respectfully agree with this formulation: see also Moon v Minister for Immigration & Multicultural Affairs [1998] FCA 1762.
4. In my opinion, these respondents did not receive attention to their situation by the Minister's delegate fashioned by these concepts. A narrow approach was taken of comparing the financial support they receive from two sources and determining in a far too limited mathematical way which source of support predominated. The problem with this approach was that it constricted the words "wholly or substantially" and quite omitted to consider "dependency" in any real sense at all as required by the regulations.
…
7. At first instance, the parties were agreed that the appropriate meaning of "substantially" in the present context was established by the decision of the Full Court in Commissioner for Superannuation v Scott (1987) 13 FCR 404. Scott rejected a line of authority which held that "substantially", in the phrase "wholly or substantially dependent", signified only that the dependency must be more than trivial, minimal or nominal, and preferred a line of authority that "substantially" meant "primarily, essentially or in the main".
8. Whether a person is wholly or substantially dependent on another is ultimately a question of fact. However, the trial judge found that the Delegate impermissibly foreshortened her enquiry by simply calculating the amount of the financial support provided by the supporter, and determining whether this was outweighed by the pecuniary value of the support provided by the refugee centre, without considering whether the supporter's contribution was essential for the respondent's support. His Honour said:
"... in some circumstances, it is appropriate to introduce the concept of essentiality, unconditioned by notions of predominance, to give reasonable meaning to the idea of substantial dependence."
His Honour gave as an example the position of A who needs $20 per week for bare survival. A gets $2 per week from B as well as $18 per week from C. In his Honour's view A is substantially dependent on B as well as on C.
9. Whilst we agree that the Delegate impermissibly foreshortened her enquiry by limiting it to a comparison of the monetary value of the respective contributions made by the refugee centre and the supporter to the support of the respondents, we come to that conclusion for a different reason than the reason which appealed to his Honour. In particular we do not agree, with respect, with his Honour's conclusion that the concept of essentiality, unconditioned by notions of predominance, gives reasonable meaning to the idea of substantial dependence.
10. Scott's case establishes that "substantially" where used in the phrase "wholly or substantially dependent" is appropriately paraphrased by the words "in the main", or "as to the greater part": Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, per Hill J. In Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418, 422 the Full Court held that the phrase "the whole, or substantially the whole, of the money paid for the purchase" in s 116(3) of the Bankruptcy Act1966 would be satisfied where "nearly all of" the money used in payment comes from protected funds, but it is not sufficient for a significant part of the purchase price (in that case almost half) to come from protected funds.
11. Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially".
12. We respectfully disagree with his Honour's conclusion, in the example referred to in [3] above, that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon C that A is mainly dependent. Whilst B's contribution may be essential to A's support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking.
13. However, in Scott, Fisher and Spender JJ said that a person may be dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other. Thus there may be cases in which a purely quantitative approach will not necessarily determine the issue of dependence. And, in Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97 Mansfield J held that the expression "wholly or substantially dependent" was intended to convey that the visa applicant had a need to rely upon another person for financial support, rather than simply describing the fact that another person was providing that financial support.
However, such a strict approach limited to apparent mathematical purposes is not the end of the matter. As the Full Court explained, the matter must be considered in the context of the relationship of the parties. Branson and Healey JJ, went on to state:
14. The issue of substantial dependency is to be determined at the time of decision, but the enquiry is as to the state of affairs subsisting at that point in time which may involve consideration of earlier events, and of future probabilities. In Aafjes v Kearney (1976) 50 ALJR 454, 458 Gibbs J said that the question of whether there is dependence at a particular date is not to be answered by looking only to the circumstances as they existed at that date; past events and future probabilities have to be considered.
15. There was material before the Delegate which suggested that the traditional role of the eldest son in Serbian society is to look after and support his aged parents and disadvantaged brothers and sisters. There was material before the Delegate which might have led the Delegate to conclude, had she considered the question, that until the respondents were forced to flee the family farm in the face of advancing Croatian troops in January 1993, the respondents were substantially dependent on the supporter for financial support, as the farm was their source of income, and it was worked mainly by the supporter and his sisters, as the parents were elderly and unable to endure the physical demands of farming. There was material before the Delegate which was capable of leading to a conclusion that dependence of the respondents upon the supporter continued until he migrated to Australia in 1994. The respondents claimed that the supporter continued to provide financial assistance from Australia, both before and after the respondents moved into the refugee centre in September 1996. In essence the respondents' case before the Delegate was that the supporter both recognised and endeavoured to perform the traditional role of the eldest son in a Serbian society of which the respondents and their supporter were members. Whether that claim was made out would involve amongst other things, a consideration of the impact, if any, of the supporter's migration to Australia upon the relationship which then existed between the respondents and the supporter.
16. In our opinion, the trial judge was correct when he said that the issue of whether the state of affairs which subsisted at the time of decision is one in which the respondents are wholly or substantially dependent upon the supporter must be considered in the light of all of the relevant circumstances. In a case such as the present, to restrict the enquiry to a consideration of the comparative financial contributions of the refugee centre and the supporter to the support of the respondents provides too narrow a focus for a determination of the issue of substantial dependency.
…
18. Given that financial dependency can exist notwithstanding that it is not being met, and given the abnormal conditions subsisting in FRY [the Former Republic of Yugoslavia] at the relevant time, a broader consideration of the respondents' financial position and of their personal relationship with the supporter was required, in order to determine whether the status of the respondents at the relevant time was that of persons wholly or substantially dependent on the supporter for financial support.
19. That requires the taking of, or at least giving consideration to, the taking of a longer term view than that adopted by the Delegate. It would invite consideration, for example, of whether the respondents were financially dependent on the supporter prior to their entry into the refugee camp, and whether the circumstances surrounding their stay in that camp produced a fundamental change in that relationship. Whilst the entitlement to remain in such a camp may be of indefinite duration, it is not the expectation of those who provide, or those who use facilities of that nature, that they are a permanent substitute for a normal life.
Other difficulties with the definition present themselves, for example, identifying precisely the type of needs that must be taken into account. In Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 Einfeld, Branson and Hely JJ stated that:
…a broad practical judgment is required in the circumstances of the particular case as to what is encompassed by the notions of dependence and support.
The reasoning in Graovac’s case has recently been applied in another context. In Australian Competition & Consumer Commission v Worldplay Services Pty Ltd [2004] FCA 1138 Finn J said:
109 It has been recognised in a number of legislative contexts that the word "substantial" is imprecise and ambiguous and that "its meaning must be taken from its context": Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 563; Tillmans Butcheries Pty Ltd v Australasian Meat Industries Employees’ Union (1979) 27 ALR 367. The present setting is no different. It also is well accepted that where the word "substantially" is used in a composite formula such as "wholly or substantially", it must (a) be construed "alongside the word ‘wholly’ and not by reference to what it does not mean": Commissioner for Superannuation v Scott (1987) 13 FCR 404 at 408; Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690; and (b) be coloured by that proximity.110 The use of the composite formula in s 65AAD recognises that there may be a number of inducements to make a participation payment, and if such be the case, their relative significance must be considered. A participation payment could, for example, be induced substantially by the s 65AAD "prospect" held out while another and lesser inducement was the use or enjoyment of the goods or services being provided. Where multiple prospects are held out, if a particular prospect is to be characterised as the substantial inducement, it must be the predominant inducement: cf Graovac at [11]. This said, I consider it is unlikely to be helpful to engage in further adjectival elaboration of the word "substantially" in this setting bearing in mind that what one is characterising is a reason for action.
What can be identified from the definition and the decisions is that a proper determination of the question of substantial dependence will require considerations of at least the following factors:
a)the nature of the person's needs (within the meaning of the regulations);
b)the extent to which those needs are being met by the person from their own resources;
c)the extent to which the needs are being met by the nominator; and
d)whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.
In many cases this will require a consideration of the circumstances in the different periods of time leading up to the date of the application and the nature of future support having regard to the relationship (see for example the various circumstances prevailing in Graovac).
The MRT must then determine whether or not any dependence that it may have found was for a ‘substantial period’. There is no specific definition of a ‘substantial period’. This must be determined by considering the facts and circumstances of the particular case. The following factors would need to be relevant:
a)the actual period of dependence;
b)the reason for the dependence; and
c)the extent or nature of the dependence.
In this case the MRT set out a list of the material that was before it and some material that it had obtained from its own investigation as to the rates of pensions available to the applicant in Guangzhou and the cost of living in Guangzhou. The MRT stated that it had received information that the applicant would receive RMB880 a month together with a monthly medical allowance of roughly RMB100, and that the minimal cost of living in Guangzhou is RMB300 to 360 per month.
The apparent absurdity of this material was pointed out by the applicant's agent who asked the rhetorical question as to why the Chinese government would provide a pension to a former hostel worker that would be three times the alleged minimal cost of living in Guangzhou. Other material that was before the MRT from the Internet indicated that the average income in Guangzhou was $US7,107.00 (around RMB63,000 per annum or RMB5,250 per month), and that Guangzhou was the seventh most expensive city in the world in which to live, according to "Costly Living in Asia" on 3 May 1999: ranking above London and below Moscow and said to have a cost of living 121% of that of New York.
The applicant’s son and advisors had responded to the MRT information about increases in the pension with a document from the pension authority which advised that the increases in the pension occurred in March 2002, November 2002 and July 2003 due to increases in consumer prices. They also stated, in that response, that rent on an apartment in Guangzhou was now around RMB800 per month, and that other expenses had increased such that:
a)A bottle of gas for cooking would now cost around RMB65 per month;
b)A consultation with a doctor (including medication) over RMB100;
c)Electricity and Water for a family of three was then costing around RMB230 per month;
d)That there was now a garbage collection levy of RMB20 per month on apartments.
It must be recalled that the applicant had come to Australia in November 1999 and remained here since then, wholly supported by her son.
The MRT sets out its findings on these issues as follows:
45. The Tribunal has concerns as to the accuracy of the information submitted by the review applicant. The Tribunal relies on information provided in order to make a determination as to whether applicants are entitled to the grant of a visa in accordance with the law.
46. In the Tribunal’s letter of 29 May 2003, the Tribunal sought information from the review applicant including information about her income, investments and assets. The Tribunal asked the review applicant at the hearing about her bank accounts in China. The Tribunal specifically asked the review applicant about the bank account into which her pension is paid, and the review applicant indicated that it was previously paid into the Industrial and Commercial Bank of China, that her bank account was closed when she came to Australia, and that her daughter goes to her work unit and signs for the money. She provided no other information or qualification to her evidence at the hearing. A submission by the migration agent also stated that the review applicant closed her bank account in China. After the Tribunal disclosed information (received post hearing) that her pension is paid into her bank account, a document was submitted stating that her work unit had set up an account for her. Her bank statements/passbooks were not submitted. Despite the Tribunal’s letter of 29 May 2003, the only information about the review applicant’s income was that her pension was 475 RMB. The migration agent submitted that the pension of 475 RMB per month as of 7 June 1999 is “probably the high watermark because her hostel has been making fewer and fewer profits over the years”. This is in fact was not correct [sic]. When the Tribunal disclosed post hearing that it had information that her pension had increased, the review applicant provided documentation post hearing confirming that this was the case.
47. The Tribunal accepts the submissions regarding the cost of living in Guangzhou and the Tribunal also notes the amounts received by pension and the information provided regarding average incomes. The Tribunal notes that one bank receipt dated March 1996 (which is more than three years before the time of application) has been submitted indicating that the nominator sent the review applicant the amount of $1 ,000. The submissions that the nominator gave lump-sum amounts to the review applicant in person and through other persons (who provided statutory declarations) has not been corroborated by the nominator’s bank statements showing withdrawal entries of these amounts at or around the relevant times. The Tribunal considers that where it is submitted that a person has been wholly or substantially reliant on another person for financial support to meet basic needs for food, clothing or shelter, one would reasonably expect a regular pattern of support given the nature of the needs. The Tribunal put this to the review applicant at the hearing. Her response was that her son worked and that it was too much trouble to remit funds each month and that he planned to send money through persons going to China. While it has been submitted that the review applicant’s other children in China have been unable to assist because of unemployment, there has been no corroboration of this by unemployment cards. The Tribunal accepts that the nominator supported the review applicant in the period of about seven months prior to the application when she was residing with him in Australia; however the support of visiting family members is not necessarily an indication of a need for support. While the Tribunal accepts that the nominator has provided funds to the review applicant, the Tribunal is not satisfied on the evidence that the review applicant was wholly or substantially dependent on the nominator to meet her basic needs for a substantial period of time immediately before the time of application. The review applicant does not meet Regulation 838.212.
It appears that the MRT relied upon policy guidelines which it summarised at paragraph 44 as follows:
44. Policy guidelines state that in regards to the claimed financial dependency, the applicant (and, if appropriate, the sponsor) should supply documented evidence that funds have actually been sent to the dependent relative on a regular basis over a reasonable period. ‘Reasonable period’ (of dependency) is not defined in migration law. Under policy, a reasonable period is taken to be three years. However, PAM 3 states that it is always open to decision-makers to decide that dependency has existed for a ‘reasonable period’, being less than three years, if otherwise satisfied that the applicant has received from the Australian relative ongoing support (consistent with the policy guidelines on dependency).
It is not possible to ascertain precisely what the MRT accepted as being the cost of living in Guangzhou in the first sentence of paragraph 47 of its reasons. It is not clear whether the MRT was accepting that at the time the pension was around RMB475 per month the applicant’s expenses were as set out in her earlier submission (around RMB1600 per month), and that at the time of making the decision her expenses to live in Guangzhou would be in the order set out in the later submissions as referred to in paragraph 16 above. If, as the evidence appears in the court book, the expenses of the applicant in China were more than double her pension, she therefore appears to have been substantially dependant upon a source or sources of support other than her pension however no specific findings have been made in this regard.
The MRT was strongly influenced by lack of corroboration by bank statements (although these do not appear to have been specifically requested of the applicant or nominator) and the MRT's view that in a case of whole or substantial dependence, one would expect a regular pattern of support. The MRT did not make a finding as to when funds were provided by the applicant’s son or the amounts of those funds, although appears to have accepted that at least some funds were provided. The MRT has not found that the applicant was receiving funds from any other source.
The MRT concluded that the seven months of support provided to the applicant by the nominator whilst she has been living in Australia did not necessarily demonstrate a need for support on the basis that family would normally support visiting family members. However, even if this period is considered a holiday, the applicant’s ‘need for support’ remains, at least to the extent that the need existed if she were living in China.
Whilst the MRT expressed concerns as to the accuracy of the information submitted by the applicant, it made no findings as to whether it accepted her evidence, or rejected her evidence. In W148/00A v Minister for Immigration & Multicultural Affairs (2001) FCA 679, Tamberlin and R D Nicholson JJ stated:
Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
Added to the difficulties of the reasoning process of the MRT, is the way it dealt with the evidence on declaration. The statutory declarations, by Yan Ping Liang, Zhao Xue Wei, Ya Shi and Ming Can Lin depose to the delivery of $5,000 between December 1997 and August 1998. In addition, the nominator deposed to having given his mother $3,000 on each of three occasions occurring in 1996, 1998 and 1999 and a further $1,000 when he visited her in China in May 1999. It appears clear that the delegate accepted part of this evidence as the Delegate concluded:
The applicant has submitted statutory declarations from her son and from friends of his, stating that they took money to Ms Zheng when they visited China. The amounts given to the applicant from her son total $12,000 in the period 1996-99, averaging $3000 per year. It is obvious that the nominator has been generous to his mother and no doubt has contributed to her having quite a comfortable life in China.
No finding appears to have been made as to whether the MRT accepted or rejected three statutory declarations provided by persons who claimed that they had carried money to China on behalf of the nominator for the applicant.
The only findings that were specifically made against the applicant (other than the general finding that she was not wholly or substantially reliant upon her son) were:
a)‘The Tribunal considers that where it is submitted that a person has been wholly or substantially reliant on another person for financial support to meet basic needs for food, clothing or shelter, one would reasonably expect a regular pattern of support given the nature of the needs’; and
b)‘While it has been submitted that the review applicant’s other children in China have been unable to assist because of unemployment, there has been no corroboration of this by unemployment cards.’
The MRT appears to have curtailed its task as set out in the regulations by rejecting irregular lump sum support because the guidelines refer to regular payments. There is no basis for the MRT’s considerations to be so restricted. The regularity of support is a fact that may be considered in determining whether support is being provided, but can not be considered determinative of the decision making process. The fact that support comes in lump sums rather than weekly does not, of itself, show that it is not support. In this regard the MRT has misdirected itself and taken irrelevant considerations into account.
Whether the applicant’s other children were able to assist appears to be irrelevant under the regulations. The question that must be answered is whether or not the applicant is ‘wholly or substantially reliant on the [nominator] for financial support’ and whether the reliance ‘is greater than any reliance by the first person on any other person, or source of support’. Even if the applicant had a wealthy daughter it is only relevant if the daughter is providing her with support. There was no evidence of support from other family members, nor that support would be forthcoming from anyone other than the nominator. In this regard the MRT has misdirected itself and taken irrelevant considerations into account.
Conclusions
The MRT simply didn’t make findings of fact about a number of crucial issues relevant to its determinations. The MRT also misdirected itself on two issues. Each of these matters on their own is a proper basis for finding that the MRT fell into jurisdictional error.
I therefore make orders for the issue of a writ of certiorari in order to quash the decision, and remit the matter for a different member of the MRT to determine according to law.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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