Migration (1989) regulations, reg9 "non-dependent child"

Acts Interpretation Act (1901) (Cth) s18A

Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA 116; (1993) 41 FCR 380

Bagus v Minister for Immigration, Local Government and Ethnic

Ah Hin Teoh v Minister of State for Immigration, Local

Government and Ethnic Affairs, 14 April 1994 unreported, Full Court of the Federal Court of Australia

Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641

Ho v Minister of Employment and Immigration (1989) 8 Imm LR (2d) 38

Fiduce v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 503; (1993) 117 ALR 418

Chaudhary v Minister for Immigration and Ethnic Affairs, unreported, 30 March 1994, Full Court of the Federal Court of Australia

Chen Wen Ying v Minister for Immigration and Ethnic Affairs, unreported, 24 June 1994, Davies J

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

Chakera v Immigration Review Tribunal (1993) 42 FCR 525

Secretary, Department of Social Security v Field [1989] FCA 345; (1989) 25 FCR 425

Solicitor for the Applicants: Mr N. Barlow of Barlow and Co

Solicitor for the Respondents: Australian Government Solicitor

THE COURT ORDERS THAT: 1. The appeal be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MOORE J This is an application for judicial review of a decision of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister"). It purports to be brought both under the Administrative Decisions Judicial Review Act 1977 and as an appeal, so styled, under s138 of the Migration Act 1958 ("the Act"). I treat it as an application under s138 only: see Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA 116; (1993) 41 FCR 380 at 381 per Gummow J.

2. Mr Bozidar Jankovic ("the first applicant") applied for a preferential family visa in September 1992. He is a citizen of Yugoslavia and was sponsored by his sister Ms Ljubica Kuga who is an Australian citizen ("the second applicant"). The first applicant was divorced in 1987 and the two children of the marriage live with their mother in Yugoslavia but apart from the applicant. There was material in the Departmental file which indicates that the first applicant visits the children regularly and provides money for their support. The children were aged ten and seven when the visa application was made.

3. The application was refused by a delegate of the Minister in Belgrade in March 1993. A review of that decision by the Migration Internal Review Office led to the decision being affirmed as did a further review by the Immigration Review Tribunal ("the Tribunal"). The original application was not successful because the delegate decided the first applicant did not meet the requirements of reg9 of the Migration Regulations 1989. A similar view was taken in the internal review and by the Tribunal.

4. Section 24 of the Act requires the Minister to grant a visa if the applicant is, under the regulations, entitled to be granted a visa. Section 24 contains qualifications and exceptions that are not presently relevant.

5. The regulations made under the Act which operated at the time the application for the visa was made were the Migration Regulations 1989 ("1989 Regulations") though those regulations 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 a 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). References to regulations are to the 1989 Regulations.

6. Regulation 34A provides that an applicant for a visa must satisfy the prescribed criteria and reg41, read in conjunction with Sch2, prescribes and identifies the relevant criteria. In relation to a preferential family visa, it is necessary for an applicant to be, for present purposes, a remaining relative. What is a remaining relative is ascertained by reference to reg9 which provides:

"(1) An applicant for a visa or entry permit is a

remaining relative for the purposes of these

Regulations if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) a step-relative, within 1 of those

degrees of relationship;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; 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) the applicant and the spouse (if any) of the

applicant together have more than 3 overseas

near relatives; or

(c) the applicant is a child who:

(i) has not turned 18;

(ii) has been adopted by an Australian

citizen or an Australian permanent

resident (in this paragraph called "the

adoptive parent") while overseas;

but, at the time of the application, the

adoptive parent has not been residing

overseas for a period of at least 12 months.

(3) In this regulation, "overseas near relative"

means a person who is:

(a) a parent, brother, sister or non-dependent

child; or

(b) a step-relative, within 1 of those degrees of

relationship;

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

applicant but is not a relative of a kind referred to

in subregulation (1)."

7. Regulations 34A, 41, Sch2 and reg9 facilitate the entry into Australia of a person who has a near family member in Australia who is an Australian citizen or permanent resident ("the sponsor"). The applicant must be a sibling or child of the sponsor or a step-relative of the same character. However these provisions have no application if, in certain circumstances, the applicant has a similar near family member residing out of Australia who is referred to in the regulations as an "overseas near relative". That expression is defined in reg9(3) and reg9(3)(a) relevantly defines an overseas near relative as a non-dependent child.

8. The disqualifying circumstances are found in reg9(2). They are that the applicant for the visa (or his/her spouse) and a member of the near family lives in the same country (reg9(2)(a)(i)), have regular contact (reg9(2)(a)(ii)): see Bagus v Minister for Immigration, Local Government and Ethnic Affairs 31 May 1994, unreported Federal Court, Whitlam J, or there are three or more of them outside Australia (reg9(2)(b)). An "overseas near relative" is one that lives outside Australia because the definition of that expression indicates that it does not include a relative of the type referred to in reg9(1) and a characteristic of such a relative is that they are usually resident in Australia (reg9(1)(c)).

9. Regulation 2 contains definitions of general application and does not define "non-dependent child". However "dependent" and "dependent child" are defined in the following terms:

""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 is a spouse or

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

(aa) who:

(i) has turned 18; and

(ii) is dependent on that person; or

(b) who is wholly or substantially incapacitated

for work because of a physical or mental

impairment."

10. I should also refer to reg7 which contains a lengthy definition of what a member of a family unit means in the regulations in relation to an application for a visa or entry permit. It is defined as including any dependent children of an applicant. Regulation 108 relevantly deals with the relationship between an application for a visa by a person who is described in the regulation as the "principal person" (that term itself is defined in the regulation) and an application for a visa by a person who is part of the family unit of the principal person. The regulation has the effect of entitling the member of the family unit of a principal person to a visa if the principal person satisfies or has satisfied the specified criteria in their application for a visa. While there are qualifications and exceptions to this general statement of the effect of reg108, they are not material.

The Tribunal's decision and the alleged errors of law

11. While the respondent in these proceedings is the Minister, the purpose of the application is to seek a review of the decision of the Tribunal.

12. In its decision of 6 January 1994 the Tribunal considered the meaning of the expression "non-dependent child" in reg9 and concluded at p8 of its decision:

"The harmonious interpretation of the Regulations thus

requires that the expression "non-dependent child" be

read as the antithesis of the defined term "dependent

child"."

13. Each of the children of the applicant was not a "dependent child" in the Tribunal's view and accordingly each was a "non-dependent child" and thus an "overseas near relative". As they lived in the same country as the first applicant, he is not, having regard to reg9(2), a remaining relative of the second applicant.

14. The principal submission of the applicants is that this construction of the expression, "non-dependent child" gave it an artificially narrow meaning which is at odds with its ordinary meaning. The respondent submits the meaning adopted by the Tribunal was correct. The applicants make a further submission that even if the construction adopted by the Tribunal was correct, the Tribunal should have decided on the material before it that each child was not a "non-dependent child" within that narrower meaning.

15. I have already discussed the way reg9 operates in conjunction with regs34A, 41 and Sch2. The obvious purpose of this scheme is to permit people to enter and reside in Australia when the only near family they have is in Australia. If there is near family both within Australia and elsewhere the justification for permitting permanent entry to Australia is not seen as sufficiently strong to warrant the grant of a visa on this ground. It is unnecessary to consider that part of reg9 concerning adopted children: see reg9(2)(c).

16. The nature of the relationship between the applicant and the near family residing out of Australia which enlivens reg9(2), and thus disqualifies the applicant, is, with one exception, the same as that that must exist between the applicant and the sponsor to bring the applicant within the scope of reg9 at all. The exception is that the near family residing out of Australia might include, in addition, non-dependent children of the applicant.

17. The respondent submits that the key to determining the meaning of the expression "non-dependent child" in the definition of "overseas near relative" in reg9(3), is understanding why the definition did not simply refer to a child of the applicant whatever its status. The class identified in reg9(3) as constituting "overseas near relative(s)" are those with whom the applicant might be expected to have a close familial bond. It might be thought that a parent who is an applicant would have as close a familial bond with a child as the others in the class in reg9(3) whether the child was dependent or not. However the respondent submits that there is a clear reason why children of a particular type only are referred to in reg9(3), namely non-dependent children. It is because dependent children of an applicant are able, in the manner provided for in reg108, to attach themselves to the application of the parent and could be expected to accompany the applicant to Australia in the event that the application is successful though the regulations do provide that dependent children might be sponsored later: see reg45. As to the preservation of the integrity of a family unit and the rights of children more generally in the context of Australian immigration law: see Ah Hin Teoh v Minister of State for Immigration, Local Government and Ethnic Affairs, 14 April 1994 unreported, Full Court of the Federal Court.

18. Thus, it is submitted, the inclusion in the definition of "overseas near relative" of the expression "non-dependent child" is intended to exclude from the class of near relatives, children to whom reg108 applies. That regulation applies relevantly only to a "dependent child". In the result, the expression "non-dependent child" is intended to comprehend any child of an applicant who is not a "dependent child". The expressions are intended to be complementary and whether a child is a "non-dependent child" is determined by ascertaining whether they fall within the definition of "dependent child". If they do not they are a "non-dependent child".

19. Both the Tribunal and the respondent supported their construction of the expression "non-dependent child" by reference to s18A of the Acts Interpretation Act 1901 ("Interpretation Act") which provides:

"In any Act, unless the contrary intention appears,

where a word or phrase is given a particular meaning,

other parts of speech and grammatical forms of that

word or phrase have corresponding meanings."

20. Two questions immediately arise. Firstly whether the expression "non-dependent child" is another part of speech or grammatical form of the expression "dependent child" and, if so and secondly, whether reg9 and the regulations disclose a contrary intention such that s18A does not apply. Both expressions are nouns qualified by adjectives and are plainly not different parts of speech of the same word. However the respondent submits one is another grammatical form of the other in that the former is the negative of the latter.

21. It would appear s18A and similar statutory provisions in the State equivalents of the Interpretation Act have received limited consideration, at least in reported cases. Two ways of applying such provisions are discussed by DC Pearce and RS Geddes in Statutory Interpretation in Australia 3rd Edition, 1988 and the learned authors express a preference for the generous approach of Menzies J in Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 emerging from the following passage at 645:

"Furthermore, however, s.32 of the Acts Interpretation

Acts provides that derivatives of any term to which a

meaning is assigned by an Act shall have a

corresponding meaning. Surely the object of this

provision is to ensure consistency and I would be

loathe to attribute different meanings to derivatives

from one root - even if only one of the derivatives is

actually defined. The process of word formation to

which s32 refers is not, I think, inevitably confined

to resort to the original root. My reluctance would be

the greater when, as here, the defined meaning is

itself one that is not in disconformity with common

usage."

His Honour was discussing s32 of the Acts Interpretation Acts 1954 to 1962(Q) which is in terms different to s18A. A less generous approach was adopted by Stephen J: see Redland supra at 665. However, in my opinion, "non-dependent child" is not another grammatical form of "dependent child". The negative of one word or phrase is not a different grammatical form of that word or phrase. Section 18A is directed to the differing forms words or phrases might take in legislation when one form is defined. In those circumstances the substantive meaning of all the words or phrases can be treated as the same. Support for this approach to s18A is found in Re Australian Meat Industry Employees' Union and R.J. Gilbertson (Queensland) Pty Ltd unreported, 8 December 1988, Federal Court, Gray J. In my opinion s18A has no application to the present case.

22. The submissions of the applicant on the meaning of the expression "non-dependent child" are detailed and refer to numerous authorities dealing with principles of statutory construction. The submissions are, in this respect, a helpful collection of authorities dealing with the manner in which the meaning of statutory provisions might be determined. The principle submission of the applicant is that the expression "non-dependent child" in reg9(3) should be given its ordinary meaning and that the definition in reg2 of "dependent child" is an artificially narrow or limited one at least as it concerns a child aged less than 18 years. That limited meaning should not be imported into the relevant words in reg9(3).

23. The applicants submit that a beneficial construction should be given to the regulation consistent with the purpose of the Act and the following observations of the Federal Court of Canada in Ho v Minister of Employment and Immigration (1989) 8 Imm LR (2d) 38 at 40 are advanced by the applicant as an apt description of the purpose of the Act though they are obviously a direct reference to Canadian legislation:

"It is important to bear in mind that Parliament's

intention in enacting the Immigration Act is to define

Canada's immigration policy both to Canadians and to

those who wish to come here from abroad. Such a policy

cannot exist without complex regulations, a good many

of which appear to be restrictive in nature, but the

policy should always be interpreted in positive terms.

The purpose of the statute is to permit immigration,

not prevent it, and it is the corresponding obligation

of immigration officers to provide a thorough and fair

assessment in compliance with the terms and the spirit

of the legislation."

24. For my part I would not approach the Act and the Migration Regulations as a whole on that footing if the applicants are suggesting that the purpose of the Act as a whole is to permit immigration in some positive sense that favours an immigrant. The Act is directed equally to limiting as well as facilitating permanent entry into Australia. It is clear that the construction of some provisions of the Act or regulations might appropriately be approached on the basis that they are intended to facilitate entry into Australia particularly having regard to Australia's international legal obligations. An example are those that concern entry on compassionate grounds. This can be illustrated by the comments of Burchett J in Fiduce v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 117 ALR 418 at 430:

"Indeed, such cases are probably at the heart of the

benevolent intent of the regulation which, on ordinary

principles, as I have already indicated, should be

given a broad and generous construction in favour of

the Australian citizens and residents that it was

intended to benefit, and in furtherance of the good

name of Australia that its humanity maintains."

See also Chaudhary v Minister for Immigration and Ethnic Affairs unreported, 30 March 1994, Full Court of the Federal Court of Australia, Chen Wen Ying v Minister for Immigration and Ethnic Affairs, unreported, 24 June 1994, Davies J.

25. The meaning of reg9 must be seen in the context of the regulations as a whole and the subject matter of reg9 does not suggest it should be construed benevolently or generously. While its purpose is, as part of a scheme, to permit entry into Australia of people with a close familial bond with an Australian citizen or resident it is also framed so as to deny entry if a similar close familial bond exists in relation to relatives outside Australia. To that extent it is intended to create a balance. The determination of that balance was a matter for the framers of the regulation even if, in some situations, it might be thought to operate unfairly or anomalously. I see no basis for construing the regulation so as to skew the balance in favour of an applicant who is outside the class the regulation is reasonably clearly intended to benefit. In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ said:

"The fundamental object of statutory construction in

every case is to ascertain the legislative intention by

reference to the language of the instrument viewed as a

whole. But in performing that task the courts look to

the operation of the statute according to its terms and

to legitimate aids to construction."

26. I accept that the definition of dependent child in reg2, as it concerns a child under the age of 18, might be viewed as a narrow one. The limited nature of that definition is apparent from the way the definition of "dependent" applies to a child 18 years or older. If one proceeds on the basis that the ordinary meaning of "dependent" comprehends dependency of a variety of types including physical, psychological or financial dependency, then that is reflected in the definition of "dependent" in reg2. Yet the breath of that notion of dependency is not imported into the definition of "dependent child" when the child is under 18. Dependency is based on daily care and control which is a more limited and narrower concept and does not, for example, provide for financial dependency when there is no daily care and control (as to the statutory definition of "dependent": see Chakera v Immigration Review Tribunal (1993) 42 FCR 525 per Heerey J). I should here add that the terms of the definition of "dependent child" in relation to a child aged less than 18 years are materially different to the provision of the Social Security Act 1947 (Cth) considered by a Full Court of the Federal Court in Secretary, Department of Social Security v Field [1989] FCA 345; (1989) 25 FCR 425 which is relied upon by the applicants.

27. The difficulty the applicants ultimately confront is that the entire expression "non-dependent child" has no obvious ordinary meaning. While I accept that the expression "dependent child" is in common usage and might be treated as having an ordinary meaning wider than its defined meaning in relation to a child aged less than 18 years, the composite expression "non-dependent child" is one, as far as I am aware, which is not in common usage. In particular, the word "non-dependent" is not in common usage. In Bennion, Statutory Interpretation, 1992, 2nd edition, the learned author says at 840:

"Occasionally the legislator may use a term which

appears to be a newly coined or slang word. Here the

interpreter must not be put off by its unorthodox

nature, but must give it what appears to be the

intended meaning."

"Coinages are often made for the purposes of a

particular statutory scheme."

The expression "non-dependent child" appears in regulations where, in context, it can be given a sensible meaning that accords with what appears to be the purpose of reg9. In expressing this view I am accepting, without repeating, the submissions of the respondent as to why the framers of the regulation chose to include, in relation to children, only "non-dependent child" in the disqualify class in reg9(3) which defines "overseas near relative".

28. In my opinion the Tribunal adopted the correct construction of "non-dependent child" and accordingly did not, in this respect, err in law.

29. The applicants also submit that in applying that construction to the facts of this case the Tribunal erred in that it should have concluded that each of the children of the applicant was a "dependent child". The applicants do not identify with any precision how this raises a question of law: see s138(1) of the Act but it is, in any event, a submission I do not accept.

30. It was open to the Tribunal on the evidence concerning the care provided by the first applicant to conclude that the children were not wholly or substantially in his daily care which is a finding it appears to have made at page 5 of its decision. Unless they are in the daily care of the first applicant each of the children is not "a dependent child" as defined in reg2 and each would therefore be a "non-dependent child". The submissions of the applicants put in issue whether the first applicant was in control of the children which raised the question of whether "daily" qualifies "control" in the expression "daily care and control" and what is comprehended by the word "control". However it is unnecessary for me to determine whether the word "daily" qualifies "control" and consider the meaning of that latter word and undesirable to do so given the very limited submissions made on these questions. It is unnecessary because unless daily care is demonstrated the status of the children is established for present purposes. Even if they were under the control of the first applicant, that would not be material to the decision the subject of these proceedings for if they are not wholly or substantially in the daily care of the first appellant neither would be a "dependent child".

31. I dismiss the appeal. However the question raised in the appeal concerning the meaning of the expression of "non-dependent child" in reg9 has not, as far as I am aware, been considered by the Court and, to this extent, the appeal has a public interest element. Accordingly I propose to make no order as to costs; see Hunt supra at 386.