Carlos v Minister for Immigration and Multicultural Affairs

THE COURT: 1 We have had the benefit of receiving, and considering in advance of the hearing, comprehensive written submissions made on behalf of the appellants. Those submissions have been further developed in oral argument. In consequence of this, we are in a position to give judgment without further delay. 2 The facts of the matter are comprehensively stated in the judgment of Merkel J. There is no need for us to repeat that account. We can go immediately to the issues raised by the appellants.

The substantive point 3 It seems to us there is no merit in the appellants' argument that the Migration Review Tribunal fell into jurisdictional error, as discussed in Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1. The Tribunal did not identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material. 4 The critical issue before the Tribunal was one of fact: whether Margaux Carlos, the first appellant, then satisfied cl 833.221 of Schedule 2 of the Migration Regulations. That clause read: "The applicant is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia." 5 The concept of membership of a family unit is explained by reg 1.12 which relevantly reads: "(1) … a person is a member of the family unit of another person (in this subregulation called the family head) if the person is: (a) a spouse of the family head; or (b) a dependent child of the family head or of a spouse of the family head; or (c) a dependent child of a dependent child of the family head or of a spouse of the family head; or (d) a relative of the family head or of a spouse of the family head who: (i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head; or (e) a relative of the family head or of a spouse of the family head who: (i) has never married or is widowed, divorced or separated; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head." 6 It will be seen this definition contemplates a variety of circumstances in which a person may be a member of the family unit of another person. Obviously the concept of "family unit" is fluid. It will always be a question of fact, and sometimes of degree, whether a person falls within reg 1.12. 7 The Tribunal found Margaux was born on 13 January 1982 and arrived in Australia, aged 8 years, on 6 April 1990. She was accompanied by her mother, Myrna Carlos, the third appellant, and younger sister, Bianca, the fourth appellant. Her father, Rogelio Carlos, the second appellant, was already in Australia, having arrived in 1987. Since the reunion of the family in Australia, another child, Paolo, the fifth appellant, has been born. 8 At para 20 of its reasons for decision, the Tribunal set out the following findings of fact: "The Tribunal accepts that the primary visa applicant and her siblings are the natural children of their parents and that their parents are each other's spouse. The Tribunal accepts also that the children of the family, including the primary visa applicant, usually reside in the family home and have been (and remain) wholly or substantially reliant upon their parents for financial support. As the primary visa applicant's sister and brother have not turned 18, the Tribunal finds that each satisfies the definition of a dependent child. The Tribunal finds that the primary visa applicant is also a dependent child as, being over 18 years of age, she is, and has been for a substantial period, wholly or substantially reliant on her parents for financial support to meet her basic needs for food, shelter and clothing, and her reliance on her parents in that regard is greater than her reliance on any other person or source of support. Consequently the Tribunal finds that the primary visa applicant, her siblings and her parents are members of the family unit and that her parents, or either of them, is the family head." 9 There was a question before the Tribunal as to the composition of the "family unit" with which Margaux entered Australia. A migration agent acting for the visa applicants contended the family unit comprised only Margaux, her mother and Bianca, and that this was not the same family unit as that with which she now resides, owing to the addition to the original family unit of her father and brother. Apparently the argument was that the family unit with which Margaux entered Australia was headed by the mother, whereas the family unit with whom she now resided was headed by the father. Although both the father and mother gave evidence to the Tribunal, and they were assisted by a legally-qualified migration agent, it was not suggested to the Tribunal that there had been a breakdown in the marriage between 1987 and 1990, or indeed any difficulty in the marriage at all. The only suggestion (which was true) was that husband and wife were geographically separated during this time. 10 The Tribunal thought the argument put by the migration agent overlooked the fact that more than one member of a family unit may be the head, for the purposes of reg 1.2 of the Migration Regulations. The Tribunal said: "23. …For example, either a mother or a father may be considered to be the family head. Thus the fact that the primary visa applicant did not arrive in Australia with her father, but arrived subsequently with her mother, does not mean that the primary visa applicant is not a member of her father's family unit. This is so whether her father or mother is regarded as the family head. 24. The agent's argument also overlooks the fact that the members of family unit can be geographically separated. There is no requirement in regulation 1.12 that members of a family unit be co-located. Thus, when the primary visa applicant, her mother and sister were in the Philippines and her father was in Australia, as well as when all family members were in Australia, there has only been one family unit at all material times. The family unit did not change simply because its members were reunited. 25. The Tribunal notes that this interpretation is consistent with the policy that underpins subclass 833, in that it is a concession to certain unlawful non-citizens who became unlawful as minors (through no 'illegality' on their own part but rather on the part of their parents or guardians) to enable them to regularise their migration status once they are adults, independent from their parents or guardians, through whom they acquired their illegal status. It would be inconsistent with this policy objective to grant a visa to an applicant who is still dependent on persons who have become illegal. In order to cease being a member of her family unit, the primary visa applicant must cease being dependent on the family head(s). She must also cease residing with the family unit in order to satisfy clause 833.221." 11 At the hearing before Merkel J, it was argued the Tribunal erred in proceeding on the basis that the separation between Margaux's parents, between 1987 and 1990, was merely geographic. An attempt was made to adduce evidence of a breakdown in the marriage, of what was called an "emotional", as well as geographic, separation. A question was raised as to whether each of the parents was the "spouse" of the other, within the definition of that term in reg 1.15A of the Regulations. Argument on that question was taken much further in the submissions made to us. 12 Merkel J thought there was no error of law in the Tribunal's conclusion that, at the time of its decision, Margaux was a member of, and resided with, the family unit with which she entered Australia. His Honour said, at paras 47 to 49 of his reasons: " The use of the concept of a 'family unit' in cl 833.221 and the definition of membership of a family unit in reg 1.12(1) is an endeavour to deal with the difficulty in defining a family for the purposes of subclass 833. Depending on context, a family can include parents and their children, whether dwelling together or not; any group of person closely related by blood; or those persons descended from a common progenitor. Although the drafting of cl 833.221 confines the categories of persons who are capable of being members of a family unit, a decision maker is nonetheless required to determine the relevant family unit for the purpose of the subclass on the facts of a particular case. The construction of subclass 833 should seek to give effect to, rather than frustrate, the purpose for which the subclass concession was created: see generally Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 394-397. The concession was created to enable the regularisation of the migration status of minors who became unlawful non-citizens, have since become adults, and now live independently of the family group with whom they came to Australia. In that context the relevant family unit is the family group, in a sociological sense, to which the applicant belonged and with whom the applicant first entered Australia. The sociological family group to which Margaux belonged and with which she first entered Australia was the group that included her mother, herself and her sister. At the time of the MRT hearing Margaux was a member of the same family group as she was still residing with her mother and her sister. It therefore could not be said that she was no longer a member of, and does not reside with, the family group or unit with which she first entered Australia. Even if Margaux's biological father had separated from her mother, it does not follow that Margaux's family group would exclude her father. In any event, the fact that Margaux also resided with her father and her brother (who was subsequently born into the family) did not have the effect of altering the characterisation of the family group with which Margaux first entered Australia. Thus, the MRT was correct in concluding that Margaux remained a member of and resided with the family with which she first entered Australia." 13 We agree with these observations. 14 Upon the facts found by the Tribunal, it is impossible to conclude otherwise than that, at the time of the Tribunal's decision, Margaux continued to be a member of, and reside with, the family unit with which she entered Australia. 15 It seems to us beyond question that persons may be members of one family unit despite a geographic separation. Accordingly, if (as the Tribunal found) the relevant family unit comprised the father, as well as the mother, Margaux and Bianca, between 1987 and 1990, the position at the time of the Tribunal decision was that Margaux continued to be a member of, and reside with, the same family unit; the only difference being the addition to it of Paolo. 16 Moreover, on this scenario, it matters not whether the father or the mother is seen as the family head. Regulation 1.12 says that a person is a member of the family unit of another person (the family head) if (inter alia) the first person is "a dependent child of the family head or of a spouse of the family head". If a spousal relationship existed between Margaux's parents at the time she came to Australia, and if she was dependent on either of them, then she was dependent on either the family head or the spouse of the family head. The same comment may be made about the situation that obtained at the time of the Tribunal's decision. 17 If one takes the view, contrary to that of the Tribunal, that the relevant "family unit", at the time Margaux entered Australia, comprised only herself, Bianca and her mother - not her father - it is clear, on the Tribunal's findings, that she continued at the time of the Tribunal's decision to be a member of, and reside with, that family unit; with the addition to it of her father, as well as Paolo. Moreover, if she was dependent on either of her parents, she was dependent on either the family head or the spouse of the family head. 18 Inherent in the appellants' argument is the proposition that a different "family unit", within the meaning of reg 1.12, comes into existence whenever there is an addition to the membership of the family unit. We see no warrant for that approach. It is contrary to ordinary concepts; the Jones family next door remains the Jones family despite the birth of a new baby. And, as Merkel J pointed out, it would tend to frustrate, rather than facilitate, the policy underlying clause 833.221. 19 In our opinion it was not necessary for the Tribunal to undertake an inquiry into the relationship between Margaux's parents at the date she entered Australia. This was not raised as an issue for determination. There was no suggestion otherwise than that the marital relationship persisted throughout the period of geographic separation. The evidence sought to be adduced before Merkel J does not go far enough to establish the contrary. In any event, it seems to us that, upon any view of that matter, it is clear Margaux could not satisfy the critical requirement of clause 833.221 of the Regulations. The Tribunal fell into no error of law or jurisdictional error.