Huynh v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2006-07-31|Before: Besanko JJ, Rares JJ

LANDER AND RARES JJ 1 The question for decision in this appeal from the Federal Magistrates Court is the proper construction of the definition of 'dependent child' in reg 1.03 and 'dependent' in reg 1.05A of the Migration Regulations 1994 ('the Regulations').

Background 2 The mother of each of the appellants, who are aged respectively 29, 26 and 23, was granted a spouse visa together with her youngest son under subclass 309 of the Regulations on 21 December 2003. The mother and her four children are Vietnamese nationals. The mother's husband, also originally a Vietnamese national, was granted Australian citizenship in 1996 and sponsored his wife's and her children's applications for subclass 309 visas. 3 The appellants claimed to be members of the family unit of their mother who was an applicant for a Partner (Provisional) (Class UF) Visa under cl 1220A(3)(d) of Schedule 1 to the Regulations. By cl 1220A(4) of Schedule 1, the provisions of subclass 309 (Spouse (Provisional)) in Schedule 2 was made relevant to that application and by cl 309.311 a criterion which had to be satisfied by each appellant at the time of the decision on his or her application was: '309.311 The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.' 4 The delegate of the first respondent ('the Minister') refused to grant the appellants visas on 31 December 2003. They applied for a review of that decision to the tribunal which on 7 June 2005 affirmed the decision not to grant the visas. On 10 February 2006 the Federal Magistrate dismissed the application for judicial review. 5 Relevantly the Regulations provided at 7 June 2005, being the date of the decision of the Migration Review Tribunal ('the tribunal'): '1.03 Definitions In these Regulations, unless the contrary intention appears: ... dependent has the meaning given by regulation 1.05A. dependent child means the natural or adopted child, or step child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:

(a) has not turned 18; or (b) has turned 18 and: (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions. 1.05A Dependent (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. 1.12 Member of the family unit (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...'

The tribunal reasoning 6 The tribunal considered that the crucial issue was that of dependency in the circumstances where at all relevant times each of the three appellants were over 18 years of age. The tribunal took guidance from a policy of the Minister's department, PAM3, in relation to the construction of the definitions of 'dependent' and 'dependent child'. That policy considered the concept of dependence, including dependant students. One policy factor taken into account was that an adult child who was a full time student completing their first major undergraduate qualification could be considered 'wholly or substantially reliant' even though they may be working part time or receiving a scholarship, provided they are otherwise financially reliant on their parent/s and have been in continuous full time study since completing high school. The tribunal considered that there were no cogent reasons for not applying the policy of the department in this case. 7 The tribunal reasoned that although there was no express wording in Regulations 1.03 and 1.05A which required an applicant who was over the age of 18 to be dependent through lack of choice, such a requirement was implicit. The tribunal said: 'However, the Tribunal considers that a lack of choice can be implied from the wording of Regulation 1.05A as it requires that the applicant is wholly or substantially financially dependent on another person for the basic necessities of life. The cases referred to below and the policy outlined above also indicate that an applicant who is over 18 and who is not incapacitated from working and who is not studying full time for their first undergraduate degree is capable of being wholly or substantially financially independent.' 8 The cases to which the tribunal referred were the decisions in Minister for Immigration and Multicultural Affairs v Pires (1998) 90 FCR 214 ('Pires') (Mansfield J) and Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641 ('Xie') (Weinberg J). Each of those cases was decided on a previous definition, repealed by the current version of the Regulations, of 'dependent' and 'dependent child' in the Regulations. That definition was 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 (b) who: (i) has turned 18; and (ii) is dependent on that person; or (c) who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of disability in subsection 4(1) of the Disability Discrimination Act 1992.' 9 In Pires at 220, Mansfield J held that on the repealed Regulation, the expression 'wholly or substantially dependent' in the definition of dependent child was '… intended to convey that the visa applicant has a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support'. Mansfield J had referred to remarks made by Gibbs J in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 ('Kauri Timber Co (Tas) Pty Ltd v Reeman') at 188 in which his Honour identified that the word 'dependent' in workers' compensation legislation was capable of being given one of two possible meanings. As Gibbs J there explained: 'However, in its relevant sense, the adjective "dependent", as defined in the Oxford English Dictionary, means that the person to whom it is applied "depends or has to rely on something else for support, supply, or what is needed". The word, as this definition shows, is capable of different shades of meaning. It may mean "relying for support", so that it connotes actual reliance, or "having to rely for support", so that it connotes not only reliance in fact but a need to rely for support. The question whether a woman who has property or income of her own but who is in fact entirely supported by her husband can be said to be wholly dependent upon his earnings involves the further question in which of those senses the word is used in the Act.' 10 In this regard the tribunal reasoned: 'Based on the above passages in Pires it appears to the tribunal that in order to be "dependent" a person needs to be found to rely on another person rather than choosing to do so.'

The tribunal then said that the fact that the definitions had been changed from 1 November 1999:

'… did not alter the requirement that the applicants must demonstrate a whole or substantial dependence on the person providing them support, rather, the changes merely confined the concept of dependence to financial dependence for basic necessities of life and required that an applicant's dependence on the person claimed to support them be greater than the applicant's dependence on any other support. Accordingly, the above cases remain relevant to interpreting the meaning of the Regulations and current policy on the meaning of "dependency" and "dependent child".' 11 The tribunal then said: 'Although regulations 1.03 ("dependent child") and 1.05A ("dependent") do not specify that the dependency must be out of necessity and not through choice, the implication of the definitions is that dependence through choice is not generally acceptable. In this regard the Tribunal notes that policy indicates that generally a person over the age of 18 is not considered to be dependent unless they are incapacitated for work or have chosen to study full time for their first undergraduate degree. The Tribunal cannot find any cogent reason for departing from the Department's policy in this case. The evidence indicates that as at May 2004, being 12 months previous to the time of decision (sic), none of the visa applicants were incapacitated for work or had undertaken full time study for an undergraduate graduate degree. Where the person claiming dependence has chosen not ever to work, even though work would be available to him or her in some menial form in order to provide for the necessities of life but that person has perpetuated training or further studies was not, in the Tribunal's view, contemplated by the Regulations. The Tribunal is of the view that the passages in Pires and Xie referred to above, although relating to the pre 1 November 1999 definition of 'dependence', are equally applicable to the current definition of 'dependent' in relation to the issue of financial necessity.' 12 The tribunal then proceeded to apply the cases to which it had referred to the construction of reg 1.05A(1) and the circumstances of the appellants' case in order to find that they were not 'dependent'.

The reasoning in the court below 13 The Federal Magistrate held that there was no basis for concluding that Mansfield J's analysis of dependency as denoting necessity in the context of the appellants' application should be regarded as neither relevant nor appropriate. He said that all matters referred to by Mansfield J leading to the conclusion that dependency must be evaluated in the context of necessity remains sound and applicable notwithstanding the change to the text of the regulations and continued: '32. To hold otherwise would be to encourage the artificial creation of circumstances of dependency by volition. That cannot have been the intention of the Regulations. 33. Properly understood, I think the Tribunal in referring to the Departmental guidelines was indicating that the policy guidelines were consonant with this analysis. True it is that the Tribunal makes specific reference to these guidelines providing that dependency in relation to students can only last for the duration of the first undergraduate degree involving full-time study. There is no reference to such a specific test in the Regulations. However in my view, and against the background of all the Tribunal says, the Tribunal is doing no more than indicating that in the circumstances of this particular case, the Departmental guidelines are an expression, and a correct expression, of a set of circumstances which bear out the need to look to matters indicating that the dependency is real and not constructed. 34. I see no material difference in the use of the word "dependent" and "reliant" in the two versions of the regulations. 35. The material before the Tribunal in my view led inexorably to the conclusion that the circumstances in which the applicants find themselves are circumstances that are of their own making. It would be placing an unwarranted strain on the definition of either "dependency" or "reliance" to find in the circumstances described by the Tribunal that the relationship of the three students to their mother could be characterized as a relationship of dependency. It might be better described as a relationship of assumed or ostensible dependency.'

Submissions 14 The appellants submitted that there was jurisdictional error by the tribunal which the Federal Magistrate failed to find in that the construction of the Regulations based on the construction of the earlier and repealed Regulations was wrong. Although invited by the court to submit that the decision in Pires was wrong, counsel for the appellant eschewed that saying that it was either distinguishable or not applicable by reason of the wording changes. The appellants submitted that the plain words of the present Regulations were what the Tribunal and his Honour needed to construe and they had failed to do so, instead of relying upon an interpretation in the earlier cases of a different piece of delegated legislation since repealed. 15 The appellants also submitted that what had led Mansfield J to come to his conclusion no longer appeared in the structure of the current Regulations. That was because his Honour said in Pires at 220 that in the earlier, repealed, definition of 'dependent child' each of pars (a) and (c) of the definition: '… clearly contemplate a condition or state of affairs giving rise to a need for support. In the case of a child under 18 the measure of the qualification is the existence of the caring and controlling relationship as a matter of fact'. 16 The appellants pointed out that his Honour had continued by reasoning that the terms of the then definition reflected the intention of the drafter to require a child over 18 to have had the need to rely upon a parent or parents rather than simply having chosen, for a time, not to exercise the independence which that person may enjoy. 17 The appellants argued that the structure of the current definitions in Regulations 1.03 and 1.05A was different and that Pires potentially only applied to the construction of reg 1.05A(2). When pressed by the court as to the possibility that that may lead to differing interpretations of the same word, counsel for the appellants submitted that although it was not necessary to say Pires was wrong, it did not now govern the construction of the legislation. 18 The Minister argued that there was no material difference between the form of the Regulations before the amendment and their current form and that therefore the reasoning Pires was correct. However, she put that the case did not stand or fall with Pires. The same result, it was argued, flowed from the terms of reg 1.05A, the context in which that Regulation was found, the policy inherent in the Migration Act 1958 ('the Act') and the Regulations, the reasoning of Mansfield J and the fact that the Regulations were amended to their present form following the earlier decisions. It was noted that reg 1.05A(2) dealt with cases involving humanitarian claims for protection visas. 19 The concept of 'dependent' in reg 1.05A(1) applied, inter alia, to categories of aged relatives (Visa Subclasses 114 and 838) and dependent children (Visa Classes 101, 445 and 802). Without being exhaustive, reg 1.05A(1) also applies as one criterion to assess whether a person is a member of a family unit within the meaning of reg 1.12. 20 The Minister argued that where persons contrived to remain as 'professional students' or otherwise to be dependent on their parent(s), they had no 'necessity' to be reliant on the parent and therefore fell outside the concept embodied in the definitions. The Minister argued that in reg 1.05A(1)(b) it was implicit that there was a need for dependence based on the child's incapacity for work due to the total or partial loss of his or her bodily or mental functions. The Minister argued that consistently with a recognition that such a person was dependent, in cases where need was obvious, the concept of need should be imported into reg 1.05A(1)(a). She said that the use of the words 'basic needs for food, clothing and shelter' in that sub-regulation also gave support to the argument.

Reasoning 21 The starting point for construing the current form of the Regulations must be their words. The process of reasoning adopted by the Tribunal and the Federal Magistrate was fundamentally erroneous in that it sought to construe the current wording by reference to repealed wording which had not been repeated verbatim. It is the text of the legislation or statutory instrument the subject of consideration in each case which requires to be construed according to its terms. As McHugh, Gummow and Heydon JJ said in McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 ('McNamara v Consumer Trader and Tenancy Tribunal') at 661 (Gleeson CJ and Hayne J agreeing): 'It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (see Ogden Industries Pty Ltd v Lucas; [1970] AC 113 at 127, Brennan v Comcare (1994) 50 FCR 555 at 572.' 22 The task of statutory construction was described by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 in the following terms: 'Conflicting statutory provisions should be reconciled so far as is possible The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J). A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume (1905) 2 CLR 405 at 414), per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ). In The Commonwealth v Baume ((1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".' 23 Later in Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 ('ASIC v DB Management') at 338 the court said: '[34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.' 24 Of course, the words 'dependent' and 'reliant' in the definitions here in issue, the latter of which was introduced in the new Regulation, have the ambiguity to which Gibbs J had earlier referred. Thus, the Oxford English Dictionary (2nd Ed) defines 'reliant' as 'having reliance or confidence; confident, trustful'. It goes on to define 'reliance' as, relevantly, 'the act of relying; the condition or character of being reliant; dependence, confidence'. And, the verb 'rely' is there defined as including 'to depend on a person or thing with full trust or confidence; to rest upon with assurance'. 25 In approaching the construction of the current form of Regulations 1.03 and 1.05A is important to bear in mind that, for present purposes, they also deal with the concept of when a child, is a member of a family unit for the purposes of reg 1.12. First, in reg 1.03 a child in subcl (a) is assumed to be a dependent child if he or she has not turned 18, unless there is an actual marriage of that child or the child is engaged to be married. No element of dependence by necessity is imported into the definition with respect to a child under 18. Rather, whether a minor child is dependent is established by the child satisfying the criteria of age and nuptial status in reg 1.03. 26 Likewise, in reg 1.03(b)(ii) of the definition of dependent child, the fact of incapacity for work due to a total or partial loss of the child's bodily or mental functions is taken as creating dependence on the parent, irrespective of whether the child receives government support or has any dependence in fact on the parent for support. Thus, a grandparent or other person could provide fully for the child's needs and yet, by force of the definition of dependent child in reg 1.03(b)(ii), a child who was not, and had no need in fact to be, dependent on the parent, would be treated as being within the definition of 'dependent child' once the criteria of being over 18, having the requisite incapacity and nuptial status were satisfied. 27 It is only in the case of a child who has turned 18 and has to fulfil the requirements of reg 1.05A(1)(a)(i) that the suggested concept of the dependence being by necessity can have operation. That is quite different to the process of construction adopted by Mansfield J, to which we will turn in due course. It suffices, however, to note at this point that in the current structure of the Regulations two of the three categories of definition of 'dependent child' create the requisite dependence without any investigation of the circumstances beyond meeting the objective criteria that a child who is neither married nor engaged, had either not turned 18 or, having turned 18 has the relevant degree of incapacity. The child's actual relationship to the parent in terms of having any need for the parent to support him or her has nothing to do with the child being treated as dependent for the purposes of reg 1.03 subcll (a) and (b)(ii). 28 When one turns to reg 1.05A(1) it is noticeable that it prescribes clear objective criteria to be met for dependence to be established. First, reg 1.05A(1) stipulates that the child (who is the 'first person' for present purposes) must be at the time at which consideration as to his or her position is being given, 'wholly or substantially' reliant on the parent for financial support. Secondly, that degree of reliance is required to have been 'for a substantial period immediately before that time'. Thirdly, the financial support being provided must be to meet the child's basic needs in three respects: viz: food, shelter and clothing. Lastly, the child's reliance on the parent must be greater than his or her reliance on any other person or source of support for financial support to meet those three basic needs. 29 In workers' compensation cases, the construction of the word 'dependent' and its cognate expressions has been treated as requiring the determination of a question of fact for nearly a century: Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531 at pp 536-538 per Lord Haldane; Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; Aafjes v Kearney (1976) 180 CLR 199 ('Aafjes') at 202, 204, 207-208, 210. In Aafjes, Gibbs J said at 207-208: 'In Kauri Timber Co (Tas) Pty Ltd v Reeman ((1973) 128 CLR 177 at pp 188-189), I accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death 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 (Lee v Munro (1928), 21 BWCC 401 at p 408). The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father (cf the cases cited in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR at p 188). But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependant of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father. The conclusion that I have reached -- that a daughter may be wholly dependent upon her father notwithstanding that she in fact receives support from other sources -- is supported by authority, although it is true that the cases in which this was decided are distinguishable on their facts from the present case (see Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531; Lee v Munro, and Cunningham v M'Gregor & Co (1901) 3 F 775).' (emphasis added) 30 Gibbs J recognized, as do we, that the process of statutory construction necessarily requires one to distinguish cases on different statutes, including distinguishing the current class of case from those being considered in the workers' compensation generally. However, the workers' compensation cases are instructive for the purposes of their focus on the question of dependence being a question of fact. Further, the passage we have emphasized from Gibbs J's judgment is analogous to the facts in the present case. 31 When counsel for the Minister was pressed to identify what parts of the legislation imported an implication of it being necessary for the child to rely on the parent for the purposes of qualifying as a 'dependent child' within the meaning of reg 1.03(b)(i), which in turn imported the definition in reg 1.05A, she simply asserted that this was the 'policy' of the Regulations, without identifying any part of the Act or Regulations which supported or identified that 'policy'. 32 The Regulations deal with a variety of situations in which dependence must be established, including family situations in which a child is being sponsored by a parent for a visa to enter Australia or is included in the parent's own application as a member of the parent's family unit (eg. as contemplated by reg 1.12(1)). The definitions of 'dependent' or 'dependent child' set out a number of objective criteria which do not expressly require that the parent or supporting parent actually needed, as opposed to chose, to support the child or other dependent that he or she was in fact supporting. For purposes of explaining our reasoning we refer in this judgment to parents and children rather than expanding the concepts to other categories contemplated by the Regulations in which a person can be a 'dependent'. 33 There is no apparent reason why an implication of the existence of a need, as opposed to an objective state of affairs, that the child be reliant on the parent should be made when the legislation remains silent on the point. The concept with which the relevant Regulations and classes of visa deal are ones which involve the application of the definition of a 'member of a family unit' in reg 1.12(b). If, as a matter of choice, families or parents choose to deploy their resources in providing for their children so that the children remain dependent or reliant on them, even though they are fit to go to work, there does not seem to be any reason in policy discernible in the Act or Regulations why they cannot choose to do so. 34 Moreover, the way in which the Minister argued that dependence or reliance by necessity was distinguishable from that by choice raised more questions than it answered in the context of the otherwise clear criteria which the Regulations provide. The Minister put (in a supplementary submission filed with leave after the hearing) that: '…if reliance is out of choice (irrespective of whether a person is a student or out of work) the visa applicant should not qualify.' (emphasis in original) 35 In our opinion, the variety of circumstances in which a person can be or become dependent or reliant on another is not ordinarily so confined. Moreover, as reg 1.05A(1)(a) recognizes, more than one source of financial support can be available to the 'dependent'. The Minister's construction raises the question whether an unemployed person in an area of high unemployment would be expected to move to another area within the country in which he or she lived where prospects of employment were greater or else be at risk of being said to have 'chosen' to be unemployed. The language of reg 1.05A does not expressly require such stringency. And even this approach involves considering whether the person said to be a 'dependent' is genuine in the claim that he or she is unemployed other than by choice, a situation to which Stephen J gave consideration in Green v Daniels (1977) 51 ALJR 463 at 467-469. There Stephen J held that a departmental policy of waiting until the end of school holidays before granting or refusing unemployment benefit to school leavers was not valid because that question fell to be addressed at the time of the application. Of course, that result flowed from different legislation and circumstances but his Honour's observations are apposite as to deriving a 'policy', such as we were invited to do, from legislation which did not expressly set out such a policy. 36 A child over 18 is usually able bodied and can go into the workforce so as to support himself or herself. The child could choose to go to an educational institution, such as university and be wholly or substantially reliant on his or her parents for financial support to meet the three prescribed basic needs. That situation of choice is a commonplace and would obtain in very many situations in which the question of dependence within the meaning of the Regulations would arise. The choice of pursuit of education is a choice many parents would want their children to have and would support them pursuing. If the word 'reliant' carries with it the implication that the child needs to, as opposed to chooses to, rely on the parent for financial support, it must follow that able bodied children capable of working cannot be found to be 'dependent' within the meaning of the Regulations. That is not a result which receives any textual support in the Regulations. It is a result which seems out of harmony with the intent that a child over 18 can be dependent or reliant in a commonplace situation of him or her pursuing education. 37 It is implicit in the structure of reg 1.05A(1) that the person whose position is being considered as within the meaning of 'dependent' is fit for work unless he or she is incapacitated within the meaning of reg 1.05A(1)(b). Thus, a dependent child to whom the definitions in regs 1.05A(1)(a) and 1.03(a)(i) applies must have the capacity to work. Accordingly, it is implicit in the definitions that the 'dependent' can, if he or she so chooses, work or not. Thus, if one were to construe 'dependent' or 'reliant' as involving not just the fact, of such dependence or reliance, but also the need to so depend or rely, the definition could only apply where the 'dependent' could not work through no fault of his or her own because of lack of opportunity. It is unlikely that the drafter of the Regulations necessarily intended that only unemployed persons from overseas should be brought into this country as 'dependents'. 38 Faced with this reasoning, the Minister argued that whether the child was reliant on the parent was a question of fact, and a choice to study for a first degree could be treated as satisfying the criterion of 'reliant' even though it was a choice. Such a construction makes no sense. Resort to it by the Minister recognizes that strict application of the criterion of necessity would produce outcomes unlikely to have been intended by the Regulation: ASIC v DB Management. 39 The Minister was asked why the criterion of necessity did not apply to exclude from the definition of 'dependent child' a child who chose to be reliant on his or her parents to pursue the first university degree or, if there were a combined course such as a combined law degree or the traditional Bachelor of Medicine, Bachelor of Surgery degrees for medical practitioners. The Minister said that was a question of fact, based on the formation of a value judgment, for the decision maker to determine. We do not agree. In our opinion, the words of the Regulations, on their proper construction do not carry with them any implication of there being a necessity to provide the relevant support by the parent for the child to qualify as 'a dependent child'. The fact that no coherent reasoning process could be enunciated which demonstrated at what point necessity arose, when the Regulations laid out clear criteria as to what the support had to be and the other factors that had to be met before the child over 18 satisfied them, is a further indication against the implication of the child having to have a need for support as opposed to receiving the support in fact. 40 Although it is not strictly necessary for the purposes of deciding this appeal, we consider that the reasoning of Mansfield J in Pires on the construction of the previous form of the Regulations is of no assistance or persuasive force in the determination of this appeal (McNamara v Consumer Trader and Tenancy Tribunal at 661). Weinberg J in Xie at 649 noted that the rigid application of a 'real need' test when determining the question of dependence in the context of an adult child who was a student was capable of producing anomalies. He went on to say at [42]: 'The distinction between a person who is still working towards a first major qualification and a person who considers it necessary or desirable to pursue a further course of studies is, of course, one grounded in policy, and not in logic. There is nothing in the language of reg 1.03 which provides any direct warrant for such a distinction.'

'The true basis of [the tribunal's] decision was that the applicant had made a free and informed choice to remain financially dependent upon his father. That finding of choice led [the tribunal] to conclude that the applicant had failed to demonstrate the necessity implicit in dependence, and led [the tribunal], therefore, to reject his claim.' 41 In our opinion, such a free and informed choice also would occur in deciding to undertake the first degree and must have the same consequence whenever such a choice is made. We see no basis for reading the repealed Regulations any differently to the construction we have adopted for the present Regulations. It is not necessary to consider whether Pires and Xie were wrongly decided (McNamara v Consumer Trader and Tenancy Tribunal), however, we are of the opinion that those decisions should no longer be followed. 42 The Minister argued that if the construction of reg 1.05A(1) did not involve a requirement that the 'dependent' required, rather than chose, to be 'reliant', it would facilitate contrived claims of dependence. However, reg 1.05A(1)(a)(i) requires the child to have been 'reliant' on the parent 'for a substantial period' before the time at which the question of dependence is determined by the decision-maker. Such a criterion is likely to have been set in order to ensure that claims of dependence were genuine, rather than contrived. It also focuses attention on the fact that the child has relied on the parent more than on any other source for the relevant financial support as a matter of objective fact. These factors do not provide any textual support for the Minister's submission and we reject it. 43 By leaving the question of dependence or reliance to be a question of fact untrammeled by the implication of the notion of necessity, the Regulations will be able to be interpreted across the broad range of circumstances to which they relate. In our opinion on their proper construction it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant financial support. 44 For various reasons parents choose to send their children to educational institutions, even when the child does not want to go. A child may be able bodied and able to work, notwithstanding that he or she wishes to pursue an educational opportunity or opportunities. The question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support (Kauri Timber Co (Tas) Pty Ltd v Reeman). 45 For these reasons, the tribunal committed a jurisdictional error in misconstruing the legislation which it was obliged to apply: Craig v South Australia (1995) 184 CLR 163 at 179 and the appeal must be allowed. 46 The orders made by the Federal Magistrates Court on 10 February 2006 must be set aside. In lieu thereof, there should be orders that the decision of the Tribunal affirming the Minister's delegate's decision should be quashed and the matter should be remitted to the Tribunal for further hearing according to law. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander and the Honourable Justice Rares.

Dated: 31 July 2006 IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

BESANKO J 47 I have had the advantage of reading the joint reasons for judgment of Lander and Rares JJ. I agree that the concept of necessity should not be imported into the definition of dependent and dependent child in regs 1.03 and 1.05A of the Migration Regulations 1994 (Cth). However, I do not agree that the previous regulation should be construed in the same way and that the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Pires (1998) 90 FCR 214 ('Pires') and Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641 ('Xie') should no longer be followed. 48 Lander and Rares JJ have set out the terms of the relevant regulation (reg 1.03) as it stood prior to 1 November 1999 and at the time of the decisions in Pires and Xie (see [8]) above, and the terms of the relevant regulations (regs 1.03, 1.05A and 1.12) for the purposes of this appeal (see [5] above). There are a number of significant and relevant differences between the present regulations and the previous regulation: 1 Under the present regulations, a child under 18 years is a dependent child irrespective of whether he or she is wholly or substantially in the daily care and control of a parent. 2 Under the present regulations (and leaving to one side the case of an incapacity for work), the previous definition of dependent no longer applies, other than for the purposes of an application for four types of visas (reg 1.05A(2)) and has been replaced by a definition which has the following important features: (1) it is necessary to establish reliance not only at the relevant time, but also 'for a substantial period immediately before that time'; (2) the word 'reliant' is introduced into the definition of dependent; (3) the form of support has been narrowed from what it was in the earlier regulation, namely, 'financial, psychological or physical support', to 'financial support' alone; (4) the financial support must relate to or be provided to meet a person's 'basic needs for food, clothing and shelter'; (5) the reliance on the other person must be 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. 49 It can be seen that the amendments introduced by the present regulations have provisions which both enlarge and reduce the categories of persons who fall, or might fall, within their terms. 50 In Pires, Mansfield J was of the view that the definition of 'dependent' in reg 1.03 was ambiguous and he resolved that ambiguity by construing the regulation so as to require an applicant to prove that he had 'a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support' (at 220, emphasis added). Mansfield J gave a number of reasons for reaching that conclusion (at 220-221). He concluded that the Tribunal in that case had erred in assessing financial dependence only by reference to the respondent's immediate situation imposed by the restriction upon her working whilst in Australia. In that case, a condition of the respondent's visitor's visa was such that she could not work whilst in Australia, making it inevitable that she would be dependent upon her parents for financial support. 51 Although in Xie Weinberg J said that a rigid application of a 'real need' test when determining dependence in the context of an adult child who is a student is capable of producing various anomalies (at 649 [41]), nevertheless, in reaching his decision he took a similar approach to that taken by Mansfield J in Pires (at 650 [43]). 52 With respect, I am disposed to think that the decisions in Pires and Xie are correct, but, in any event, it is not necessary to pause on that question, because the present regulations are in significantly different terms to the previous regulation. I do not think that there is any ambiguity in the present regulations. I do not think that, under the present regulations, there is a requirement to prove a need to rely in addition to the fact of reliance. A number of matters must be established before reliance in fact for the purpose of the present regulations is made out. Significantly, in terms of the possibility of contrived claims of dependency, the present regulations require the reliance to be at the relevant time and 'for a substantial period immediately before that time'. In addition, the reliance in fact must be for financial support for the first person's basic needs for food, clothing and shelter, and must be greater than reliance on any other person or source of support. These are objective factors and there is no justification for reading into the present regulations an additional requirement that there be a need to rely. This conclusion is supported by a further matter. I think that the reliance referred to in reg 1.05A(1)(a)(ii) is no more than reliance in fact and it would be odd to then read reg 1.05A(1)(a)(i) as referring not only to reliance in fact, but also to a need to rely. 53 In my opinion, the Federal Magistrate and the Tribunal misconstrued the present regulations and the appeal must be allowed. Subject to the other requirements of the present regulations, there is no need to prove more than reliance in fact. I agree with the orders proposed by Lander and Rares JJ. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Solicitor for the Appellants: McDonald Steed McGrath

Solicitor for the Respondents: Australian Government Solicitor

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