conclusion
51 It is common ground, and clear in any event, that the Tribunal erred when it applied the new definition of the term "remaining relative" in determining whether the applicants met the criteria for the visa at the time of application. That new definition had nothing whatever to do with those criteria. The Tribunal ought instead to have applied the prior definition. The Tribunal therefore applied the wrong legal test when considering whether the applicants met the requirements of reg 806.213 (the criteria applicable at the time of application).
52 The Tribunal did not, at any stage, consider whether the applicants satisfied the criteria applicable at the time of decision.
53 In my view, the Tribunal also erred by taking into account irrelevant considerations when determining whether the parents were "usually resident" in Sri Lanka at the time of application. The authorities seem to me to establish that neither the fact that they had lived in that country for many years, nor the fact that they continued to own property there, was capable, without more, of establishing that they were usually resident outside Australia. Indeed, the authorities suggest that these facts are really quite immaterial.
54 In Scargill, the applicant was born in the United Kingdom in 1974. His parents divorced in 1981. Both before the divorce, and since, neither he nor his mother had any contact with his father. In 1993 he and his mother moved to the United States. In 1998 he entered Australia on a visitor's visa. Before that visa expired, he applied for a Family (Residence) (Class AO) visa. An applicant for such a visa had to be a "remaining relative" of, inter alia, a settled Australian permanent resident, usually resident in Australia, who nominated the applicant for the grant of the visa. His mother, with whom he lived in Australia, was a settled Australian permanent resident who nominated him for the grant of the visa. Throughout, he was lawfully in Australia.
55 At the time of the hearing before the Tribunal, he had been in Australia for four years. He had no continuing ties with the United States, and had no intention of returning to that country. It was assumed, but not shown, that his father was alive and in the United Kingdom. The Tribunal found that he was disqualified from being a "remaining relative" because he usually resided in the United Kingdom, the country with which he had the strongest ties, and in which his father presumably resided.
56 The Full Court held that the Tribunal had failed to consider physical residence and intention which were essential elements in the notion of "usually resides". The finding that the appellant usually resided in the United Kingdom was not open. In failing to address the proper meaning of the critical expression, and reaching a conclusion incapable of supporting the finding made, the Tribunal had erred in law. Moreover, it had constructively failed to exercise the jurisdiction vested in it.
57 The Full Court endorsed the reasoning of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 in arriving at this conclusion. The Full Court also endorsed the approach formulated by Williams J in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249 where his Honour observed that an individual's place of residence was determined not by the location of his or her business or property, but by reference to where "he eats and sleeps and has his settled or usual abode". The fact that the appellant was born in the United Kingdom, and lived there until about 1993, were matters of historical tie. However, these facts of themselves said nothing about his current place of abode or his intentions.
58 The Tribunal's reasons for decision cannot readily be reconciled with the approach authoritatively adopted in Scargill. The Tribunal therefore committed two quite separate errors.
59 Counsel for the respondents submitted that notwithstanding the Tribunal's errors, relief should be refused because neither had been "operative" in the sense that it had affected the ultimate decision to reject the applicants' claim to the visa. He submitted that the Tribunal was bound to apply the new definition of "remaining relative" when considering whether the criteria for the grant of the visa were met at the time of decision. He contended that it would have been impossible for the applicants to satisfy that definition as at the date of the Tribunal's decision, and that it would be equally impossible for them to satisfy that definition in the future if this matter were to be remitted. That was because they could not establish that their "usual residence" differed from that of the parents, or that they had not been in "contact" with the parents within a reasonable period before making the application.
60 As previously indicated, counsel for the applicants submitted that the prior definition continues to apply notwithstanding the fact that reg 5(9) expressly renders the new definition applicable at the decision stage. He was virtually forced into that position because he recognised, correctly, that the applicants would find it difficult to satisfy the criteria set out in the new definition. His solution to that dilemma was ingenious. He submitted that reg 5(9), which purported to make the new definition applicable only at the decision stage, was invalid.
61 In substance, he relied upon the two arguments previously identified, the first of which related to s 48(2) of the Acts Interpretation Act. In my view, that argument must fail.
62 Section 48(2) formerly provided that regulations should not be expressed to take effect from a date before the date of notification in the Gazette where, if the regulations so took effect, the rights of a person would be affected in a manner prejudicial to that person, or liabilities would be imposed on any person in respect of anything done or omitted to be done before the date of notification. Where in any regulations any provision was made in contravention of that subsection, that provision would be void and of no effect.
63 In Aberfield, the High Court held that a regulation that prejudicially affected rights existing at the date of its notification did not fall foul of s 48(2) because it was not "expressed to take effect from a date before the date of notification" within the meaning of that subsection as it then stood.
64 In Toowoomba, Latham CJ considered the effect of s 48(2) at 568-569:
"This provision was considered in Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd. where it was held that the section did not avoid a provision in a regulation merely because it affected existing rights prejudicially; a regulation which was not expressed to take effect from a prior date was not affected by the section, even though it deprived a person of existing rights - or, by parity of reasoning, though it imposed new liabilities upon him in respect of past acts or omissions. In that case, it was held that a regulation which terminated a right of appeal as from a particular date took effect only as from that date, and did not take effect at any past date. Nothing can alter the past, but a law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose as at a past date liabilities which did not then exist. In the Aberfield Case, the regulation in question did neither of these things. In the present case, however, the position is different. The decisions are given legislative effect by the regulation 'according to their tenor.' A meaning should be ascribed to the words 'according to their tenor.' In the case of the decision now under consideration, the effect of the regulation is to provide that the decision shall take effect as from 1st July 1943. In my opinion, it should be held that such a provision falls within s. 48 (2) because the words of the regulation express an intention that it shall impose as at a past date liabilities which did not then exist. The effect of the regulation can be ascertained only when the actual terms of the past decisions to which it applies are read into it. When this particular decision is so read in, the regulation is seen to be a regulation which is expressed to take effect from a date (1st July 1943) before the date of notification of the regulation in the Gazette (12th October 1944). Unless it were held that s. 48 avoids such a provision, a regulation could be passed which would give effect to provisions contained in other documents referred to, but not reproduced in, the regulation, and the regulation would be valid even though, if those documents had been repeated in the regulations, the regulation would clearly have been invalid. In my opinion, Statutory Rules 1944 No. 149 does not operate to make the decision valid so as to impose liabilities in respect of anything done or omitted to be done before 12th October 1944 if, apart from that statutory rule, it was invalid (as, in my opinion, it was for reasons already stated).
But this conclusion still leaves the decision in operation as to the period after that date. I read s. 48 (2) of the Acts Interpretation Act (combined with s. 46 (b)) as producing the effect that a provision made in contravention of s. 48 (2) is void only in so far as it is in contravention thereof. Accordingly, the claim of the plaintiff that the decision is bad in toto, as to the future as well as to the past, should not, in my opinion, be upheld. Prima facie, the result would be that the demurrer, in so far as it applies to the decision of the Board, should be allowed, but that the plaintiff should be given liberty to amend so as to allege invalidity of the decision in respect of the period before 12th October 1944." (footnotes omitted)
65 These cases were analysed by C K Comans, in the note referred to above. The author observed that the power of the Commonwealth Parliament to make retrospective or retroactive laws was well-established. He referred to s 48(2), in its then form, observing that s 48 had been enacted in that form in 1937. After setting out the history of the section, he submitted that the view of Latham CJ in Toowoomba was "well established", although there was room for difference of opinion in its application to particular regulations. He concluded that there was much to be said for the view that the subsection, in its then form, applied only where there was a provision in so many words that the regulations were to take effect, operate or commence as from a specified past date.
66 Although section 48(2) in its present form is expressed in terms that differ significantly from those that applied when the subsection was considered in Aberfield and Toowoomba, and analysed by Comans, the general effect of the provision in both forms is the same. It cannot be said of the impugned regulation that, upon its proper construction, it "would take effect before the date of notification". It does not purport to do so. Accordingly, the regulation is valid.
67 The second argument in support of the invalidity of reg 5(9) seems to me to be devoid of merit. There is no reason, in principle, why a transitional provision that is clear in its terms should be rendered invalid merely because it is difficult to reconcile with an earlier provision couched in terms that are difficult to apply once the transitional provisions come into effect. The normal principle of construction is that if there is an inconsistency, between an earlier provision and a later provision, the inconsistency is resolved in favour of the later provision: see generally F Bennion, Statutory Interpretation (3rd edn, 1997) at 685. That principle seems to me to be as applicable to regulations as it is to statutes.
68 However, the applicants contend that even if the new definition is applicable to the criteria at the time of decision, they can satisfy its requirements as regards the "usual residence" limb. They also reject the Minister's contention that they cannot possibly satisfy the requirements of the "contact" limb.
69 In order for the applicants to satisfy the new definition, they would have to satisfy the Tribunal of all of the matters referred to therein. Previously, the regulation included certain disqualifying conditions. If the applicant or the applicant's spouse has an "overseas near relative", the new definition requires him or her to satisfy the Minister that the applicant or the spouse usually reside in a country, not being Australia, that is different to the country in which that "overseas near relative" resides. Previously, an applicant was disqualified if the applicant, or the spouse, usually resided in the same country, not being Australia, as an overseas near relative. In addition, an applicant must establish that neither he or she, nor his or her spouse, has had contact with that relative within a reasonable period before making the application.
70 For the purposes of the new definition, an "overseas near relative" is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.
71 The difficulty that the applicants have to overcome is that they must establish that their usual residence, at the time of making the application, and also at the time of the Tribunal's decision, is different to the usual residence of the parents. The applicants acknowledged that it would be virtually impossible for them to satisfy these requirements when they said, in [46] of their amended consolidated contentions of fact and law, in support of their argument regarding invalidity:
"The use of the word "continues" in clause 806.221(1)(a) means that the intention of the Regulation is that the same criterion should be satisfied in relation to being a remaining relative at the time of application and at the time of decision. An amendment to the definition of the term "remaining relative" in relation to the criteria to be satisfied at the time of decision necessarily affects the definition in relation to the criteria at the time of application. If the transitional provisions amending the definition of remaining relative take effect then the result is that the rights of the applicants at the date of notification of the amendment by Migration Amendment Regulations 2002 (No 5), 12 September 2002, are affected so as to disadvantage them because at the time they applied for the visa they were capable of satisfying the criterion in Regulation 1.15 but as at the date of notification and the purported amendment of Regulation 1.15, they became by that amendment unable to satisfy the criterion."
72 Given the undisputed facts in this case, it is difficult to see how the applicants could have contended otherwise. Both the applicants and the parents arrived in Australia within a relatively short period, and both have the same desire to remain in this country. If the applicants' "usual residence" at the time of the making of their application was Sri Lanka, and the parents were "overseas near relatives", the applicants would have to show that they "usually resided" in a country, not being Australia, that was different to the country in which their overseas near relatives resided. In other words, they would have to establish that they usually resided in Sri Lanka, while the parents usually resided in Australia.
73 While it may be true that the Tribunal approached the question of the parents' usual residence in an incorrect manner, it is difficult to see how it could arrive at the conclusion that the applicants, who arrived in this country before the parents, and had the same desire to remain here as the parents, usually resided in a different country to the parents. That is particularly so when one has regard to the definition of "overseas near relative" in reg 1.15(3) of the new regulations.
74 Equally telling is the difficulty that the applicants would face in establishing that they had not been in contact with the parents within a reasonable period before making the application. The fact that they lived together, at the same address, in the months leading up to the making of that application of itself gives rise to a powerful inference that that there was some "contact" between them during that period. That inference is strengthened by the applicants' own response to the issues raised by the Tribunal in a written submission dated 21 January 2003, in which their solicitor and migration agent stated:
"The applicant further states that his wife's parents are living with them although they are not permanent residents of Australia. They do not have anyone to look after at this old age since his wife is the only child and entirely depend on their support for everything." (emphasis added)
75 In my view, the Tribunal could not reasonably have found, on the material before it, that the applicants "usually resided" in Sri Lanka at the time of the Tribunal's decision, but that the parents did not. Indeed, any contention that such a finding was open flies directly in the face of the applicants' consolidated contentions filed in Court on 12 March 2004 in which they contended at [45]-[46] that the Tribunal had erred in not concluding that they usually resided in Australia. A finding that they did "usually reside" in Australia was said to be the only finding open, when regard was had to both their physical presence, and their intention.
76 I note that throughout counsel's submissions on behalf of the applicants, it was repeatedly conceded that they could not meet the criteria for the visa on the basis of the new definition. They could not satisfy the Minister that they lived in a country, not being Australia, that was different to the country in which the parents usually resided. In fact, on 1 September 2004 counsel said:
"That is a criterion which the applicants in the present case could not meet for this reason, that either the applicants and the second applicant's parents reside in Australia or in Sri Lanka, either of those conclusions, for the sake of the present argument, might be open to the tribunal. But it would appear very likely that they reside in the same country."
77 With regard to the question of "contact", the second applicant gave evidence before the Tribunal that she was the only family that her parents had. They were on bridging visas and had few assets. She said that she was close to her parents and they had lived together for a long time. Her parents could not live by themselves. She and her husband supported her parents.
78 It was submitted on behalf of the respondents that in view of the case the applicants had put to the Tribunal, and their subsequent assertions, they could not now be heard to say that their actual intention was to reside in Sri Lanka. Nor could they be heard to say that they had any intention to live separately from the parents, still less in a different country. Whether or not that is so, as a matter of strictness, need not be determined. The real issue is whether it would be futile to remit this matter to the Tribunal because, as their counsel initially conceded, their claim must fail if the new definition is applicable.
79 In my view, the respondents' submission regarding futility is correct. I cannot conceive of any circumstances in which the applicants would be able to satisfy the requirements of the new definition, whether as to "usual residence", or as to "contact". Their only chance of meeting the requirements for the visa was if the prior definition applied at both stages. For the reasons previously set out, I am satisfied that the prior definition does not apply at the decision stage. Accordingly, although legal errors have been shown, it would be pointless to grant the relief sought. Regrettably, in the proper exercise of discretion, that relief must be refused: see generally Morales at 560-562 and Carlos at 733.
80 Finally, there is the question of costs. The applicants say that even if they are unsuccessful in this application there should be no order as to costs. They claim that this proceeding is in the nature of a "test case". They also say that they were justified in bringing this application because the Tribunal applied the wrong legal definition to their case. If they are unsuccessful, it is only because they cannot now meet the requirements of the new definition. Those requirements did not exist at the time they initially applied for the visa. Had the regulations not been changed, they may have succeeded in their application for that visa.
81 The Minister submits that costs should follow the event.
82 In my view, there should be no order as to costs. The application raised several important questions regarding the interpretation of s 48(2) of the Acts Interpretation Act, and also the construction of reg 1.15 in both its former and present form. In that sense, it was in the nature of a test case: see generally Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 at 386 and Carlos at 374. More importantly, I do not think that it would be just to visit costs upon the applicants in circumstances where the Tribunal fell into legal error, and the applicants had every justification for seeking to have its decision set aside. It is only because, in my opinion, they cannot possibly satisfy the requirements of the new definition, which did not exist at the time they initially sought the visa, that relief has been declined in the exercise of the Court's discretion.