Migration Act 1958 (Cth), ss.338, 476

Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12

Migration Regulations 1994 (Cth), regs_._1.03, 1.09A, 1.15, Schedule 1, cl.1128BA(3)(l), Schedule 5A, Item 5A205, Schedule 6A, Items 6A91, 6402

Acts Interpretation Act 1901 (Cth), s.15AB

Family Law Act 1975 (Cth), s.4

Military Rehabilitation and Compensation Act 2004 (Cth), s.15

Veterans' Entitlements Act 1986 (Cth), s.3

Seafarers Rehabilitation and Compensation Act 1992 (Cth), s.3

Privacy Act 1988 (Cth), Schedule 3

Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.

Collector of Customs v Pozzolanic Enterprisers Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1

Industry Research & Development Board v Bridgestone Australia Ltd [2001] FCA 954; (2001) 109 FCR 564

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456

Saraswati v R [1991] HCA 21; (1991) 172 CLR 1

R v Miller [2001] NSWCCA 209

Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10

Macquarie Concise Dictionary, Fourth Edition, Pan MacMillan Publishers, Australia, 2006

Macquarie Dictionary, Revised Third Edition, Pan MacMillan Publishers, Australia, 2001

Macquarie Online, http://www.macquarieonline.com.au/

Oxford English Dictionary, Second Edition, Clarendon Press, Oxford, 1989

Pearce, DC, and Geddes, RS, Statutory Interpretation in Australia (6th Edition), LexisNexis Butterworths, Sydney, 2006

(1)

The name of the first respondent be amended to read 'Minister for Immigration and Citizenship'.

(2)

The application filed on 26 October 2006 is dismissed.

(3)

The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 26 October 2006 for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal decision was made on 5 October 2006 and a letter notifying the applicant's authorised recipient was issued on 13 October 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 12 September 2005, refusing to grant the Ms Cheryl Lumba, the visa applicant and the applicant's daughter, an Other Family (Migrant) (Class BO) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Rules"), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.

A Court Book ("CB") prepared by the first respondent's solicitors was filed and served on 15 December 2006. I have marked it Exhibit "A" and it was read into evidence.

A second affidavit of Martin Pooley, solicitor, affirmed on 29 January 2007, was filed in the proceedings (second affidavit of Mr Pooley). Attached to this affidavit is a copy of the transcript of the Tribunal hearing held on 30 August 2006. No objection was raised to the contents of the affidavit and it was accepted into evidence.

The Tribunal decision of T Delofski, reference N05/06335, provides the following background information:

The visa applicant applied to the Department of Immigration and Multicultural Affairs for a Other Family (Migrant) (Class BO) visa on 15 September 2004. The delegate decided to refuse to grant the visa on 12 September 2005 and notified the visa applicant of the decision and her review rights by letter dated 20 September 2005.

The delegate refused the visa application as the visa applicant did not satisfy cl.115.211 of Schedule 2 to the Migration Regulations 1444 (the Regulations). The delegate found that the visa applicant did not satisfy cl.115.211 because the delegate was not satisfied that the visa applicant was a remaining relative of the review applicant (the visa applicant's mother).

The review applicant applied to the Tribunal on 8 December 2005 for review of the delegate's decision. The Tribunal finds that the delegates decision is an MRT-reviewable decision under s.338(5) of the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.(CB 113)

A convenient summary of the visa application history up to the review application to this Court is contained in the written submissions of the first respondent prepared by Mr Lloyd. I adopt those submissions for the purposes of this judgment:

2. On 15 September 2004, Ms Cheryl Lumba lodged an application for a Class BO visa. (CB 1.4)

3. Ms Lumba is a citizen of the Philippines. (CB 2)

4. The application asked the applicant to specify "Your brothers and sisters (including full, half, step and adopted. (CB 6)

5. The applicant was sponsored by her mother, the present applicant, Ms Celia Mercado. (CB 19)

6. On 20 September 2005, a delegate of the Minister refused the visa application. (CB72-75). The delegate found that Ms Lumba currently resided in the same country as her half-brother, Ace James Lumba. As a result of reg 1.15

(c)(i), the visa applicant did not meet the definition of remaining relative. (provisions of the regulation omitted)

7. On 8 December 2005, the present applicant applied for a review of the delegate's decision (CB 79-85). The thrust of the review application was that there was doubt about the paternity of Ace Lumba and the review and visa applicants did not know that Ace Lumba was the visa applicant's half-brother when the visa application had been lodged (CB 76-78).

8. The review applicant was invited to appear before the Tribunal. (CB 94,95,99-100)

9. By letter dated 30 August 2006, the review applicant was invited to provide information by way of the results of the DNA testing of Ms Lumba and Mr Lumba. (CB 104-105)

10. The applicant declined the offer to provide the DNA testing results (or to arrange that testing at all). Rather, the applicant contended that the existence of a half-brother did not result in Ms Lumba falling outside the definition of "remaining relative" because that expression as defined, and in particular the definition of "overseas near relative" did not refer to half-brothers.

11. The Tribunal handed down its decision on 13 October 2006, affirming the decision under review. (CB 112-116). The Tribunal was satisfied that the visa applicant and Mr Lumba were half-siblings, sharing the same father. (CB 116.2). The Tribunal referred to the Macquarie Dictionary definition of "brother" and noted that it include "a male child of only one of one's parents (half-brother)". It accepted and applied this definition of "brother". (CB 116.4). As a consequence, the visa applicant fell outside the definition of "remaining relative".

Application for Review of the Tribunal's Decision

On 26 October 2006 the applicant filed an application for a review in this Court under s.39B of the Judiciary Act setting out the following ground:

The Second Respondent erred in finding that the Applicant's daughter, whom the Applicant had sponsored to apply for a subclass 115 (Remaining Relative) visa, did not meet the requirements for that visa.

Particulars

1. The Second Respondent erroneously found that the Applicant's daughter had an "overseas near relative" residing in the same country as she resided, as a result of which the Applicant's daughter was not a "remaining relative" within the meaning of regulation 1.15 of the Migration Regulations_._

2. The Second Respondent misconstrued regulation 1.15 by finding that a person found to be a half-brother of the Applicant's daughter was an "overseas near relative" of the Applicant's daughter.

3. Had the Second Respondent correctly applied the definition of "overseas near relative" in regulation 1.15(2) it would have found that a half-brother of the Applicant's daughter could not be an "overseas near relative" of the Applicant's daughter.

Mr Poynder, for the applicant, submits in his written submissions that the applicant, an Australian citizen, sought to sponsor her 26 year old daughter, Ms Cheryl Lumba, a citizen of the Philippines, to migrate to Australia on a Remaining Relative (Subclass 115) visa. In order to satisfy the requirements for that visa, Ms Lumba had to satisfy the Tribunal that she was a "remaining relative" of the applicant. The definition of "remaining relative" in reg.1.15 of the Regulations at the relevant time provides:

(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen...if the applicant satisfies the Minister that:

(a) the other person is a parent...of the applicant; and

(b) the other person is usually resident in Australia; and

(c) if the applicant... has an overseas near relative:

(i) the applicant... usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

(ii) the applicant [has not] had contact with that relative within a reasonable period before making the application...

overseas near relative, in relation to an applicant, means a person who is:

(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant...;

(3) For the purposes of paragraphs (1)(c) and (d), 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.[emphasis added]

Mr Poynder submits that during the course of her visa application, it became apparent that Ms Lumba had a relative in the Philippines - a six year old half-brother, Ace James Suarez Lumba, who had been born to her (now deceased) father and another woman. The issue before the Tribunal was whether Ace Lumba was an "overseas near relative" of Ms Lumba with the meaning of reg.1.15(2)(a) at the relevant time. If so, Ms Lumba could not be a "remaining relative" of the applicant.

Mr Poynder contends that since "half-brother" was not on the list of persons in the definition of "overseas near relative" in reg.1.15(2)(a), Ace Lumba was not an "overseas near relative" and did not therefore prevent Ms Lumba from being a "remaining relative" of the applicant. The Tribunal rejected this contention, finding that "brother" was to be given its expanded definition as in the Macquarie Dictionary, which includes "a male child of only one of one's parents". The Tribunal concluded that:

...the Tribunal attaches greater weight to the inclusion of half-brother in the dictionary definition of brother and finds that Ace Lumba is a brother of the visa applicant. Since the evidence indicates that both the visa applicant and Ace Lumba usually reside in the Philippines, the Tribunal finds that the visa applicant has an overseas near relative who usually resides in the same country as the visa applicant. The visa applicant therefore does not meet the requirements in regulation 1.15 of a remaining relative of the review applicant and the Tribunal must affirm the decision under review.(CB 116)

It is agreed between the parties that the only issue before the Court is whether the word "brother" in reg.1.15(2)(a) is to be given the "proper", restricted meaning of a male child of one's same parents, or whether it should be given the extended meaning to include "half-brother" as defined above.

Mr Poynder contends that the starting point in determining the meaning of a legislative provision is its "ordinary meaning", ascertained by the text itself, and also taking into account the context of the text and the purpose or object underlining that legislation. Mr Poynder submits that a Court cannot depart from the "ordinary meaning" of a legislative provision simply because that meaning produces anomalies: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J. Pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth), extrinsic material may also be used to either:

a) confirm that the "ordinary meaning" of the text is the correct meaning: Acts Interpretation Act, s.15AB(1)(a); or

b) determine the meaning of the text where the provision is "ambiguous or obscure", or its ordinary meaning leads to a result that is manifestly absurd or unreasonable: Acts Interpretation Act, s.15AB(1)(b).

The extrinsic material that may be considered is listed non-exclusively in s.15AB(3) of the Acts Interpretation Act.

Mr Poynder submits that his primary contention is that the "ordinary meaning" of the word "brother" is "a male child of the same parents", and that this is the correct meaning. He submits, however, that although the word "brother" used in isolation is capable of several dictionary meanings, it should be given its primary, or "proper" meaning as found in both the Oxford and Macquarie dictionaries.

Mr Poynder argues that reg.1.15(2)(a) contains both the words "brother" and "step-brother", not simply the word "brother". If only the term "brother" was in the regulation, its meaning would include "half-brother" and "step-brother". Alternatively, Mr Poynder suggests that "brother" could mean "full-brother" and "half-brother", with "step-brother" in a separate category. Mr Poynder submits that reg.1.15(2)(a) does not suggest this approach. The better approach would be to give "brother" its primary, restricted meaning. Mr Poynder submits that there is nothing in the purpose or object of the Act which assists in the meaning of the word "brother" in reg.1.15(2)(a). He referred to NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456 at [71] where Lindgren J observed that the statement of objects in s.4 of the Act is extremely general.

Alternatively, Mr Poynder submits that if the word "brother" in reg.1.15(2)(a) is "ambiguus or obscure", then it is permissible to refer to extrinsic material to aid interpretation: Acts Interpretation Act, s.15AB(2)(1). However, Mr Poynder submits that as far as can be ascertained, there are no parliamentary debates, explanatory material, reports, journals or other material which may throw light on whether the word "brother" in reg.1.15(2)(a) includes "half-brother". Consequently, that the preferred course will be to give the word its primary, limited meaning rather than an expanded meaning. That is, to limit the word "brother" to include only "half-brother".

Another approach suggested by Mr Poynder is that the restricted meaning of the word "brother" is supported by the use of the term in other legislation, which is also a permissible aid to legislative interpretation. Mr Poynder referred to D.C Pearce and R Geddes, Statutory Interpretation in Australia (Sixth Edition, 2006), p.102:

Thus, while definitions of terms in like Acts must be viewed with caution, they should not be entirely disregarded.

There are numerous examples in Commonwealth legislation where the term "brother" is used alongside, and therefore exclusive of, the term "half-brother". For example:

i)

Family Law Act 1975 (Cth), s.4, the definition of a "relative" of a child includes "a brother, sister, half-brother, half-sister, step-brother or step-sister of the child".

ii)

Military Rehabilitation and Compensation Act 2004 (Cth), s.15 the definition of a "dependant" of a member of defence force includes "the member's brother, sister, half-brother or half-sister".

iii)

Seafarers Rehabilitation and Compensation Act 1992 (Cth), s.3, the definition of a "dependent of a deceased seafarer employee includes the "son, daughter, step-son, step-daughter, grand-son, grand-daughter, brother, sister, half-brother, half-sister of the employee."

iv)

Veterans' Entitlements Act 1986 (Cth), s.3, the definition of a "sibling" of a person "includes a half-brother, half-sister, adoptive brother, adoptive sister, step-brother or step-sister of the person, but does not include a foster-brother or foster-sister of the person".

v)

Privacy Act 1988 (Cth), Schedule 3, the definition of a "sibling" of an individual "includes a half-brother, half-sister, adoptive brother, adoptive sister, step-brother, step-sister, foster-brother, foster-sister, of the individual".

Mr Poynder contends that this does no more than illustrate that the legislative drafters saw fit at times to include "half-brother" in the definition of "brother". Further, it is possible that in these cases, the definition was deliberately included to differentiate half-brother from brother.

Mr Poynder referred again to Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J:

But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies: cf Cooper Brookes (1981) 147 (CLR) at pp305, 320.

Mr Poynder submits that this supports the contention that it is up to Parliament to correct such anomalies, not the Courts.

Mr Poynder concludes that the Legislature chose particular words to define who qualifies as an "overseas near relative". It is not immediately apparent why half-siblings were not included in the definition. Mr Poynder suggests that it was to avoid uncertainty when DNA evidence is not readily available. In most cases, relationships of parent, sibling and step-sibling will be readily apparent but it can be difficult to establish half-sibling relationships. R v Miller [2001] NSWCCA 209 refers to the need for some certainty in these circumstances.

Mr Lloyd contends in his written submissions that the meaning of a word, even a word in a statute which is an ordinary English word, is a question of fact. Even if the Tribunal had erred in adopting the meaning of "brother" from the Macquarie dictionary, it would not be a jurisdictional error. Mr Lloyd referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [33]- [39] per McHugh J:

33. The first and second grounds assert that the Tribunal erred by failing to find that the applicant's son's age was a "disability" or "other serious circumstance". These grounds involve a submission that Huang, which the Tribunal followed, was wrongly decided or distinguishable.

34. While, perhaps, it did not do so in terms, it is clear from the Tribunal's reasons that it asked itself whether the applicant's son's age constituted a "disability" or "other serious circumstance". It answered these questions in the negative because, following Huang, it was of the view that age, of itself, did not constitute a "disability" or "other serious circumstance". Accordingly, the Tribunal did not "identify a wrong issue [or] ask itself a wrong question"[15]. It is the answer, and not the question, to which the applicant objects.

35. The applicant submits that the Tribunal "misunderstood the nature of the opinion which [it] is to form"[16]. He submits that the Tribunal did not understand the true meaning of "disability" and "other serious circumstance" in the definition of "special need relative" in reg 1.03. But, assuming that the Tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of "disability" and "other serious circumstance", it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant tribunal has applied an erroneous precedent rather than adopting its own erroneous interpretation.

36. The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions "disability" and "other serious circumstances" were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact[17]. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law[18]. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

37. If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

38. Even if Huang was wrongly decided, which I doubt, the Tribunal did not commit a jurisdictional error. At worst, it made an error of fact because, by applying Huang, it erroneously reasoned that Ariel did not have "need for assistance because of a disability, prolonged illness or other serious circumstance"[19]. I do not think that applying a case that wrongly decides a question of fact - the meaning of a non-technical word - can be equated to applying a wrong legal test. Huang decided a question of fact, not a question of law. If the Tribunal had adopted the meanings given in Huang, but without reference to that case, it would not have made a jurisdictional error. It makes no difference that it used Huang as its dictionary instead of interpreting the expressions itself.

39. It follows that the applicant has not demonstrated an arguable case of jurisdictional error. His application must be dismissed.

Mr Lloyd submits that the approach adopted in Ex parte Cohen is that it does not matter where one obtains definitions of ordinary English words. As it is a question of fact, it remains a question of fact regardless.

Mr Lloyd also referred to Collector of Customs v Pozzolanic Enterprisers Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1 at 9. In that case, the Court considered a number of authorities to identify questions of fact and questions of law. Justices Neaves, French and Cooper JJ state:

...Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:

(1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs(NSW) (1987) 12 ALD 491; Brutus v Cozens [1972] UKHL 6; [1973] AC 854.

(2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (NSW);; NSW Associated Blue-Metal Quarries Ltd v FCT [1956] HCA 80; (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; Neal v Secretary, Department of Transport [1980] FCA 45; (1980) 29 ALR 350 at 361-2.

(3) The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW)126 at 137-8; Lombardo v FCT [1979] FCA 66; (1979) 28 ALR 574 at 581.

(4) The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia Ltd v Phillips, supra, at 79.

(5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 ; [1980] HCA 16; 29 ALR 577 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA), supra, at ; FCR 379(Sheppard and Burchett JJ).

Mr Lloyd therefore submits that in this matter, the Tribunal looked at the ordinary English word "brother", and said that Ace Lumba was Cheryl Lumba's brother, which was a question of fact.

Mr Lloyd submits that even if a question of construction of law arises, the Tribunal made no error in construing "brother" to include "half-brother". Mr Lloyd submits that there is no reason to approach the question of construction in the manner suggested by Mr Poynder, namely to pursue all Commonwealth legislation and identify where "half-brother" has been used in addition to "brother". It is submitted that legislative use cannot be precisely the same from one Act to another.

Mr Lloyd submits that in both the Act and the Regulations, the term "half-brother" is not used. It is usual for a word to be used consistently in one enactment and in delegated legislation made there under. Mr Lloyd argues that if "brother" was construed as not including "half-brother", there would be the following consequences:

a) A person could not be a remaining relative of a half-sibling and thus be eligible to be sponsored to Australia by a half-sibling though the person could be sponsored by a step-brother: reg.1.15 of the Regulations;

b) the review rights of a person who sought a visa by reference to a desire to visit a half-sibling would be reduced: s.338(7) of the Act;

c) the review rights of a person who sought to recover their permanent residency anew had an Australia half-sibling would be reduced: s.338(6);

d) student visa holders could not evidence an ability to fund their studies from finances of their willing half-siblings (for example Schedule 5A, Item 5A205 of the Regulations);

e) it would mean that a person seeking sponsorship for a Skilled Australian Sponsored Overseas Student (Residence) visa would not be able to make a valid application if sponsored by a half-sibling (as opposed to a sibling, adoptive sibling or step-sibling) (Schedule 1, cl.1128BA(3)(l) of the Regulations);

f) an applicant for a visa under points tests would not obtain the extra 15 points they would have obtained had their half-sibling been a sibling, adoptive sibling or step-sibling (Schedule 6A, Item 6A91 of the Regulations (see also Item 6402));

g) a half-sibling would not fall within the definition of "close relative" while a step-sibling would: reg.1.03 of the Regulations.

Mr Lloyd also submits that reg.1.09A of the Regulations defines "independent relationship" to allow a visa to be granted to the non-Australian partner in same-sex relationships. However, a person will not be in an independent relationship with another if they are "within a prohibited degree of relationship". That expression is defined in reg.1.09A(3) in the following manner:

(3) For the purposes of this regulation, persons are within a prohibited degree of relationship if either of them is:

(b) a brother or sister of the other person (whether or not they have both parents in common).

Here again, the word "brother" is used in a manner that includes half-brother, though this is made unambiguously clear by the description in the brackets.

Mr Lloyd contends that it is clear from the use of "brother" in migration legislation that it extends to half-brothers. There is also no policy reason why half-brothers would be treated less favourably than step-brothers in any of the situations noted above. When considering the closeness of familial relationships, one would anticipate that generally, half-brothers are likely to be at least as closely connected as step-brothers, the former sharing one genetic parent while the latter share parents through marriage. Although Mr Lloyd concedes that step-brothers may certainly be closer than half-brothers, the legislation applies generally and there is no reason for construing "brother" in a manner differently that its usual meaning.

Counsel in this matter have invited me to determine the outcome as an issue of fact on one hand and an issue of law on the other. A question of law involves the identification and interpretation of a norm which is of general application. In this matter, it is whether the term "brother" includes or excludes the term "half-brother".

The legal test governing the decision-maker's task in determining whether a term is to be understood in its ordinary English usage as a non-technical term, or as a technical legal term, was considered in Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ:

(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law.

The distinction between legal and factual question was considered by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd and discussed above at [22]. The first four propositions from that decision were cited by the High Court Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.

The meaning of an ordinary English word may be altered by the context in which it is used. In Industry Research & Development Board v Bridgestone Australia Ltd [2001] FCA 954; (2001) 109 FCR 564 at 577, Branson, Lindgren and Mansfield JJ said "the task of choosing from amongst the possible ordinary meaning pose[s] a legal question." The correct legal meaning cannot be determined by looking at a term divorced from its setting in the relevant context.

The Tribunal undertook its analysis as follows:

Macquarie Dictionary includes the following definition of 'brother': "a male child of only one of one's parents (half-brother)." Notwithstanding the arguments put by the review applicant's representative (summarised in the preceding paragraph), the Tribunal attaches greater weight to the inclusion of half-brother in the dictionary definition of brother and finds that Ace Lumba is a brother of the visa applicant.(CB 116)

This definition appears in the Macquarie Dictionary, Revised Edition, the Macquarie Concise Dictionary, New Fourth Edition, and the Macquarie Dictionary Online. The Oxford English Dictionary, Second Edition, defines "brother" as:

"The son of the same parents, but often extended to include one who has either parent in common with another (more strictly called half-brother or brother of half-blood).

A question then arises as to whether context brings about any change in that definition. Regulation 1.15(2) at the relevant time states:

(2) In this regulation:

overseas near relative, in relation to an applicant, means a person who is:

(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse (if any);

I accept the submission that the term "brother" is not defined in the Act and not otherwise referred to. Both Counsel referred to extrinsic material to aid interpretation but that material was not persuasive. Similarly, no reference was made to any Parliamentary Explanatory Memoranda or Reading Speeches in respect of the Act or Regulations addressing this issue.

The Macquarie Dictionary definition of relative is "a person connected by blood or marriage", while the Regulations defines "close relative" in reg.1.03 as:

"close relative", in relation to a person, means:

(a) the spouse of the person; or

(b) a child, adopted child, parent, brother or sister of the person; or

(c) a step-child, step-parent, step-brother or step-sister of the person.

As stated above the Act and Regulations make no reference to the class of persons described as "half-brother". However, a half-brother must satisfy the dictionary definition of relative due to the blood connection. A DNA analysis was requested in this case and the Tribunal decision noted:

At the hearing, the Tribunal indicated that it considered that the balance of evidence currently on the case files indicated that Ace Lumba and the visa applicant were half-siblings and noted that if there were serious doubts about the paternity of Ace (as suggested by the visa applicant's grandmother), DNA testing could effectively establish whether Ace and the visa applicant shared the same father. The Tribunal passed the review applicant a letter dated 30 August 2006 in which the Tribunal invites the review applicant to indicate whether she would be willing for DNA testing to be undertaken by the visa applicant and Ace Lumba. The letter emphasised that the opportunity to undertake DNA testing is an offer, not a requirement; and noted that if the review applicant declined the invitation to undertake DNA testing the Tribunal would make its decision on the basis of all relevant information available to the Tribunal at the time of decision.(CB 115)

The half-brother relationship is permanent because of the genetic link whereas a step relationship is by its nature more transient and certainly not permanent. Further, I accept the submission made by Mr Lloyd that there is no apparent policy reason why a half-brother would be excluded from the definition while a step-brother would be treated more favourably. The denial of the reunion of a blood relative, while permitting a reunion based on marriage which may be dissolved at any time, does not appear compatible with the overall intent of the legislation. In the circumstance, I am satisfied that in the absence of direct reference to the status of "half-brother" in the Act or Regulations, the approach adopted by the Tribunal was correct. Consequently, the application should be dismissed.

I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.