Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo

REASONS FOR JUDGMENT French J: 1 This is an appeal against a decision of Spender J given on 15 April 2005 in which he dismissed an application by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister)for judicial review of a decision of the Migration Review Tribunal (the Tribunal)which was given on 15 September 2004. By that decision, the Tribunal set aside a decision by the Minister's delegate to refuse a remaining relative visa to Yanire Hidalgo. It remitted the application to the Minister for reconsideration with a direction that Ms Hidalgo met relevant criteria for a subclass 835 remaining relative visa. 2 Ms Hidalgo, is a national of Chile who was born on 1 September 1975. She had arrived in Australia on a subclass 686 tourist (long stay) visa on 17 December 1998. She left on 14 June 1999 and re-entered on 17 June 1999. Her tourist visa was due to expire on 17 December 1999. She applied for an Other Family (residence) (class BU) visa on 14 December 1999. A delegate of the Minister refused the grant of that visa on 12 January 2004. 3 The application for the Other Family visa was lodged on the basis that Ms Hidalgo is a remaining relative of, and nominated by, her father who resides in Australia. Ms Hidalgo said in her visa application that her family comprises her father, Juan de Dios Ahumada, and her step-mother, Leonor Maria Ahumada, who are married and who both reside in Australia. According to the application Ms Hidalgo did not know the country of residence of her natural mother, Adelina Argelia Hidalgo. She has siblings, Trinidad, born on 20 June 1976, Juan, born on 14 October 1981, and Robert, born on 17 June 1986, all of whom reside in Australia. 4 In a typed statement signed and dated 13 December 1999, Ms Hidalgo said that she lived with her mother and grandmother after she was born and that her father had left when she was a few months old. Her mother began a spousal relationship and her grandmother moved out of the house. She claimed to have been abused by her stepfather and, eventually, went to live with her grandmother when her mother became pregnant to the stepfather. She said she had cut contact with her mother and stepfather and never saw them again. She lived with her grandmother until her grandmother died in August 1987. She was then taken in by a friend. Her grandmother had helped her to get in touch with her father in Australia. She spoke to him for the first time in 1994 and met him in 1995. She visited Australia in 1998 and learned that her mother was no longer living where she used to live. 5 The delegate dealing with the visa application found that Ms Hidalgo's natural mother and her mother's child, that is a step-sibling, were 'overseas near relatives' within the meaning of reg 1.15 of the Migration Regulations and, also, that those two persons appeared still to be living in the country in which Ms Hidalgo had previously resided before coming to Australia as a visitor, that is, Chile. The delegate found that consequently Ms Hidalgo did not meet the criteria for the grant of a remaining relative visa. On that basis her application was refused. 6 Ms Hidalgo applied to the Tribunal for review of the delegate's decision. That review went to hearing on 3 August 2004. She gave oral evidence as did her father and her stepmother. The Tribunal, in its reasons, made an express finding that Ms Hidalgo usually resides in Australia and did so at the time of the decision. It found that her natural mother usually resides in Chile, that being herlast known address and there being no reliable evidence to suggest that she had moved to another country. The Tribunal also found, for the same reason, that Ms Hidalgo's half-sister usually resided in Chile. 7 The Tribunal found that, at the date of the application, Ms Hidalgo resided in Australia. It found that the application satisfied the requirements of reg 1.15(1)(a), (b), (c)(i) and (ii) and that on that basis Ms Hidalgo met the requirements of the regulation. It found that she was the remaining relative of an Australian citizen who was her father, and that she satisfied the requirements of subclause 835.212 of the relevant schedule to the Migration Regulations. It also found that, at the time of decision, she continued to be the remaining relative of an Australian citizen. 8 In the Tribunal's reasons for decision it said (at [43] and [44]): Since arriving in Australia in December 1998, the visa applicant has been offshore for 3 days, between 14 June 1999 and 17 June 1999. The visa applicant gave evidence that she has been living in Australia since 1998 and that she has only been out of the country since then to New Zealand in 1999 for a very short time. She gave evidence that she had known her family in Australia for enough time by 1999 to decide that she wished to stay in Australia. There is no evidence before the Tribunal that the visa applicant has any financial interests or maintained a home in Chile or has returned there since coming to Australia in 1998. The evidence before the Tribunal indicates that the visa applicant has developed her life in Australia, having worked part time and now full time with Bendix Business Furniture since 28 August 2003 as evidenced by a reference from that business. She has also stated that she has had a relationship with a boyfriend in Australia for the past 3 years. The Tribunal finds that she has had a physical presence in Australia since she came in 1998 and that she has had an intention to stay in Australia before the time of application and since the time of application. The Tribunal accepts that the visa applicant and her father had an argument in January 2000 which involved a police investigation but accepts that the parties reconciled. The Tribunal finds that the visa applicant usually resides in Australia.' And further (at [46]): 'The Tribunal finds that the natural mother usually resides in Chile as that is her last known address and there is no reliable evidence to suggest that she has moved to another country. The Tribunal also finds that the step sister usually resides in Chile as that is her last known address and there is no reliable evidence to suggest that she has moved to another country. Accordingly, the Tribunal is satisfied that, at the date of application, the visa applicant resided in Australia, which is a different country from that in which her natural mother and step sister resided. The visa applicant meets subparagraph 1.15(1)(c)(i).' Grounds of Appeal 9 In the application for judicial review of the Tribunal's decision, the Minister asserted that 'the Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material'. The particulars of the ground were set out as follows: '(i) The Tribunal misconstrued or misapplied reg 1.15(1)(c)(i) of the Migration Regulations 1994. (ii) The Tribunal found that the applicant had 2 overseas near relatives, each of whom resided in Chile. (iii) The Tribunal found that the applicant usually resided in Australia both at the time of application and at the time of decision. (iv) The Tribunal erred in law in finding that the applicant was a "remaining relative" within the meaning of reg 1.15, and in particular that she satisfied reg 1.15(1)(c)(i), on the basis that she usually resided in a different country to the country in which her overseas near relatives resided. (v) The Tribunal misconstrued or misapplied reg 1.15(1)(c)(i), which required that the applicant usually reside in a country, not being Australia, that is different to the country in which each of her overseas near relatives resided.' The Terms of Regulation 1.15 of the Migration Regulations 10 The relevant part of the Migration Regulations is reg 1.15 which came into force on 1 November 1999 pursuant to amendments to the Regulations made by Migration Amendment Regulations 1999, Number 13, SR Number 259. It defines the term 'remaining relative' which is the status that the applicant for a remaining relative visa must have in order to qualify for the grant of the visa. Regulation 1.15(1) provides: 'An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that: (a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant, and (b) the other person is usually resident in Australia, and (c) if the applicant or the applicant's spouse (if any) has an overseas near relative: (i) the applicant and the applicant's spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and (ii) neither the applicant nor the applicant's spouse (if any) have had contact with that relative within a reasonable period before making the application, and (d) the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; and (e) if the applicant is a child who: (i) has not turned 18; and (ii) has been adopted by an Australian citizen, an Australian resident or an eligible New Zealand citizen (the adoptive parent) while overseas - at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.' Regulation 1.15(2) sets out a definition of 'overseas near relative' which is not directly material for present purposes, and reg 1.15(3) provides that: '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.' The Issue on Appeal 11 In his Honour's reasons for judgment, he found, substantially on policy grounds, that reg1.15(1)(c)(i) did not operate to disqualify an applicant from the grant of a visa in the event that, or the circumstance that, the applicant was usually resident in Australia. At one point, his Honour construed the 'not being Australia' reference in reg 1.15(1)(c)(i) as a reference to the location of the overseas relative, rather than that of the visa applicant. The grounds of appeal against his Honour's decision were in the following terms: '2. His Honour erred in law in holding, at [37] of his Reasons, that it was the stated intention of the amendments to Regulation 1.15 of the Migration Regulations 1994 ("the Regulations"), effected by the Migration Amendment Regulations 1999 (No 13),SR 259, that the usual residence of an overseas near relative could not be Australia. 3. His Honour erred in law in holding, at [38] of his Reasons, that it was never the intention of the amendments to Regulation 1.15, effected by the Migration Amendment Regulations 1999 (No 13) SR 259, that an Applicant would not satisfy the requirements for a remaining relative visa if an Applicant for a remaining relative visa was usually resident in Australia. 4. His Honour erred in law in holding, at [60] of his Honour's Reasons, that the words "not being Australia" in Regulation 1.15(1)(c)(i) apply to the country of usual residence of the overseas near relative, and not the usual residence of the Applicant for the remaining relative visa. 5. His Honour erred in law in holding, at [61] of his Reasons, that the Migration Review Tribunal ("MRT") did not err in the construction which it preferred of Regulation 1.15(1)(c)(i) of the Regulations and thereby constructively fail to exercise the jurisdiction conferred upon it. 6. His Honour erred in law in dismissing the Appellant's Application.' The point on the appeal narrows down to the construction and application of reg 1.15(c)(i) of the Migration Regulations. The Proper Construction of Regulation 1.15(1)(c)(i) 12 In my opinion, reg 1.15(1)(c)(i) is intended to apply to the circumstance in which an applicant for the relevant visa has an overseas relative in another country. It is concerned with their geographical relationship when they both reside outside Australia. It is not a regulation which is intended to bring in, by a sidewind, a disqualifying criterion for the grant of such a visa based upon the circumstance that the applicanthappens to have her only usual residence in Australia. In the event that the applicant usually resides in Australia only, then the criterion under reg 1.15(1)(c)(i) simply does not apply because the circumstances to which it is intended to apply do not arise. 13 It is submitted by counsel for the Minister that the Tribunal failed to ask itself the question it was required to ask, namely, whether the visa applicantmight usually reside in some country as well as Australia. The Tribunal found that she resided in Australia in terms which are clearly indicative of a finding that she resided only in Australia. However, the question which it is now said that the Tribunal ought to have asked itself does not appear to have been agitated before the Tribunal. It does not emerge at all from the grounds of review before his Honour, and it is not reflected in his Honour's reasons, which suggests that it was not put to his Honour as a basis for overturning the Tribunal's decision. 14 In the factual context in which the Tribunal made its finding of residence, there does not seem to be any realistic room for a concurrent conclusion of residency in another country. Regulation 1.15(1)(c)(i) is simply not applicable to operate as a disqualification of the visa applicant from the grant of the relevant visa. For these reasons the appeal should be dismissed. The appellant is to pay the respondent's costs of the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.