Moon, Jae-Woong v Minister for Immigration & Multicultural Affairs [1998] FCA 1762

REASONS FOR JUDGMENT This matter is an appeal from a decision of the Immigration Review Tribunal given on 4 August 1998. It is an interesting case which raises some quite important issues and not a little difficulty. However, as I have formed a clear view about the result of the case, I will give brief reasons now and if necessary will expand on them later. The determination of the Tribunal sets out the principal facts, and others arise in the course of the documents filed by the respondent in the preparation of this case for hearing. As a result, it is not necessary that I state them in any detail. The applicant, a Korean citizen, is now 26 years old. His father has been in Australia since 1984 and obtained permanent residence in 1986. It is not immediately clear to me whether he is now an Australian citizen, but when he left Korea to come and live in Australia, he left his wife and their two children, including the present applicant, behind in Korea. It appears that the applicant's father worked in Australia at all relevant times since it became legal for him to do so. The applicant finished high school in Korea in about February 1992 and thereafter worked part-time at a fast food outlet and full time for a clothing business for a period of about six months. He then undertook compulsory military service from about August 1992 to about October 1994. It appears that he undertook part-time work between the end of school and the commencement of his conscription into the Army because the amount of money paid to conscripts is too small for survival and he wanted to save up a little money. The evidence established, at any rate to the satisfaction of the Tribunal, that in the eight years between the time the applicant's father left Korea and the time the applicant left school he and his sister were supported by their mother who was working in Korea. The applicant came to Australia soon after the end of his military service. His mother came here apparently at the beginning of or early in his military service. When the applicant arrived in Australia, he resided with his parents and undertook a course to learn English. He returned to Korea at the end of September 1995 and then returned to Australia with his mother in April 1996. It seems that at all relevant times the nature of the visa given to the applicant prevented him from engaging in work or substantial work. At various stages he did have some work rights as a student. In July 1996, the mother applied for permanent residence in Australia as the spouse of the applicant's father, including in her application the applicant and his sister, all three being what are known as secondary applicants. In September 1997 the mother's application for permanent residence was granted but the applications of the children were refused. The Tribunal's consideration included a consideration of both the applicant and his sister but the sister, who is now married and has one or two children, does not seek any intervention of the Court. Hence the matter before the Court is the application of the applicant whose application was refused on the ground that he was not a dependant of his mother. For reasons that will appear, the decision of the Tribunal is in fact a decision that the applicant is not dependant on anyone. I say that because of the submission, made on behalf of the Minister to which I will come, that even if that decision were wrong, there is no evidence that the applicant was dependant on his mother which is a requirement of the relevant regulation 801.311(a). Thus the first question to be considered is whether there was a relevant error of law under the Migration Act in the way in which the Tribunal determined the question of dependency. Relevant concepts of dependency are defined in regulation 1.03. Briefly, dependency is said to mean being wholly or substantially dependant on another person for financial, psychological or physical support, or being a dependant child who is over 18 and the natural child of a person who is dependant on that person. Obviously this is a question of fact and is therefore a matter in which the court plays no role. The only question for the court is whether the Tribunal misconceived the meaning of dependency as set out in the regulation and misconceived or misapplied the facts before it. Although they are not strictly before me, I have been informed that the PAM guidelines exclude compulsory military service from issues relating to dependency but I am prepared for present purposes to proceed upon the basis that during the time the applicant was serving as a conscript, he was not in fact dependant on either of his parents. The relevant facts, as I have stated them, mean that even if compulsory military training is regarded as going to dependency, the applicant has only worked for two and a half years in his life, in the period between the time he finished school and the end of his military training. Since that time, the evidence before the Tribunal established that the applicant has been supported by his parents. The evidence included the mother's application for permanent residence which described her occupation as a sales manager and gave as particulars a series of jobs in this role in Korea before her departure for Australia. The definition of dependant and dependant child in regulation 1.03 properly understood means, and this was not disputed, 'dependant on the date on which the relevant application is lodged with the department'. In this case the date is that of the mother's application for permanent residence. There is no dispute again that on that date the applicant was living with his parents in Sydney and was being entirely maintained by them. There is no suggestion that the applicant has broken the requirement that he not work under his present visa and the evidence appears to have been accepted by the Tribunal that the only money to which he had access was money given to him by his parents, in particular by his father who practises Korean acupressure and apparently from time to time gave his son small sums of money to assist him in his work. Therefore, as a fact, there is no dispute that the applicant was wholly dependant on his father and mother for all types of support governed by the definition in the regulation, particularly financial support. However, the Minister has argued that there is a second limb to the definition. Relying on a decision of a Full Court of this Court (Fisher, Spender and Pincus JJ) in Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 414-5, it was argued that there must also be a reliance or need for support. The explanation of this submission was that because the terms of the applicant's visa prohibit him from working, the definition should be approached on the basis of whether he would be in work but for that prohibition. It was put that here is a 26 year old young man who is apparently in good health and that were he not prevented from working by law he would be working. It is therefore said that he is not wholly or substantially dependant upon anyone for financial support. To uphold that submission, it would be necessary to expand the definition by including some words such as that the person is or would be, but for the restriction on the visa under which the person is in Australia, wholly or substantially dependant in any one of the relevant ways. In my opinion there is no justification and no opportunity for the Court to read that type of qualification into the regulations. In my opinion the regulatory definition does not permit this gloss. My reading of the definition is that it provides for a situation of fact in the present tense, meaning that the factual situation must be looked at as at the time of the application. It has been said often enough in this Court and elsewhere that this is a highly regulated area of the law. Certainly the Parliament must be taken to have considered all possible formulations of the definition. This is not merely a submission of 'constructive' dependancy. It is a rephrasing or enhancement of the definition. The courts are criticised when they attempt to resolve anomalies arising in legislation, if that is what this situation is. In my opinion, it would be quite inappropriate for the Court to construe this definition in the way proposed. The Tribunal in its determination made this statement at page 78: (The applicant) in his evidence and information on file, confirmed that financially he had been independent of his family since he left high school. He agreed that he worked both part time and full time prior to his army service and supported himself during that period. I have been able to find no evidence to support that conclusion. Indeed the respondent did not seek to support the finding except by seeking an interpretation of the definition which involves reading in a qualification or a 'but for' concept which, in my opinion, is quite unjustified and inappropriate. There is no dispute, based upon the concept that the regulation calls for a factual present finding, that the applicant is wholly dependant for his financial support upon one or other or both of his parents, and in my view that determines that issue. Accordingly, it is my finding that the Tribunal has erred in law on two counts, both of which are associated. First, there was no evidence to support the finding of independence; second, to the extent that that finding depended upon the construction of the definition put here, a matter which was not discussed in the determination of the Tribunal itself and may not have been put to it, in my opinion it was and would have been unjustified. It is clear to me from its determination that that was the end of the matter so far as the Tribunal was concerned. From the way in which it dealt with both the applicant and his sister, and also because of the continued reference to the family situation and such like, it was clear that the Tribunal did not go on to consider whether if it had been wrong in its finding on dependency, the applicant would still have failed on the ground that he was not dependant on his mother as opposed to his father. That submission was, however, made here on behalf of the Minister. I reject it. There was no direct evidence before the Tribunal as to the contribution made to this family's affairs by the applicant's mother. There was evidence that her occupation at the time of her application for a resident visa was sales manager, but looked at in light of the rest of the application, that appears to refer to her previous employment in Korea. She did not give any particulars of any employment in Australia, but perhaps the visa that she then had prevented her engaging in work of any kind. At page 8 of the appeal papers, her application for permanent residence did contain this statement in answer to question 36 of the form (which requires the applicant to provide details about any other dependants you have, including how they are related to you and what support you provide for them (financial, accommodation, etc)): I have two dependant children (whose names she gives). They are students. I provide them with spending money, accommodation and food. We live under the same roof since they were born. The evidence did establish, and the Tribunal appears to have accepted, that since the mother's first arrival in Australia, apparently in August or September 1992 and then again in April 1996, she has been living with her husband, the applicant's father, the applicant and at many times the applicant's sister. The family was only ever separated while the applicant was doing his military service and on his visit back to Korea between September 1995 and April 1996. There is also evidence that the practice in Korean family culture is that children live at home until they are married even if they are well into their twenties and beyond and even if they are working. The Tribunal, which is of course inquisitorial, does not seem to have extracted any evidence as to the particular role played by the mother in the family circle, although her application form stated that she provided the children with spending money, accommodation and food, thus suggesting that she too makes a contribution towards her son's maintenance and financial support. On the other hand, the Tribunal did take evidence apparently from a friend of the applicant's, Leigh McCormack, who said that in his view the children, which includes the applicant, were "more dependant on the father than the mother", although "he could not comment on the financial aspects as he had no knowledge of Mr Moon's finances". Mr McCormack apparently told the Tribunal that there was a commitment between children and parents and that they stick together. He went on to say, as the Tribunal reported, "that the parents and the children have bought a house and it would not surprise me if the parents did not return to Korea if the children found it necessary to do so". I read into all of that that the applicant was dependant on both his father and his mother but this is a matter which the Tribunal has not investigated and which certainly would be necessary to investigate, if the Minister's submission in this respect is to be maintained. As I said in argument, it is rather odd, to say the least, that the government, or for that matter anyone in Australian society in the last minutes of the twentieth century, is attempting to maintain a submission that in a close family situation where the mother is supplying a range of normal parental services to children while the father is the principal breadwinner, the children's dependency is on the father, not the mother. As I have understood the development of social norms and the law in the last several decades, when a family lives together and the mother and father make contributions to the wellbeing and protection of the household, including children, little or no distinction is now drawn between the person who provides the actual money for the maintenance, accommodation and upkeep of the members of the household and the person who provides loving care, domestic services and pocket money. Clearly if the Tribunal accepts the mother's statement in the application form that she provided spending money to her son and provides accommodation, food and domestic services, there would be evidence to establish that the applicant was at least substantially dependant on the mother. But I would doubt that such refinement is appropriate or necessary at this time. Rather would it be thought that he was as much dependant upon the mother as he was on the father and that if the evidence was that the mother was providing household and domestic services including cooking, washing, cleaning and loving care both to the applicant and to his father, this would be more than adequate to satisfy any reasonable test of dependency. However, as I say, the matter has never been investigated and the Tribunal has actually made no finding on this matter at all. The decision against the applicant by the Tribunal did not turn on this point so I cannot attribute to the Tribunal any special error of law in this regard. It is the Minister's defence in this Court of the Tribunal's decision on this ground that raised the matter. Thus when the Tribunal comes to reconsider the case, it will have to take evidence on the question if it considers that there is any real distinction to be drawn at all between dependency on the mother as opposed to the father. For the reasons given, it would be surprising if it felt constrained to do so. A final submission was made by the applicant that whatever its finding was on financial support, the Tribunal failed to consider the possibility that the applicant was psychologically dependant upon his mother. There was some evidence taken about the nature of Korean families and the relationship between the members of the family unit. I have referred to one aspect of it in relation to the practice of unmarried children remaining with the family. The Tribunal itself quoted some evidence from the mother about Korean family practices and also quoted the father and the applicant himself. But the only reference to the matter in the determination was a simple statement at page 79: There is no psychological or physical evidence before me to suggest that (the applicant) is dependant on his parents in any way other than the relationship that exists between parents and adult children normally. I have some difficulty with this statement, but perhaps it is because I have not had the opportunity of listening to the witnesses. The Tribunal did not give any true reasons in this connection at all and therefore there is really no basis on which the Court can consider whether an error of law was made. That is presumably why the applicant's submission was that he was entitled to reasons as to why the evidence that was taken, and to which the Tribunal made brief reference, did not constitute psychological dependency. I think that this submission is correct. The applicant was putting forward his evidence and no doubt arranged for his mother and father, if not other people, to give evidence on the matter. No doubt he fashioned his evidence to persuade the Tribunal that there was a special psychological bond between members of Korean families that transcends what has become customary in the Anglo Saxon or Anglo Celtic tradition, particularly in relation to adult children. I have no special expertise in the field at all. All the Tribunal did was to actually quote some parts of the evidence in this connection, and give no explanation as to why it did not consider this evidence to establish psychological dependency. It seems to me that if the finding was that there was no evidence to suggest any psychological dependency, this is an incorrect statement. There was psychological evidence in the form to which I have referred, but there was no finding as to why it did not constitute psychological dependency. I think that what was necessary was that there be an explanation as to why the evidence led of psychological dependency did not amount to a sufficient basis for finding that there was such dependency within the definition in regulation 1.03. The finding therefore that the applicant was not wholly or substantially dependant on his mother for psychological support is tainted by the fact that inadequate or no reasons were given for this finding. For those reasons it seems to me that the decision of the Tribunal manifested errors of law which require the intervention of the Court. Accordingly I order that the decision of the Tribunal be set aside and the case remitted for a rehearing by a differently constituted Tribunal. The respondent will pay the applicant's costs of the application. The Minister or his advisers might care to reconsider this matter prior to any rehearing. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO