[1992] FCA 430; (1992) 37 FCR 501

(1992) 28 ALD 491 (extract)

Citizenship, Immigration and Emigration - Entry permits and change of status - Extended eligibility (family) permit - Normal disabilities of infancy not "permanent incapacitation".

Citizenship, Immigration and Emigration - Entry permits and change of status - Extended eligibility (spouse) permit - "De facto spouse" - Cohabitation not "on a genuinely domestic basis as spouses" while one cohabitant is resorting overnight on a number of occasions to another residence in which the person is living to whom that cohabitant is married.

Migration Act 1958 - s.34

Migration Regulations 1989 - regs. 2, 3A, 126(1), 127(a)(iii)

Counsel for the Applicant : Mr S.J. Gageler instructed

by Elsworthy Jones

Counsel for the Respondent : Miss R.M. Henderson

instructed by Australian

Government Solicitor

The Court orders that:

1. The application be dismissed.

2. The respondents' costs of the application be paid by the

applicant.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Application for an order of review in respect of a decision under the Migration Act 1958 to refuse to grant an extended eligibility entry permit to the applicant.

2. The decision was made on 27 November 1991 by the second respondent as a delegate of the first respondent. The applicant was the person who had made application for the permit. One ground of the application for the permit was that certain criteria prescribed by Regulation 127(1) of the Migration Regulations 1989 in relation to an extended eligibility (family) permit were satisfied, namely that:

"(a) at the time when the application for the entry permit

is decided, the applicant:

(iii) as the result of a death or permanent

incapacitation:

(A) is .... (a) special need relative

....; and

(B) the relative in Australia to whom that

relationship relates is an Australian

citizen, or an Australian permanent

resident, who has been resident in

Australia for a reasonable period;"

and that certain other circumstances existed, which it is unnecessary for present purposes to rehearse. The applicant first entered Australia on 21 December 1989 and has remained here. She was granted a temporary entry permit on entry and at the time when she applied for the permit which she has been refused she was the holder of a temporary entry permit. On 9 December 1990 she gave birth to a male child. He is an Australian citizen. It is his "permanent incapacitation" which was proposed as satisfying that criterion. So far as appears he is and has always been in normal health and endowed with the capacities normal for one of his tender years. The incapacitation suggested is that which is inherent in normal children. The expression "special need relative" is defined in Regulation 2 thus:

"'special need relative', in relation to an Australian citizen or an

Australian permanent resident usually resident in Australia, means a

relative who is willing and able to give substantial continuing

assistance to the citizen or resident where:

(a) the citizen or resident has a permanent or long-term need for

assistance because of death, disability, prolonged illness or

other serious circumstances affecting the citizen or resident

personally, or a member of his or her family unit;

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a

relative who is an Australian citizen or an Australian

permanent resident; or

(ii) welfare, hospital, nursing or community services in

Australia."

It was common ground that a permanent incapacitation which brings the applicant within the defined meaning of "special need relative" may be an incapacitation either of the Australian citizen (or permanent resident usually resident here) to whom the relationship relates or of another person. If that be so, the "incapacitation" contemplated by Regulation 127 includes an inability to feed and clothe oneself unaided, and may extend to include other inability to maintain oneself unaided. So interpreted, the word might be understood accurately to describe the condition of a normal infant in this country until he was well advanced in adolescence. (On the other hand it might be said that so to understand the word is to ignore usage and context.) The context in which the word occurs, where it is given, like death, a causal operation by the phrase "as the result of", might suggest that it is intended to describe, not a condition, but an occurrence : "being rendered incapable", as the Oxford English Dictionary (2nd ed.) has it. But an occurrence cannot have the quality of permanence. A condition can. And the same dictionary has also for the word : "the fact of being incapacitated".

3. None of the several normal disabilities of infancy which may attract the description which the word "incapacitation" expresses can in my opinion be described as "permanent". In the context which Regulation 127 supplies the word "permanent" in my opinion means likely to continue indefinitely, that is for a substantial but undetermined period. The incapacitation of a normal infant, such as that postulated in this case, is likely, on the contrary, to continue for a substantial period of time the duration of which can be, and is habitually, prophesied confidently by reference to common experience. If the applicant's child's condition may be said to be an incapacitation, as to which it is unnecessary to express a conclusion, the incapacitation cannot in my opinion be called permanent.

4. Mr Gageler of counsel for the applicant submitted that a passage in a record made by the second respondent of the conclusions reached in deciding to refuse the applicant a permit disclosed error of law vitiating the decision. The passage reads:

"While I recognise the nominator's incapacitation by virtue of his young

age the definition of the word 'permanent' in the Australian Concise

Oxford Dictionary and the Macquarie Concise Thesaurus are 'lasting,

indefinitely' 'changeless, eternal' respectively.

With regard to the statement claiming that infant, the nominator, is

'wholly or substantially' dependent on Ms Chen, his mother, for

'financial, psychological and physical support' it can be concluded

that, this dependency will undoubtedly decrease over the time and thus

defies the definition of permanency. Ms Chen therefore fails to satisfy

subregulation 127(a)(iii)." (sic)

It was submitted that the inclusion of the words, "changeless, eternal", demonstrated that the decision maker had given to the word "permanent" in Regulation 127 a meaning which on the proper construction of the regulation the word did not bear. I am not at all persuaded that the inclusion of those words does demonstrate the error suggested. This court has on several occasions pointed out that written statements of reasons for administrative decisions are not to be captiously conned for infelicities of expression suggestive of a possible legal error. The delegate may have been intending to give an indication of the range of meanings found in the dictionaries. In any event, the circumstances alleged on the applicant's behalf do not in law admit of a conclusion that the applicant's infant child had experienced, or was at any time in a state of, "permanent incapacitation", within the meaning of that expression in Regulation 127, in my opinion. Even if the error suggested had been made, that would not justify an order that the decision be set aside.

5. Mr Gageler submitted, in the alternative, that there had existed at the time when the application for the entry permit was decided, a "permanent incapacitation" of the infant's father, as a result of which the applicant was a "special need relative" in relation to the child. The father was at material times an Australian permanent resident. A letter under cover of which the application for the permit was submitted to the first respondent, by a migration agent, included the following:

"The degree and nature of assistance required by John Ka Chun Mui cannot

reasonably be obtained from any other relative or service provider in

Australia. The only person able to provide the necessary physical and

emotional support is his mother. Mr Tsui Kei Mui, although willing and

able to provide financial support is not able to reasonably provide the

physical and emotional assistance required. He is married, his wife

does not know of his relationship with Ms Chen and he travels frequently

on business. In any event, no one, not even a child's father can

reasonably provide the assistance provided by the child's mother."

The quoted observations may have been intended to show that the requirement stated in paragraph (b)(i) of the definition of "special need relative" was satisfied. But it was submitted that the delegate erred in failing to recognise that the father's "permanent incapacitation" satisfied the requirement of Regulation 127(a)(iii).

6. The submission raises the question : incapacitation for what? As Fox J. observed in Repatriation Commission v. Moss (1982) 40 ALR 553 at 557 : "(T)he very notion of incapacity involves consideration of capacity for something; some external frame of reference is necessary". Assuming, as the parties did, that the permanent incapacitation contemplated by Regulation 127(a)(iii) may be that either of the person to whom the special need relative is willing and able to give assistance or of some other person, the capacity of which the person is conceived to be permanently deprived may be either a capacity to function without need of assistance or a capacity to give assistance to one who has need of it. There is nothing in the material before the delegate to suggest that the father lacked any capacity to provide anything of which the child had need, except the psychological nurture of his natural mother. A reading of the definition of "special need relative" persuades me that Regulation 127 is not concerned with a need of that kind, which can be satisfied by only one person. That need aside, all that appears is that the father is unwilling to give the needed assistance, not that he lacks the capacity to give it. Even if the giving of assistance which the definition contemplates is limited to physical activity undertaken personally by the special need relative to assist the citizen or resident, the material before the delegate did not show incapacity in the father. Even if his commitment to his business could be regarded as constituting an incapacity to give assistance to the child, that incapacity could not be regarded as permanent. He could relinquish his business activities. Paragraph (b) of the definition of "special need relative" imports by the word "reasonably" considerations by reference to which the wishes and aptitudes and moral obligations to others of the person therein designated "any other relative of the citizen or resident" may be taken into account. But in my opinion the expression "permanent incapacitation" in Regulation 127(iii) has reference merely to the lack of one or several physical or mental faculties. No such a lack in the father was suggested by the material before the delegate, who therefore did not in my opinion err in failing to consider whether the applicant was a special need relative in relation to the child "as the result of" the condition of the child's father.

7. Regulation 126 at relevant times specified criteria in relation to an extended eligibility (spouse) permit. One of the criteria is that "at the time when the application is decided ... the applicant ... is the spouse of ... an Australian permanent resident". At relevant times the applicant's child's father was such a resident. He has at relevant times been married to another woman, but the definition of the word "spouse" includes "a de facto spouse". Regulation 3A provided at relevant times:

"3A(1) For the purposes of these Regulations, a person is the de

facto spouse of another person if, at the time when an application for a

visa or entry permit is made by either of the persons, they:

(a) have lived together, for the whole of the immediately

preceding 6 months (or such lesser period as is specified in

a particular case, under subregulation (2)), on a genuinely

domestic basis as spouses without being legally married to

each other; and

(b) are not of the same sex; and

(c) have both reached the age:

(i) if neither of the persons has an Australian domicile

- of 16 years; or

(ii) in any other case - of 18 years.

(2) For the purposes of subregulation (1), the Minister may, on

written application, specify a period of less than 6 months if the

Minister is satisfied that:

(a) there are exceptional circumstances affecting the persons;

and

(b) there are compelling reasons for specifying that lesser

period."

The migration agent adverted, in the letter to which I have referred, to the relationship between the applicant and the child's father in an introductory passage entitled "Background", in these terms:

"Ms Chen currently holds a Class 555 student permit which is valid until

25 November 1991. She is the mother of an Australian citizen infant,

John Ka Chun Mui. The infant was born on 9 December 1990 in Sydney to

Ms Chen and Mr Tsui Kei Mui who is an Australian permanent resident.

The infant is 'wholly or substantially dependent' on his mother for

'financial, psychological or physical support'.

By virtue of his age John Ka Chun Mui is incapacitated or incapable of

caring for himself in any fashion. The emotional and physical

deprivation that he would suffer if denied his mother's care in

Australia would be of a permanent nature.

Ms Chen has a long standing 'de facto' style relationship with Mr Tsui

Kei Mui, the father of her infant child. Mr Mui and Ms Chen share an

apartment at 7/274 Bondi Road, Bondi. The lease, telephone, electricity

and gas are all in their joint names. They are joint shareholders in a

local operating company, Seaview Garments Manufacturing Pty Ltd.

Despite the above and the fact that Ms Chen is pregnant again, the

relationship does not satisfy the legal definition of a de facto

relationship as it is not mutually exclusive. Mr Mui still maintains a

married relationship with his official wife.

Mr Mui is prepared to nominate Ms Chen for a permanent entry permit but

is unable to do so because of the restrictions of the Migration

Regulations. He has however provided a supporting nomination for Ms

Chen, to support the principal nomination by his son. Mr Mui has also

provided an assurance of support for Ms Chen. He is financially secure

and capable of meeting the obligations of the assurance. The supporting

documents enclosed with this application include a listing of a number

of Mr Mui's assets in Australia, totalling almost A$4 million. It is Mr

Mui's intention to place two of his residential properties in a trust

with Ms Mui and his son as the beneficiaries. Mr Mui has already

provided Ms Mui with 20% equity in Seaview Garment Manufacturing Pty Ltd.

It is evident that Ms Chen will be financially secure if she is granted

residence. She will be more than adequately provided for by Mr Mui and

she will not be a charge on the State."

The written application was submitted, under cover of the letter, in the form approved by the first respondent. That form includes a number of printed questions and directions as to the making of certain declarations in a section headed "Grounds of marriage or de facto marriage". Explanatory matter on the front of the form makes it clear that the form is approved for use in respect of an application for an extended eligibility (spouse) permit as well as an application for an extended eligibility (family) permit. None of the questions on the form under the heading "Grounds of marriage or de facto marriage" has been answered and none of the directions has been complied with. A line has been drawn transversely through the page which has that heading. Elsewhere in the application form both the applicant and the child's father have made answers justifying the inference that neither of them was seeking to assert that there subsisted a relationship which answered the description contained in Regulation 3A. However, there are assertions of fact in the covering letter and in the application form, as well as documents enclosed with the form, from which an inference might be thought to arise that such a relationship was subsisting. Mr Gageler submitted that what deflected the decision maker from drawing that inference and granting the applicant an extended eligibility (spouse) permit was the decision maker's acceptance as correct of the legally erroneous statement by the migration agent that "the relationship does not satisfy the legal definition of a de facto relationship as it is not mutually exclusive. Mr Mui still maintains a married relationship with his official wife." In vindication of that submission Mr Gageler pointed to the following passages in the record of the decision maker's conclusions:

"Mr Ray Brown of Ray Brown Migration Services Pty. Ltd. makes the

following claims on Ms Chen's behalf:

- Ms Chen is the natural mother of an Australian citizen infant, the

nominator, born on 9 December 1990 to an Australian permanent

resident

- the nominator is 'wholly or substantially dependent' on his mother

for 'financial, psychological or physical support'

- the nominator, by virtue of his age is incapacitated or incapable of

caring for himself in any fashion

- the nominator would suffer emotional and physical deprivation if the

applicant is required to leave Australia

- Ms Chen's de facto style relationship to the Australian permanent

resident does not satisfy the legal definition of a de facto

relationship as it is not mutually exclusive as the Australian party

still maintains a married relationship with his official wife

- Ms Chen is expecting her second child to the same Australian party

- Ms Chen and the nominator is guaranteed financial security by the

said Australian party."

The record then continues with statements of the decision maker's conclusions that none of the criteria specified in Regulation 127 is satisfied. Then follows this passage:

"In relation to regulation 126(1) Ms Chen does not meet the legal

definition of 'de facto spouse' under regulation 2. The above

assessment is also based on the information provided by Mr Ray Brown the

migration consultant acting on Ms Chen's behalf. Ms Chen therefore

fails to satisfy regulation 126(1)."

Mr Gageler submitted that, notwithstanding the presence of the word "also" in the last sentence quoted, what the decision maker calls "(t)he above assessment" can be seen, on a reading of the whole of the record, to have had no other basis in the decision maker's mind than what was recorded as one of Mr Ray Brown's "claims". Miss Henderson of counsel for the respondents denies that the first sentence of the passage quoted is to be understood to have been based only on what the decision maker recorded of that claim. The conclusion stated in the first sentence of the quoted passage should be understood to have been based on the whole of the material before the decision maker and, so understood, was justified by that material, according to Miss Henderson's submission.

8. In my opinion the words of Regulation 3A - "they .... have lived together for the whole of the immediately preceding 6 months .... on a genuinely domestic basis as spouses" - would not comprehend a cohabitation throughout the stated period which was interrupted on more than a few occasions by Mr Mui's resorting to the house where his wife lived for bed and board. If he did so resort, even if only for one night at a time, on more than a few occasions during the period, the phrase "on a genuinely domestic basis as spouses" would not comprehend his cohabitation with the applicant, in my opinion. It is impossible to know with certainty what the migration agent meant by the sentence, "Ms Chen's de facto style relationship to the Australian permanent resident does not satisfy the legal definition of a de facto relationship as it is not mutually exclusive as the Australian party still maintains a married relationship with his official wife". The sentence seems to be intended to convey that Mr Mui sometimes resided in the house where his wife lived. The material before the decision maker, considered as a whole, did not in my opinion admit of an affirmative conclusion that the applicant and Mr Mui had lived together for the whole of the relevant period on a genuinely domestic basis as spouses. Accordingly an extended eligibility (spouse) permit could not lawfully have been granted to her on that material. Nor does the passage in the record of the delegate's conclusions upon which Mr Gageler relied demonstrate that an erroneous understanding of the expression "on a genuinely domestic basis as spouses" was entertained by the delegate.

9. In the alternative Mr Gageler submitted that the decision to refuse any permit of the class of permits to which the application form related was the exercise of a power that was so unreasonable that no reasonable person could have so exercised the power. This was a case, Mr Gageler submitted, of the kind to which Wilcox J. referred in Prasad v. Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 65 ALR 549 at 563 : "The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information". Here, it was submitted, there were indications that the criteria of eligibility for an extended eligibility (spouse) permit may have been satisfied and that legal error on the part of the migration agent may have misled the applicant into failing to realise that. In those circumstances the decision maker's failure to make enquiry was unreasonable in the sense indicated by ss. 5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 and expounded by Wilcox J., it was submitted.

10. There was no evidence tendered to the court in this proceeding that the criteria had been satisfied or that such an error by the migration agent had misled the applicant. But, even if there had been, I would not consider that the suggested ground of review had been made out. It was plain that a considered decision had been made by the migration agent not to seek to show satisfaction of the criteria for an extended eligibility (spouse) permit. (It will be re-called that the migration agent had asserted in the covering letter that Mr Mui's wife did not know of his relationship with the applicant.) The migration agent's covering letter did not demonstrate legal misapprehension on his part, but only a failure to make his meaning plain beyond doubt. In those circumstances the delegate's failure to seek elucidation of the passage quoted from the covering letter cannot in my opinion be characterised as unreasonable.

11. In the result the application must be dismissed with costs.