FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Yucesan [2008] FCAFC 110

MIGRATION – appeal from Federal Magistrates Court – whether the requirement in cl 300.214 of the Migration Regulations that parties to a proposed marriage have “met” requires that they have come into each other’s company or physical presence – whether Federal Magistrate erred in holding the Migration Review Tribunal was correct when it found that a meeting in person was not required – relevance of ‘meeting’ in the law of corporations considered

ADMINISTRATIVE LAW – Chevron doctrine – whether doctrine of judicial deference to findings by an administrative decision-maker applies in Australia

WORDS AND PHRASES – “met”

Corporations Act 2001 (Cth) ss 249S, 249T

Migration Regulations 1994 schedule 2 cl 300.211, 300.212, 300.213, 300.214, 300.215,

300.216

Migration Regulations (Amendment) 1996 No 211(Statutory Rule SR 1996 No 211)

Bell v Burton (1993) 12 ACSR 325 considered

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 considered

Chevron USA Inc v Natural Resources Defense Council, Inc. 467 US 837 (1984) discussed

Higgins v Nicol (1971) 18 FLR 343 considered

Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565 cited

Minister for Immigration v Yucesan & Anor [2008] FMCA 317 overruled

Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345 considered

Re Ferguson (1995) 58 FCR 106 considered

Re Southern Resources Ltd; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 770 cited

Sharpe v Dawes (1876) 2 QBD 26 considered

Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419 considered

Macquarie Dictionary (second revised edition)

MINISTER FOR IMMIGRATION AND CITIZENSHIP v DEMET YUCESAN AND MIGRATION REVIEW TRIBUNAL

NSD 483 of 2008

EMMETT, STONE AND EDMONDS JJ

20 JUNE 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  Orders 1 and 2 made by the Federal Magistrates Court on 19 March 2008 be set aside, and in lieu thereof the following orders be made:

(a)                the decision of the second respondent signed on 25 June 2007 and handed down on 4 July 2007 be quashed;

(b)               the second respondent be directed to hear and determine the application for review according to law; and

(c)                the first respondent pay the applicant’s costs.

3.                  The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Migration Review Tribunal.  The matter concerns an application for a Prospective Marriage (Temporary) (Class TO) visa made by Hasan Ilhan, a citizen of Turkey who lives in Turkey.  Mr Ilhan’s application was sponsored by the first respondent, Ms Demet Yucesan, who is an Australian citizen, born in Australia and living in Sydney. A delegate of the Minister refused Mr Ilhan’s visa application on 3 April 2006.  The Tribunal disagreed with that decision and remitted the application to the delegate for reconsideration. 

2                     Clause 300.214 of the Migration Regulations 1994 provides that the parties to the proposed marriage must “have met and be known to each other personally”.  The delegate rejected Mr Ilhan’s visa application because he and Ms Yucesan, the first respondent, had never been physically in each other’s company and, therefore, in the delegate’s view they had not ‘met’.  The Tribunal rejected this interpretation of the regulation and found that meeting in person was not required and that the criterion in clause 300.214 had been satisfied.  The Federal Magistrate was satisfied that the Tribunal did not err in reaching that conclusion.  The Minister now appeals from his Honour’s decision; [2008] FMCA 317.

The Tribunal’s decision

3                     The factual background and evidence in this matter was summarised by the Tribunal as follows:

Background

The visa applicant is a twenty four year-old male who is a citizen of Turkey and states his employment as electronic technician.  He states that he has never been married.  The review applicant is a 23-year old female who was born in Australia and is an Australian citizen.  She states her employment as customer services officer and states that she has never been married.

The visa applicant lives in Turkey and the review applicant, who lives in Sydney, states that she has never met him in person.  She states that her family and the visa applicant’s family were close friends for twelve years and that she was introduced to him through the families as is the custom in Turkish culture.  She states that she was shown photographs of the visa applicant and that they communicated by SMS, email and telephone for three months before deciding to become engaged on 14 November 2005.  She states that she and the visa applicant planned to be married on 7 April 2006.

Information before the delegate

Documentary information before the delegate included identity documents, confirmation of the visa applicant’s employment and income, the visa applicant’s military service discharge documents and a notice of intention to marry on 8 April 2006.

Information before the Tribunal

On 8 June 2006 the Tribunal received a letter from the review applicant reiterating the circumstances in which she and the visa applicant became engaged.

On the day of the hearing the review applicant provided further documentary evidence relating to her relationship with the visa applicant, as follows:

·        A number of photographs showing the visa applicant and other people, said to have been transmitted on the internet.

·        A transcript of text messages, in Turkish, said to have been exchanged between the applicants on fifteen days in the period February - May 2007.

·        Two email messages, in Turkish, said to have been sent to the review applicant by the visa applicant, in November 2005 and April 2007 respectively.

On 22 June 2007, in response to a request by the Tribunal for further information, the review applicant submitted a further Notice of Intended Marriage, signed by an authorized marriage celebrant, indicating that the ceremony would take place in Sydney on 20 October 2007.

4                     On the basis of this evidence and the consistent evidence given at the hearing, the Tribunal accepted that a number of criteria for the grant of the visa had been satisfied including, relevantly, clause 300.214.  In relation to this criterion the Tribunal said:

Clause 300.214 requires that at the time of the application the parties have met and are known to each other personally.  The Tribunal finds that at the time of application the parties had not met in person.  The Tribunal notes, however, that the term ‘met’ is capable of differing interpretations and that it may go beyond the sense of meeting face-to-face by including less direct forms of contact such as letter, telephone or internet.  The validity of such an interpretation is reinforced by rapid developments in communications technology which facilitate cheap and easy messaging, including internet telephony and video telephony. … The Tribunal is satisfied that the ordinary meaning of the words “met and known to each other personally” does not exclude non physical person-to-person interactions.  In the present case, although the evidence concerning contact between the applicants is somewhat sparse the Tribunal is prepared to accept that at the time of application they had met, albeit indirectly, and that in the course of regular contacts they can be said to have come to know each other personally.  The Tribunal accepts that they have maintained their level of contact since that time up to the time of decision.  Accordingly, the Tribunal finds that the requirements of cl.300.214 of Schedule 2 are met.

Review in the Federal Magistrates Court

5                     Before the Federal Magistrate the Minister claimed that the Tribunal had made a jurisdictional error in finding that the criterion in clause 300.214 was satisfied by “non-physical person-to-person interactions”.  His Honour held that the true meaning of cl 300.214 is a question of law.  He commented that the words of the clause had to be interpreted in their legislative context and stated that the meaning to be given to the word, ‘met’ is “plainly that which will promote its purpose or object”.  His Honour referred to the history of the clause which, prior to amendment in 1996, had read:

Unless the marriage has been arranged in accordance with traditional custom observed by the family of either or both of the parties, the parties are known to each other personally.

6                     The Federal Magistrate observed that it was useful to consider the explanatory statement for Migration Regulations (Amendment) 1996 No 211 (SR 1996 No 211) which states:

Subregulation 118.3 amends clause 300.214 by substituting a clause that requires that the parties to the proposed marriage have met and are known to each other personally.  The purpose of this amendment is to curtail abuse of the previous provision for arranged marriages.

7                     Although the Federal Magistrate did not explain what he understood to be the abuse to which the explanatory statement referred, his Honour commented that it does not follow that “the meaning of meeting face-to-face is necessary to prevent the abuse of the previous provision for arranged marriages”.  His Honour said:

In my view, it can be argued that meeting by internet or video telephony is at least as effective [a] way for parties to meet and form an opinion about each other’s compatibility as a future marriage partner as the current phenomenon of “speed dating”.  The face-to-face meeting for five or so minutes in speed dating would meet the definition of “met” argued by counsel for the Minister, but a lengthy series of conversations over “Skype” would not.

8                     His Honour held that there was no jurisdictional error in the Tribunal’s reasoning on the point.

This appeal

9                     The single issue in this appeal is whether the requirement that the parties “have met” can be satisfied where they have never been in each other’s physical presence.  The appellant contends that there are three errors in the Federal Magistrate’s analysis.  First, the Federal Magistrate seemed to defer to the Tribunal in a manner reminiscent of the United States “Chevron doctrine” in considering whether the Tribunal’s construction was “arguable”.  That doctrine, it was submitted, has no place in Australian law and the Tribunal should have asked itself whether the Tribunal’s analysis was “correct” and not whether it was arguable.

10                  Secondly, the Federal Magistrate failed to appreciate that clause 300.214 of the Regulations requires two separate elements to be satisfied, namely that the parties have met; and that they are personally known to each other.  It was submitted that his Honour’s analysis erroneously “treats satisfaction of the second element as determining, or at least heavily influencing, the satisfaction of the first”.  

11                  Thirdly, it was submitted that it was not to the point that in certain hypothetical situations the parties might come to know each other more or less well.  In the appellant’s submission the issue is the correct construction of the clause which, in context, is directed to “weeding out marriages that are not genuine by ensuring that parties who have not actually met each other will not qualify”.

12                  Counsel for the first respondent submitted that the narrow meaning of “have met” ascribed by the Minister does not serve the purposes of the provision as revealed by the statutory context, as well as the broader meaning ascribed by the Tribunal and the Federal Magistrate.  It was also submitted that although clause 300.214 contains two elements, they are complementary, and so if two people know each other personally they may be said to have met. 

Consideration and conclusion

13                  The Chevron doctrine gets its name from the decision of the United States Supreme Court in Chevron USA Inc v Natural Resources Defense Council, Inc. 467 US 837 (1984) in which the Court stated, at 844:

We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations

“has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. … If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”  United States v Shimer 367 US 374, 382, 383 (1961).

14                  In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 submissions based on the Chevron doctrine were put to the High Court.  In their joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ commented at 152:

An undesirable consequence of the Chevron doctrine may be its encouragement to decision-makers to adopt one of several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result.  In a situation such as the present, the undesirable consequence would be that the decision-maker might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding of jurisdiction from judicial examination. 

15                  Gaudron J also expressed the view that there is “limited scope for the notion of ‘judicial deference’ with respect to findings by an administrative body of jurisdictional facts”. It is clear that the Chevron doctrine is not a principle that applies in Australia and, in our view, to the extent that the Federal Magistrate adopted such an approach, his Honour was in error.

16                  Before the 1996 amendment to clause 300.214, to which the Federal Magistrate referred (see [6]-[7] above), the clause provided that the applicant for a Prospective Marriage visa and the sponsor must be known to each other personally.  It allowed an exception to this requirement in favour of arranged marriages.  The 1996 amendment did two things: it removed the exception and added a requirement that the parties must have met.  The fact that this requirement was added to the existing requirement that the parties be known to each other personally suggests, as the Minister submitted, that there was:

… a conscious decision to limit the grant of prospective spouse visas to circumstances where the parties had “met” even for persons whose traditional culture involved arranged marriages.

Moreover, it suggests that the meeting requirement was independent of the requirement that the parties know each other personally.

17                  As both parties conceded, the verb “to meet” has more than one meaning.  What may be regarded as the primary dictionary meaning has the sense of two or more persons coming into each other’s physical presence.  The Macquarie Dictionary expresses this meaning as “to come into the company of” and adds the examples: “I met him in the street; I’ll meet you at the restaurant”.  The question, “Have you met George?” would generally evoke a positive answer only if the answerer had been in George’s company in this sense, as distinct from the answer, “No, but I have spoken to him on the telephone” or “I have exchanged emails with him”.  Nevertheless it is true that the meaning of words evolves with time and also with technological progress.  With the growth of the internet, the comment, “We met over the internet” would not surprise. 

18                  An example of such evolution may be found in the development at common law of the notion of a meeting, especially in the context of company law where an earlier requirement for physical presence has given way to acceptance of a meeting of minds that may occur with the aid of modern communication technology.  The general principle at common law is that, in the absence of a specific provision – either in the company’s constitution or by statute, a single person cannot constitute a meeting.  In Sharpe v Dawes (1876) 2 QBD 26 at 29 Lord Coleridge noted that “the word ‘meeting’ prima facie means a coming together of more than one person”.  Lord Justice Mellish, at 29, said that “according to the ordinary use of the English language, a meeting could no more be constituted by one person than a meeting could have been constituted if no shareholder at all had attended”. 

19                  In Higgins v Nicol (1971) 18 FLR 343, Joske J at 357 held that, in the absence of a specific provision, a meeting could not be conducted over the telephone.  His Honour observed that this position might be modified by future “technical television improvements” but his Honour’s view at the time was that:

A meeting is not only something where people speak but where they also meet each other in the flesh. 

20                  A similar view was expressed by Perry J in construing articles of association which provided for directors to “meet together” for the dispatch of business; Re Southern Resources Ltd; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 770 at 795; see also Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565 at 603.

21                  More recently however, the technological improvements anticipated by Joske J have led to suggestions that company meetings may be conducted by telephone or video conference.  In Re Ferguson (1995) 58 FCR 106 (also reported as Re GIGA Investments Pty Ltd (in admin) (1995) 17 ASCR 472) Branson J considered whether directors could ‘meet together’ by telephone or video conference.  The articles considered by her Honour were similar to those considered in Re Southern Resources.  They stated that the directors of GIGA Investments might ‘meet together’ for the despatch of business.  Branson J followed the approach taken by Tadgell J in Bell v Burton (1993) 12 ACSR 325 and Santow J in Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419.  In Bell v Burton Tadgell J said at 328-9:

No doubt there is no necessity nowadays - if there ever was - that directors should gather physically together at a directors’ meeting.  In appropriate circumstances they may meet by assenting to a document, or by telephone, video link, or other electronic means which caters for a meeting of their minds.

22                  Tadgell J’s concept of a meeting of minds was adopted by Santow J in Wagner where, at 421-422, his Honour used the concept to explain the requirements for a meeting:

Essentially, what his Honour held was that, under articles not materially different to those before me … there is no necessity for the directors to gather physically together at a directors’ meeting.  I agree that the words “meet together” connote a meeting of minds made possible by modern technology and not of bodies.  There is evidence that there was a telephone conference call so that the conversations took place with everyone hearing everyone else.

23                  In Re Ferguson Branson J agreed with Santow J and held that the words, ‘meet together’ when ordinarily used in respect of a meeting of directors connote a meeting of minds made possible either by physical proximity or by technology.  Her Honour said, at 111:

In my view, provided that each participating director is able to be aware of the contributions to the meeting made by each other director and to contribute himself or herself to the meeting without significant impediment, it is not of importance that the meeting together of the directors is achieved with the assistance of the telecommunications industry.  I conclude that directors can, generally speaking, meet together by video links or by using telephone conference connections.  A meeting of two directors only can by analogy of reasoning, in my view, generally speaking, be held using an ordinary telephone connection.

24                  Her Honour held that a ‘meeting of minds’ had been achieved with respect to the issue of the appointment of the applicant as the administrator of the company, and “that his purported appointment was valid notwithstanding that such appointment was made pursuant to a resolution of the board of the company passed at a meeting at which one of two directors was present by telephone.”

25                  In Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345 at 347, Young J applied Wagner and Re Fergson,holding that “there is no barrier to the effectiveness of the resolution because the meeting was held by telephone”.  His Honour noted that the term “meet together” in articles of association had been construed “as requiring a meeting of the minds of the directors rather than their bodies.”  This approach has statutory support in provisions of the Corporations Act 2001 (Cth); see s 249S and s 249T.

26                  These examples emphasise the importance of context, including the construction of relevant documents.  Business decisions to be made at a meeting of company directors will generally be arrived at after considering the advantages and disadvantages of competing ideas.  While it would be foolish to suppose that the dynamics of a meeting by some form of telecommunication would be the same as the dynamics of a meeting where the decision makers are present in person, the primacy of the intellectual component of the decision making has been accepted and has found its way into the concept of ‘a meeting of minds’.

27                  In this case both statutory purpose and construction of clause 300.214 lead us to a different meaning of meeting and the phrase, “have met”.  In addition to clause 300.214, the Tribunal listed the following as the primary criteria to be satisfied at the time of application for a Prospective Marriage visa:

·        The visa applicant intends to marry a person (the prospective spouse) who is an Australian citizen: clause 300.211

·        The prospective spouse is not prohibited for specified reasons from being a sponsor; clause 300.212

·        The visa applicant is sponsored by the prospective spouse, or if the spouse or intended spouse is under 18, by a parent or guardian of the prospective spouse: clause 300.213

·        The visa applicant establishes that the parties genuinely intend to marry and intend that the marriage will take place within the visa period: clause 300.215

·        The decision maker is satisfied that the parties genuinely intend to live together as spouses: clause 300.216

28                  Clauses 300.211, 300.215 and 300.216 are directed to ensuring that the marriage decision is genuine.  Clause 300.214 can be seen to be directed to the same end.  While Shakespeare may speak of the “marriage of true minds”, the decision to marry and live together as spouses involves a commitment to physical cohabitation, not just to a meeting of minds.  Whether or not the Federal Magistrate is correct that “meeting by internet or video telephony is at least as effective a way for parties to meet and form an opinion about each other’s compatibility as a future marriage partner” is not to the point.  In our view the context of clause 300.214, in particular the anticipation of physical cohabitation, provides no reason to depart from the primary sense of “have met” as requiring the parties to have come into each other’s company or physical presence.  It is entirely unsurprising that the regulation should require the parties to have met in this sense as one of the indicators that their intention to marry is genuine.  

29                  In our view the Federal Magistrate erred in holding that the construction adopted by the Tribunal was correct.  His Honour’s judgment should be set aside and in lieu thereof the matter should be remitted to the Tribunal for reconsideration in accordance with law.  The first respondent should pay the Minister’s costs of this appeal and of the proceedings in the Federal Magistrates Court.

Associate:

Dated:         20 June 2008