FEDERAL COURT OF AUSTRALIA

Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145

MIGRATION – Remaining Relative visa – construction of reg 1.15(1)(c) of Migration Regulations 1994 (Cth) – whether it sufficed that there was one overseas near relative with whom neither the visa applicant nor visa applicant’s spouse had had contact within a reasonable period before making the visa application

Held: (1) There was no appearance of an intention other than that the singular was to include the plural; (2) There must be no overseas near relative with whom the visa applicant had had contact within a reasonable period before making the visa application.

Acts Interpretation Act 1901 (Cth) s 23

Migration Regulations 1994 (Cth) cl 115.211

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 cited

Elliott v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 67 referred to

SHARIF SHERZAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 578 OF 2008

MOORE, LINDGREN AND BUCHANAN JJ

18 August 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’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:

Introduction

1                     Mohammad Hussain Sherzad (the visa applicant) applied to the Australian High Commission in Islamabad, Pakistan, to migrate to Australia in August 2005.  He was sponsored by his brother, the appellant.  The application was for the grant of a “Remaining Relative visa”.  A Remaining Relative visa was sub-class 115 of an “Other Family (Migrant) (Class BO)” visa. 

The Regulations

2                     The requirements for the grant of a remaining relative visa were set out under the heading “Subclass 115 Remaining Relative” in Schedule 2 to the Migration Regulations 1994 (Cth), which required that the visa applicant be a remaining relative of an Australian Relative of the visa applicant: cl 115.211(1).  The expression “Australian relative”in relation to a visa applicant was defined to mean a relative of the visa applicant who was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:  cl 115.211(2).  The appellant was and is an Australian relative of the visa applicant.

3                     At the relevant time, the term ‘remaining relative’ was defined by reg 1.15 in the following way:

1.15     Remaining relative

(1)               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 permanent 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.

(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); or

(b)               a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:

(i)                  has turned 18 and is not a dependent child of the applicant  or of the applicant’s spouse (if any); or

(ii)                has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse (if any) –

other than a relative of that kind who:

(c)               is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d)               is usually resident in Australia.

(3)       For the purposes of paragraphs (1)(c) and (d), an overseas near relative is taken to reside in his or her last know country of residence unless the applicant satisfies the Minister that the relative resides in another country.

4                     In his application for the visa, the visa applicant disclosed that he had the following surviving relatives:  a brother (the appellant) resident in Australia (who was his sponsor), a mother and one sister who lived in Afghanistan, and a second sister whom he described in different places in his application as residing in Iran and in Afghanistan. 

5                     The delegate of the then Minister thought that the visa applicant was living in Pakistan unlawfully, and was to be treated as if living in Afghanistan.  On that basis, the visa applicant failed to satisfy sub-para (i) of para (1)(c) of the definition of “remaining relative” in reg 1.15.

The application to the Migration Review Tribunal

6                     The appellant applied to the Migration Review Tribunal (‘the MRT’) for review of the delegate’s decision.  In a decision signed on 17 July 2007 and sent to the visa applicant by letter dated 6 August 2007 the MRT affirmed the delegate’s decision.  The MRT recorded that the appellant (referred to in the MRT’s reasons for decision as the review applicant) informed the MRT that although he did not have any contact with his sister in Iran, he provided financial support to his mother and sister in Afghanistan.  The appellant told the Tribunal that his contact with his mother and sister in Afghanistan was limited on account of religious differences, and that the visa applicant had no contact with them, again on account of religious differences. 

7                     The MRT made the following findings: 

 As discussed with the review applicant at the hearing the Tribunal accepts that the family composition of the visa applicant is that of three overseas near relatives as defined in r.1.15(2).  That is his mother and two sisters.  The Tribunal accepts that one sister resides in Iran with her husband and that the visa applicant does not have contact with her.  The Tribunal also accepts that a second sister resides in Kabul in Afghanistan.

The Tribunal accepts that the visa applicant resided with his mother in Pakistan legally as a refugee from June 2002.  …

The review applicant claims that his mother returned to Afghanistan in May 2004 to live with his sister there.  The review applicant further claims that since that time there has been no contact between the mother and sister in Afghanistan and the visa applicant because of religious differences.

However the Tribunal does not accept that there has been no contact between the visa applicant and his mother and sister residing in Afghanistan.  As discussed with the review applicant at the hearing the Tribunal was unconvinced by the review applicant’s oral evidence that religious differences between family members was such that contact was severed.

The Tribunal notes that the family appear on the evidence to continue to act as a family unit despite geographical differences.  The review applicant operates as the head of the household managing the family property in Kabul and ensuring that income follows [sic] from this to his mother and sister and maintains contact with them.  The review applicant also maintains regular contact with the visa applicant.

Furthermore, the review applicant in his written statement to the Tribunal he [sic] stated that his mother left Pakistan where she was living with the visa applicant in May 2004 and the visa applicant lodged his application for a remaining relative visa in August 2005, some fourteen months after he no longer lived with his mother.

As discussed with the review applicant at the hearing Regulation 1.15(1)(c)(ii) requires that the applicant have had no contact with the overseas near relative “within a reasonable period before making the application.”

The term “reasonable period” is undefined, Department guidelines in PAM 3 suggests that three years may be considered to be “a reasonable period” of time.  Whilst the Tribunal is not bound by this interpretation it does provide some guidance as to the term “reasonable period.”

Given that the visa applicant was residing with his mother up until fourteen months prior to lodging his application and given the unpersuasive nature of the claim that all subsequent contact has been severed because of religious differences the Tribunal is not satisfied that the visa applicant has had no contact with his overseas near relatives within a reasonable period before making his application for a remaining relative visa.

On the basis of the findings above, the Tribunal is not satisfied that the requirements of r.1.15(1)(c) of the definition of remaining relative are met.

[our emphasis]

8                     The principal foundation for the conclusion that the requirements for a Remaining Relative visa were not met was that the MRT did not accept that the visa applicant did not continue to have contact with his mother and sister living in Afghanistan.  In any event, the MRT was not satisfied that a period of fourteen months constituted a ‘reasonable period’during which no contact had occurred.

The application to this Court

9                     The decision of the MRT was unsuccessfully challenged at first instance in this Court: Sherzad v Minister for Immigration and Citizenship [2008] FCA 460.  In order for the visa applicant to be regarded as the ‘remaining relative’ of the appellant, it was necessary for him to satisfy the Minister (including, in the alternative, the Minister’s delegate) or, on review, the Tribunal, that he had not had contact (within a reasonable period before making the application for the visa) with an overseas near relative.  Each of his mother and two sisters were overseas near relatives.  However, the challenge to the decision of the MRT was based upon the contention that the lack of contact with the sister in Iran, as found by the MRT, was sufficient. 

10                  With respect, the reasoning of the primary judge was stated with admirable succinctness.  After summarising the parties’ submissions, his Honour stated (at [23]-[25]): 

[23]     The proposition that the requirement in reg 1.15(1)(c)(ii) is satisfied, in the case of an applicant who has two or three overseas near relatives, if the applicant has not had any contact with one of them within the relevant period, even if he has had regular contact with the other or others during that period, would, in my view, undermine the whole basis of the ‘remaining relative’ concept for a Subclass 115 visa.  Read in context, that is, read in the context of reg 1.15 as a whole, the basis of the concept is that the visa applicant must not have more than three overseas near relatives – even if he had not had contact with any of them during the relevant period: reg 1.15(1)(d); or if he has three or a lesser number of overseas near relatives, he only satisfies the requirement of reg 1.15(1)(c)(ii) if he has not had contact with any of them within the relevant period.

[24]     In my view, the Tribunal did not fail, constructively or otherwise, to exercise its jurisdiction by failing to ask the correct question.  It did not, for that reason, fall into jurisdictional error and no other ground is relied on.

[25]     The application must be dismissed with costs.

The present appeal

11                  Section 23 of the Acts Interpretation Act 1901 (Cth) (AI Act) provides:

In any Act, unless the contrary intention appears:

(a)        words importing a gender include every other gender; and

(b)       words in the singular number include the plural and words in the plural number include the singular.

12                  The word “words” is apt to include any part of speech, including nouns, pronouns, verbs, and, of relevance in the present case, demonstrative adjectives.  The word “include” does not indicate that one gender or one number is necessarily to apply to the exclusion of the other.  Rather, both possibilities are preserved, absent a contrary intention.  Accordingly, s 23(b) of the AI Act has the effect that unless the contrary intention appears, para (c) of Reg 1.15(1) must be read as follows:

(c)        if the applicant or the applicant’s spouse (if any) has an overseas near relative [or overseas near relatives]:

(i)         the applicant and the applicant’s spouse (if any) usually reside in a country [or countries], not being Australia, that is [or are] different to the country [or countries] in which that relative [or those relatives]resides [or reside]; and

(ii)        neither the applicant nor the applicant’s spouse (if any) have [the word might have been “has”] had contact with that relative [or those relatives] within a reasonable period before making the application; …

The purpose of provisions such as s 23 of the AI Act is to obviate the tiresome wordiness that would otherwise arise, as indicated by our interpolations in the above passage: see Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656.

13                  Counsel for the appellant was not able to point to any appearance of a contrary intention that would displace the operation of s 23(b) of the AI Act.  He was able only to emphasise the singularity of the various terms in para (c), in particular, the demonstrative pronoun “that”.  However, this leads nowhere:  the word “that” is one of the very words on which s 23(b) operates.  It was faintly suggested that s 23(b) operates only on nouns on the basis that the grammatical concept of number applies only to nouns.  This is not so.  Number applies to more parts of speech than nouns.  In para (c) of Reg 1.15(1), s 23(b) of the AI Act operates on the singular nouns “relative” and “country”, the singular verb “is”, and the singular demonstrative adjective “that”. 

14                  A “contrary intention” is not to be found in nothing more than the fact that the words in a provision appear to emphasise singularity as opposed to plurality:  Blue Metal Industries at 656.

15                  Counsel for the appellant argued that the placing of the onus to satisfy the Minister on a visa applicant in reg 1.15(1) marked a change from the earlier form of reg 1.15, and that the making of the change somehow supports a construction according to which it suffices that the visa applicant has one overseas near relative to whom sub-paras (i) and (ii) apply.  The earlier form of reg 1.15 to which he referred contained the following:

1.15(2)     An applicant [for a Remaining Relative visa] is disqualified if:

(a)   the applicant or the spouse (if any) of the applicant:

(i)      usually resides in the same country, not being Australia, as an overseas near relative; or

(ii)      has had contact with an overseas near relative during a reasonable period preceding the application; or …

(3)     In this regulation,

‘overseas near relative’ means a person who is:

(a)   a parent, brother, sister or non-dependant child; or

(b)   a step-parent, step-brother, step-sister or non-dependent step-child;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1).

16                  Under para (a) of subreg 1.15(2) an applicant was disqualified if either one of two conditions was satisfied, namely, that the applicant or the spouse (if any) of the applicant: 

(i)         usually resided in the same country (not being Australia) as an overseas near relative; or

(ii)        had had contact with an overseas near relative during a reasonable period preceding the [visa] application.

It is consistent with that provision that now that the regulation is cast in terms of stating the things of which the visa applicant must satisfy the Minister, the visa applicant must establish the obverses of both of the disqualifications.

17                  While the present regulation imposes an onus on the visa applicant to satisfy the Minister that conditions (a) to (e) of sub-reg 1.15(1) are met, there is no change of substance as between para (a) of the former sub-reg 1.15(2) and para (c) of the present sub-reg 1.15(1).  The alternative disqualifications of the former provision have simply become a dual qualification under the present provision. 

18                  Some support for our construction is found in Elliott v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 67.  In that case, R D Nicholson J approved (at [40]) a statement by the MRT that in order to satisfy sub-reg 1.15(1)(c)(ii), a visa applicant must not have had any contact with an overseas near relative within a reasonable period before making the application.  The overseas near relatives in question were the visa applicant’s mother and half-siblings, and his Honour said (at [38]) that sub-reg 1.15(1)(c)(ii) was to be applied to all or any of them.

19                  Finally, it is not amiss to note certain consequences of the construction relied on by the appellant.  A visa applicant would satisfy para (c) if, for example, his spouse had a step-parent, step-brother or step-sister overseas with whom neither the applicant nor the spouse had had contact within the relevant period before the making of the visa application, even though there were two other overseas near relatives with whom the applicant and his or her spouse had maintained daily contact throughout that period.  As the primary judge observed, such a result would undermine the whole basis of the “remaining relative” concept.

CONCLUSION

20                  In our opinion, for the above reasons the appeal should be dismissed with costs.

Associate:

Dated:         18 August 2008