FEDERAL COURT OF AUSTRALIA

Cole v Minister for Immigration and Border Protection [2018] FCAFC 66

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent pay the appellant’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    Ms Cole appeals from a decision of a judge of the Federal Circuit Court of Australia: Cole v Minister for Immigration & Anor [2017] FCCA 2234. The primary judge held that “incapacity for work” in the Migration Regulations 1994 (Cth) relating to a dependent child could only mean total incapacity, rather than total or substantial incapacity (at [21]-[34]). The result of such a construction was that Ms Cole was ineligible for a visa to stay in Australia with her parents. The appeal is not directed to the factual merits. The first question in this appeal is whether that construction was correct. The second question is whether there was a failure to adopt a “two-stage process” when applying the correct incapacity to work test.

2    For the reasons set out below, we reach a different view from the primary judge as to the meaning of “incapacitated for work”. We also accept Ms Cole’s contention that there was a relevant failure to adopt a two-stage process in application of the test.

BACKGROUND

3    Ms Cole is a British citizen, born on 24 May 1993. She arrived in Australia on 15 February 2013 on a Subclass TZ417 Working Holiday visa, granted on 2 February 2013. On 13 February 2014, Ms Cole applied for a Child (Residence) (Class BT) Subclass 802 visa (Child visa). She was sponsored by her father. At the time of the application, Ms Cole was 20 years old. On 24 October 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the Child visa to Ms Cole as the delegate was not satisfied that Ms Cole had a medical condition that met the definition of being “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions” under reg 1.03(b)(ii) of the definition of “dependent child” in the Migration Regulations.

4    The rejection was based on the finding of the Medical Officer of the Commonwealth that Ms Cole was not incapacitated for work. On 4 November 2014, Ms Cole applied to the Migration Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision.

BEFORE THE TRIBUNAL

5    The Tribunal invited Ms Cole to appear before it on 21 April 2015 to give evidence and present arguments relating to the issues arising in her case. On 14 April 2015, her migration agent provided a written submission to the Tribunal in support of Ms Cole’s claims, together with supporting documents. A week later, Ms Cole appeared, as invited, before the Tribunal to give evidence and present arguments. Additionally, her parents gave evidence. On 19 May 2015, her father provided further information to the Tribunal. Additional documents were also provided on 29 May 2015.

6    On 2 June 2015, the Tribunal affirmed the delegate’s decision not to grant Ms Cole a Child visa.

BEFORE THE FEDERAL CIRCUIT COURT

7    By re-amended application filed 23 March 2016, Ms Cole sought review of the Tribunal’s decision in the Federal Circuit Court. The grounds before the Federal Circuit Court, were:

1.    The Tribunal made a jurisdictional error by misconstruing Regulation 1.03(b)(ii) of the [Migration Regulations] and failing to correctly apply it to [Ms Cole’s] circumstances on 2 June 2015 [particulars were provided].

2.    The Tribunal failed to correctly apply the two-stage process of approaching “incapacity for work” based on the decision handed down by the Federal Court of Australia in Annas v Director-General of Social Security [(1985) 8 FCR 49] which adopted the principles in Re Panke and Director-General of Social Services [1981] AATA 65 [particulars were provided].

3.    The Tribunal made a jurisdictional error by failing to consider whether clause 802.212 of the [Migration Regulations] was satisfied in respect of [Ms Cole’s] application for [a Child visa] [particulars were provided].

8    The Federal Circuit Court, for reasons examined in the analysis which follows, dismissed the re-amended application on 14 September 2017.

IN THIS COURT

9    Ms Cole filed a notice of appeal, essentially repeating the same grounds, but at the hearing Ground 3 was abandoned.

10    On Ground 1 and Ground 2, the Minster relies on the same arguments as advanced before the Federal Circuit Court and relies on the Federal Circuit Court’s process of reasoning. It should be stressed, however, that there were some additional materials before this Court, including the Minister’s Explanatory Statements, upon which Ms Cole relies.

STATUTORY ELEMENTS

11    Relevantly, cl 802.221 of the Migration Regulations, found in Sch 2 of the Migration Regulations, provided at the date of the Tribunal’s decision, and continues to provide as follows:

802.22 – Criteria to be satisfied at time of decision

802.221

(1)    …

(2)    In the case of an applicant who had turned 18 at the time of application:

(a)    the applicant:

(i)    continues to satisfy the criterion in clause 802.212; or

(ii)    does not continue to satisfy that criterion only because the applicant has turned 25; and

(b)    the applicant continues to satisfy the criterion in clause 802.214.

12    Clauses 802.212 and 802.214 of the Migration Regulations in relation to criteria to be satisfied at the time of application provide:

802.212

(1)    The applicant:

(a)    is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

(b)    subject to subclause (2), has not turned 25.

(1A)    ...

(2)    …

…

802.214

(1)    If the applicant has turned 18:

i.    (a)    the applicant:

(i)    is not engaged to be married; and

(ii)    does not have a spouse or de facto partner; and

(iii)     has never had a spouse or de facto partner; and

(b)    the applicant is not engaged in full-time work; and

(c)    subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

(2)    Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

13    The expression “dependent child” is defined in reg 1.03 of the Migration Regulations as:

dependent child, of a person, means the child, or step-child of the person (other

than a child who is engaged to be married or has a spouse or de facto partner),

being a child who:

(a)    has not turned 18; or

(b)    has turned 18 and:

(i)    is dependent on that person; or

(ii)    is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

14    The term “dependent” is also separately defined in reg 1.05A as follows:

1.05A    Dependent

(1)    Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a)    at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii)    the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b)    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

…

GROUNDS OF APPEAL

Ground 1 – whether the Tribunal misconstrued reg 1.03(b)(ii) of the Migration Regulations

15    As noted (at [13]), by reg 1.03(b)(ii) of the Migration Regulations, “dependent child” includes a child who is over 18 years of age and incapacitated for work due to either a total or partial loss of the child’s bodily or mental functions. In the Tribunal, it had been concluded that, after close consideration of the evidence, Ms Cole was not incapacitated for work for the purposes of satisfying the definition in reg 1.03.

16    The Tribunal, in its process of reasoning and in consideration of the relevant evidence, approached the question as follows:

23.    The tribunal has closely considered the evidence but is not satisfied that [Ms Cole] was and is incapacitated for work because of loss of bodily or mental functions. The tribunal accepts the medical evidence that [Ms Cole] has depression and PTSD due to childhood trauma. However, the evidence is clear that [Ms Cole] has had significant periods of employment both prior to and after her arrival in Australia. This evidence does not lend weight to the claim that she is incapacitated for work due to illness. To the contrary it suggests that [Ms Cole] has some capacity to engage in work.

24.    The tribunal accepts that [Ms Cole’s] psychological conditions identified by the medical evidence can impact adversely on the ability of [Ms Cole] to work and may also at times, cause or lead to her being incapacitated temporarily for work. However, the evidence also shows her illness does not cause permanent incapacity for work. This is evidenced from her work from 2010 – 2012 in the UK and her further 6 months of employment in Australia. The tribunal also notes that [Ms Cole] was employed up to 16 April, which was the week prior to the tribunal hearing.

25.    The tribunal considers that the Act requires incapacitation such that a person cannot work. It does not stipulate that a person is incapacitated from full time work and the tribunal does not import this particular meaning. [Ms Cole] has clearly worked part time over 6 months since entering Australia and this evidence does not support her claim to be incapacitated for work. This is so notwithstanding that she had some sick days and ongoing medical issues.

26.    The tribunal note [sic] the opinion of John Perera (20 February 2015) that [Ms Cole] should not work full time until she addresses the psychological concerns and to gradually work part time once she progresses in therapy. Carol Black in her report of 24 August 2014 stated that [Ms Cole] should be able to look for casual employment up to 15 hours per week in the next 6 – 12 months, and subsequently move to increased hours and more permanent options. The 2014 opinion of Carol Black is that [Ms Cole] should, in the context of ongoing employment, be working casually and increasing her work hours and options as of February 2015. The tribunal has considered the opinion of John Perera that [Ms Cole] should not work full time until she progresses in therapy. The tribunal is not satisfied from either opinion that [Ms Cole], at the time of decision, is incapacitated for work. These opinions suggest [Ms Cole] has capacity to work so long as she is progressing in therapy. There is no evidence to the tribunal that [Ms Cole] is not progressing in therapy and the tribunal has no reason based on this evidence to consider that she would not be progressing in her therapy and treatment.

27.    The tribunal also notes a recent letter from Dr Merv Coyle (14/05/15), a medical practitioner who states that [Ms Cole] is incapacitated for work due to her mental condition and will remain so until her mental issues are resolved. Dr Coyle does not state how long he has been treating [Ms Cole] for, although he does state that she was recently seeing John Perera.

28.    The tribunal has considered Dr Coyle’s opinion but is not satisfied on this opinion, in view of the advice of John Perera and Carol Black and [Ms Cole’s] own history of employment in both the UK and Australia (for a significant period of 6 months and including up to the week before the tribunal hearing) that she is incapacitated for work due to loss of mental functions.

(emphasis added)

17    Ms Cole says that the Tribunal misconstrued the Migration Regulations by requiring that incapacitation be such that a person cannot work at all. The Tribunal did not consider whether a capacity to work part time, or a capacity to work part time hours in a causal position, could render Ms Cole a “dependent child”, within the meaning of reg 1.03(b)(ii) of the Migration Regulations, as correctly construed.

18    The Minister contends that the Federal Circuit Court was correct to determine that the Tribunal had not misconstrued reg 1.03(b)(ii). The Minister argues the ordinary use of the phrase would suggest that it refers to a person who is unable to work at all, that is, a person who has no capacity for work. This was the approach taken by the primary judge when his Honour said that “incapacitated” in reg 1.03(b)(ii) meant “totally incapacitated” and, therefore, “totally incapacitated for work”. His Honour said (at [25]-[26]):

25.    A person who is incapacitated is thus one who is to deprived of capacity, or made incapable or unfit, or disqualified, from doing something, in this case, work. There is no doubt that a person can be partly incapacitated, but that important qualification – or one like it – has not been made by the Parliament in the text of reg.1.03(b)(ii) of the Migration Regulations. On its face “incapacitated” in reg.1.03(b)(ii) of the Migration Regulations means totally incapacitated, and therefore totally “incapacitated for work”. The text, or plain meaning, of the phrase “incapacitated for work” does not accord with Ms Cole’s suggested construction of reg.1.03(b)(ii) of the Migration Regulations.

26.    The context in which the word “incapacitated” in the phrase “incapacitated for work” appears also does not lend itself to the construction suggested by Ms Cole. That is because the Parliament has not qualified “incapacitated” in any way, but by way of significant contradistinction goes on to immediately qualify the “loss of … bodily or mental functions” of the child as either “total or partial”. This shows that the Parliament considered the degree to which those functions might be lost, and included a “partial” loss of the relevant function. That it did not do the same with respect to the degree to which the child is “incapacitated” suggests that the Parliament did not intend that “incapacitated” should be qualified by degrees of incapacity, but rather that the child concerned had to be totally incapacitated in order to meet the criteria for being a dependent child (and hence the criteria for the Child Residence Visa) under reg.1.03(b)(ii) of the Migration Regulations.

(emphasis added)

19    The Minister submits that the observations (at [26]) of the primary judge’s reasons are correct, that is, that the juxtaposition of the descriptors shows that Parliament did not intend that “incapacitated” should be qualified by degrees of incapacity, but rather, that the child had to be totally incapacitated for work in order to meet the criteria in reg 1.03(b)(ii) of the Migration Regulations.

20    The Minister also adopts the primary judge’s reasoning (at [27]-[29]), where his Honour said:

27.    Ms Cole’s suggestion that the meaning of “dependent child” in reg.1.03(b)(ii) of the Migration Regulations imports the definition of “dependent” in reg.1.05A of the Migration Regulations is, in part, correct. It is true to say that the concept of being a “dependent child” as defined in reg.1.05A of the Migration Regulations is imported into reg.1.03 of the Migration Regulations, but only in a limited way, and not so as to impact upon a “dependent child” who is “incapacitated for work”. That is because reg.1.03 of the Migration Regulations sets up three different categories of dependent child, namely a child who has:

a)    firstly, not yet turned 18: Migration Regulations, reg.1.03(a);

b)    secondly, turned 18 and is “dependent” on the person of whom they are a “child”: Migration Regulations, reg.1.03(b)(i); and

c)    thirdly, turned 18, and is “incapacitated for work”: Migration Regulations, reg.1.03(b)(ii).

Although not articulated in the manner set up above, the three different categories are implicit in the observations of a majority of the Full Court of the Federal Court in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122; (2006) 152 FCR 576 (“Huynh”) at [27] and [31] per Lander and Rares JJ.

28.    Each of the above categories is discrete because of the use of the disjunctive “or” between paragraphs (a) and (b) of reg.1.03 of the Migration Regulations, and also between placitas (i) and (ii) of paragraph (b) of reg.1.03 of the Migration Regulations: Re Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 241 IR 472; (2014) 285 FLR 416 at [13] per Judge Lucev.

29.    The bifurcated definition of “dependent child” for children who have turned 18 as set out in reg.1.03(b) of the Migration Regulations imports different requirements in respect of the two different categories of “dependent child” over the age of 18. That part of the definition of “dependent child” which appears in reg.1.03(b)(i) of the Migration Regulations demonstrates why it is that the definition of “dependent” is not imported into reg.1.03 of the Migration Regulations as a whole. That is because the Parliament has specifically seen the need to define “dependent child” in the second category by specifically relying upon the child being a “dependent”, which can only be a dependent as defined in reg.1.05A of the Migration Regulations: Huynh at [31] per Lander and Rares JJ, and from which it can be implied that the Parliament did not intend to otherwise import the definition of “dependent” into the phrase “dependent child” generally, or for the purposes of the other two categories of “dependent child” established by reg.1.03 of the Migration Regulations under reg.1.03(a) and (b)(ii) of the Migration Regulations.

(emphasis added)

21    The Minister supports the primary judge’s conclusion (at [30]-[31]) that the nature of the categories or differing definitions of dependent child, within reg 1.03 of the Migration Regulations, supports the context of reg 1.03 requiring that a child who is “incapacitated for work” be totally incapacitated, not partially incapacitated, and that both the text and context of the word “incapacitated” and the phrase “incapacitated for work” in reg 1.03(b)(ii) support the view that what is meant is “total” and not “partial” incapacitation. Those conclusions, the Minster argues, are correct and do not reveal any appellable error. Nor, the Minster argues, is there any appellable error in his Honour’s conclusion (at [32]) that there is nothing in the definition of “dependent child” derogating from the purpose of that definition of assisting in determining who satisfies the criteria for the grant of various kinds of visa, including a Child visa. This is said to be consistent with the purposes of the Migration Act 1958 (Cth).

22    The approach taken by the primary judge, the Minister says, of addressing the text, context and purpose accords with authority and there is no need for the Court to look to the predecessor of reg 1.03 of the Migration Regulations. Nonetheless, the comparator was in a different form and a form which would have supported the contentions made by Ms Cole, referring, as it did, to a person “wholly or substantially incapacitated”. The Minister says there is no appellable error demonstrated by the failure to refer to the historical predecessors.

Consideration – Ground 1

23    In our view, there are difficulties with the approach, which commended itself to the primary judge. However, it must be noted again that not all the materials upon which we rely were before the primary judge.

24    It is not the case that the word “incapacitated”, whether for work or otherwise, always means totally incapacitated. If it did, the expression “partially incapacitated”, “or 50% incapacitated”, would be a contradiction in terms. “Incapacitated for work” is quite capable of meaning substantially incapacitated, that is to say, that the incapacity is sufficient to significantly impinge on the ability to perform paid work.

25    Counsel for the Minister was not prepared to concede that “work” where used in the regulation, must mean “paid” work, but in our view, this must be so. Otherwise, the regulation would preclude consideration of a person who was so incapacitated that he or she could only perform a few hours of voluntary work per week. It can further be noted that construing “work” as encompassing “voluntary” work is also somewhat at odds with a regime concerning the dependence of a person and where a “dependent” person is explicitly defined in the regulations, specifically reg 1.05A, to focus on a person's need for “financial support”. This would be a surprising outcome.

26    Therefore, on the face of it, considering the text alone, we consider that “incapacitated for work” does not mean exclusively wholly incapacitated, but may extend to substantially incapacitated for work. It would not be appropriate to extend it to trivially or only minimally incapacitated for work because there would not be significant impairment of income earning ability.

27    Looking to the context, the question is whether someone is precluded by reason of capacity from being able to derive sufficient income from work, such that the person does not require financial support. That clearly can arise when the capacity which precludes the ability to derive income, is a substantial incapacity, just as much as it can for a total incapacity.

28    Having regard to the purpose of the Migration Regulations, which is, essentially, to determine whether, by reason of those factors, there is a dependency by the child on parents, which may warrant granting a visa, a construction which includes substantial incapacity, is consistent with the purpose of the legislation. The purpose would appear to be a beneficial purpose. The statutory construction should also be construed beneficially.

29    On the meaning of “substantial”, we would agree with the observations as to the general approach contained in Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 per Branson and Hely JJ (at [10], [11] and [14]):

10.    Scott’s case [Commissioner for Superannuation v Scott (1987) 13 FCR 404] establishes that “substantially” where used in the phrase “wholly or substantially dependent” is appropriately paraphrased by the words “in the main”, or “as to the greater part”: Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, per Hill J. In Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418, 422 the Full Court held that the phrase “the whole, or substantially the whole, of the money paid for the purchase” in s 116(3) of the Bankruptcy Act 1966 would be satisfied where “nearly all of” the money used in payment comes from protected funds, but it is not sufficient for a significant part of the purchase price (in that case almost half) to come from protected funds.

11.    Thus Scott’s case, and cases which have followed it, treat “substantially” in the phrase “wholly or substantially dependent” as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is “primarily, essentially or in the main” dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of “essentially”.

…

14.    The issue of substantial dependency is to be determined at the time of decision, but the enquiry is as to the state of affairs subsisting at that point in time which may involve consideration of earlier events, and of future probabilities. In Aafjes v Kearney (1976) 50 ALJR 454, 458 Gibbs J said that the question of whether there is dependence at a particular date is not to be answered by looking only to the circumstances as they existed at that date; past events and future probabilities have to be considered.

Ground 1 - extrinsic materials

30    As a separate consideration, in our view, it may be appropriate to consider extrinsic materials. By way of short summary, all previous versions of the statutory regime included the expression “substantial incapacity” and all references to the incapacity in this, and relevantly similar regulations in the Explanatory Statements provided by the Minister, included reference to “substantial incapacity”. In contrast, the Court was taken to no extrinsic materials which suggests a deliberate decision on the part of Parliament to preclude substantial incapacity and to rely only on total incapacity. In those circumstances, is it permissible to look to the history of the legislation and the extrinsic materials?

31    Section 15AB of the Acts Interpretation Act 1901 (Cth) provides:

15AB    Use of extrinsic material in the interpretation of an Act

(1)    Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)    to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)    to determine the meaning of the provision when:

(i)    the provision is ambiguous or obscure; or

(ii)    the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

(2)    Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

(a)    all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

(b)    any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;

(c)    any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;

(d)    any treaty or other international agreement that is referred to in the Act;

(e)    any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f)    the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

(g)    any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and

(h)    any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

(3)    In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a)    the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b)    the need to avoid prolonging legal or other proceedings without compensating advantage.

32    Section 15AB of the Acts Interpretation Act does not apply directly to the Migration Regulations as a piece of delegated legislation. However, by operation of s 13(1)(a) of the Legislation Act 2003 (Cth) (previously the Legislative Instruments Act 2003 (Cth)), the principles outlined in s 15AB apply as if the Migration Regulations were an Act and specifically as if reg 1.03 were the provision of an Act.

33    The High Court drew attention to a substantial limitation on the use of s 15AB of the Acts Interpretation Act and Territorial equivalents in Re Bolton; Ex parte Beane (1987) 162 CLR 514, where Mason CJ, Wilson and Dawson JJ said (at 518):

The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.

34    Their Honours continued (at 520):

In our opinion, notwithstanding the expressed intention of the government in introducing the law into the Parliament - an aspect of the matter which, as we have said, must give the Court cause for earnest consideration - we would not be justified in reading an implication carrying such serious consequences for the liberty of the individual into s. 21(1) of the Act. The decision in Peterson must stand, with the result that Mr. Beane is entitled to be released.

35    In this case, the Minister argues that there may be circumstances where there was an intention to include certain words in a statute, but this intention did not come to fruition in the final product. In those circumstances, it is argued that, consistent with Re Bolton, one must deal with the final product, not some stated, but unachieved intention.

36    In this instance there is no need to add additional words before “incapacity for work” having regard to text, context and purpose. However, if that is not so, the argument itself indicates there is sufficient ambiguity to warrant consideration of extrinsic materials.

37    In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408), Brennan CJ, Dawson, Toohey and Gummow JJ said:

… Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

(citations omitted)

…

38    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed (at [47]):

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(citations omitted)

39    In Alcan (at [4]-[5]), French CJ said:

4.    The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill as: “dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.

5.    The provisions of the Interpretation Act (NT) as they stood at the time of the relevant transactions have to be taken into account. Section 62A of the Interpretation Act (NT) requires a construction promoting the purpose or object underlying the statute to be preferred to a construction that does not do so. Section 62B authorises recourse to extrinsic materials in the interpretation of statutes. The Interpretation Act (NT) has no equivalent of s 15AB(3) of the Acts Interpretation Act 1901 (Cth) (the Commonwealth Interpretation Act), which requires regard to be had to “the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Despite the lack of such a provision in the Interpretation Act (NT), the established common law approach, which begins with the ordinary grammatical meaning of the text having regard to context and purpose, applies to like effect. The Court of Appeal in this case construed the Act by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes which paid insufficient regard to the clear words of the Act.

(citations omitted)

40    In Wilson v State Rail Authority (NSW) (2010) 78 NSWLR 704, Allsop P (with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed) said (at [12]):

I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem 72 NSWLR 380 at 384 [12]-[16] (Spigelman CJ), 398 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.

(see original for supporting citations)

41    More recently, in Byrnes v Kendle (2011) 243 CLR 253 (at [97]), Heydon and Crennan JJ said:

Statutory construction. These approaches to constitutional construction are matched by approaches to statutory construction. That is not surprising, given that the Constitution is contained in an Imperial statute. Soon after the Constitution came into force, O'Connor J correctly propounded a theory of statutory construction which stressed the irrelevance of the subjective intention of legislators. The construction of the statute depended on its intention, but only in the sense of the intention to be gathered from the statutory words in the light of surrounding circumstances. Even if it were possible to establish the actual mental states of those drafting and voting for a Bill, the inquiry would be irrelevant. The correct approach is also seen in an extra-curial pronouncement by Mr Justice Holmes, only five years before O'Connor J: “we do not deal differently with a statute from our way of dealing with a contract. We do not inquire what the legislature meant; we ask only what the statute means”. In the words of the Seventh Circuit of the United States Court of Appeals: “Congress did not enact its members' beliefs; it enacted a text”. Similarly, Lord Hoffmann described statutory construction as “the ascertainment of what … Parliament would reasonably be understood to have meant by using the actual language of the statute”. However, in recent times in England and in New Zealand, through similar common law developments, and in Australia by statute, extrinsic materials have been routinely examined to ascertain what the legislature meant. It is but one of several objections to that usually unprofitable course that it does not comply with Fried's approach.

(citations omitted)

42    The High Court has pointed to the difference between the concepts of statutory purpose and legislative intention. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [43]-[44]):

43.    The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. An example of a canon of construction directed to that objective and given in Project Blue Sky is “the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities”. That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. As this Court said recently in Zheng v Cai:

“It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy.”

44.    The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

43    It is permissible to have regard to the legislative history and the explanatory statements in relation to the legislative objective. This process has been permitted, even in circumstances where a provision is “clear on its face”: Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 (at 250) per Wilcox J and the Full Court of this Court in Gardner Smith Pty Ltd v Collector of Customs, Victoria (1986) 66 ALR 377, where the Full Court said (at 383-384):

The argument that the Tribunal was in error in giving consideration to the Explanatory Notes was based on the applicant's contention that the words "or otherwise modified" in item 15.08 were not ambiguous or obscure nor, if given their ordinary meaning, would it lead to a result that was manifestly absurd or unreasonable. But it is plain that, to limit the use of extrinsic material to such circumstances – circumstances obviously referable to para 1(b) of s 15AB of the Acts Interpretation Act 1901 - is to deprive para 1(a) of that section of any operation. Even if it could properly be said that the Tribunal was in error in regarding the meaning of "modified" in item 15.08 as obscure - a proposition which it is difficult to accept having regard to the arguments presented - it would not follow that the Court should intervene. It would, as we think, have been open to the Tribunal to consider the explanatory notes in order to confirm the meaning which, on the other material available to it, it considered the expression bore having regard to its context in the Tariff Act.

44    It is true that in Huynh v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 576, Lander and Rares JJ said (at [21]), in relation to reg 1.05A(1) of the Migration Regulations:

The starting point for construing the current form of the Regulations must be their words. The process of reasoning adopted by the tribunal and the federal magistrate was fundamentally erroneous in that it sought to construe the current wording by reference to repealed wording which had not been repeated verbatim. It is the text of the legislation or statutory instrument the subject of consideration in each case which requires to be construed according to its terms. As McHugh, Gummow and Heydon JJ said in McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40] (Gleeson CJ and Hayne J agreeing):

It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (see Ogden Industries Pty Ltd v Lucas; [1970] AC 113 at 127 [(1968) 118 CLR 32 at 38-39], Brennan v Comcare (1994) 50 FCR 555 at 572.

45    After referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, their Honours also said in Huynh (at [23]):

Later in Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 the Court said (at [34]-[35]):

In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.

46    The primary material to which we refer, and which was not before the primary judge, is the Explanatory Statement to the Migration Amendment Regulations 1999 (No 13) 1999 No. 259, in which it was explained that the purpose of those Regulations was to amend the Migration Regulations to “create a revised and simplified structure of the Family stream of visa classes” in which, amongst other things, there was an amendment to the definition of “dependent” to apply to all circumstances.

47    When one goes to item 2103 of the Explanatory Memorandum, dealing with the definition of “dependent child”, apart from inserting a reference to a stepchild and removing a reference to s 4(1) of the Disability Discrimination Act 1992 (Cth), the Explanatory Statement indicates that there has been a removal of the requirement that a child under 18 must be wholly or substantially in the daily care and control of another person to be a dependent child.

48    At item 2307, there is a statement that new subclause 101.213(2) provides for an exception to the full-time study requirement. The full-time study requirement does not apply to an applicant who, at the time of making an application, is a “dependent child” “because he or she is wholly or substantially incapacitated for work because of a total or partial loss of bodily or mental functions” (emphasis added).

49    Similarly, item 2348 of the Explanatory Statement also refers to the definition of “dependent child”, indicating that the dependency is “because the child is wholly or substantially incapacitated for work because of total or partial loss of bodily or mental functions” (emphasis added): see also at item 2349, which repeats this statement.

50    It would follow that in reg 1.03 the purpose of the regulation is to use “incapacitated” in its normal sense of wholly or substantially incapacitated for work. This definition arises, not only from the definition of dependent child in the presently considered Child visa, but also by another subclass, Subclass 801.

51    The Explanatory Statement has repeated the expression, which appeared in previous regulations and legislation in circumstances where there has been no indication or statement of a legislative intent to limit the broader meaning of incapacitated from wholly or substantially incapacitated simply to wholly incapacitated. There can be little doubt from the Explanatory Statement that the purpose of the regulation is to include, within the definition of “dependent child”, children who are substantially incapacitated for work.

52    The primary judge suggested that as the concept of the loss of bodily or mental functions, was qualified with the words “total or partial”, which would suggest that no such qualification was intended for incapacity. It may be in the absence of the clear statements in the Explanatory Statement that something might be drawn from this language, but it is clear that the words “total or partial” come from s 4(1) of the Disability Discrimination Act, which, as noted at [47], was previously directly referenced in the Migration Regulations, and those words are included simply to describe the nature of the impairment. There is no reason to conclude that, because there is no “total” or “partial” before the words incapacity, that it could only mean total incapacity for work.

53    The references in the Explanatory Statement support the natural reading of the purpose of the provisions under consideration.

54    To adopt the Minister’s interpretation would mean that a child with illness, who is unable to work at all and is, therefore, dependent on her parents for the necessities of life would meet the dependent child definition, that is, someone who is completely incapacitated, would meet the definition, but another child with the same condition, who has only a small working capacity of, say, ten hours per week, but cannot earn sufficient funds for rent, food, clothing etc. and is equally dependent on his or her parents, would not qualify for a visa. That would be a surprising conclusion, having regard to the purpose discussed in the Explanatory Statement and evident on the face of the legislation.

55    The interpretation advanced by Ms Cole is one that accords with a practical and commonsense construction, whereas the competing interpretation does not.

56    In our view, Ground 1 of appeal should succeed.

57    We turn to the Ground 2 of appeal.

Ground 2 – whether the Tribunal failed to correctly apply a “two-stage process” of approaching incapacity for work

58    While on one view our disposition of Ground 1 makes it unnecessary to deal with Ground 2, we consider that the question raised by Ground 2 is sufficiently distinct from Ground 1 and important in the administration of the Migration Act for us also to deal with it.

59    In short, the appellant contends that the Tribunal failed to adopt the two-stage process to the assessment of incapacity for work under reg 1.03(b)(ii) of the Migration Regulations laid down in Re Panke and Director-General of Social Services (1981) 4 ALD 179, as approved in Annas v Director-General of Social Security (1985) 8 FCR 49.

60    In Annas, the Full Court (Northrop, Morling and Wilcox JJ) said (at 53-54):

Panke should be regarded as reflecting a correct understanding of ss 23 and 24 of the [Social Security] Act and of the appropriate process of assessing the degree of incapacity for work. Of course, like any other decision, it must be read in the light of its own facts. There may be cases in which the incapacity is so overwhelming, or so minimal, as to make the two stage process of evaluation unnecessary. But in relation to the many cases, like Panke and like the present case, where the disability is significant — in relation to work capacity — but not totally destructive of any prospect of employment, the approach suggested in that decision ought to be applied.

61    In Panke (a decision of the Administrative Appeals Tribunal constituted by Davies J as President, Mr Hall and Dr Glick), Senior Member Hall and Member Glick considered (at [66]), that the assessment of the degree of incapacity for work involved two quite distinct steps: first, an evaluation in purely medical terms of the person’s physical or mental impairment; and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person’s ability to engage in paid work.

62    These members emphasised that it was not enough for the purposes of s 23 of the Social Security Act 1947 (Cth) to have regard in an abstract sense simply to “jobs that exist as jobs” in the community (at [52]). They considered that the Social Security Act, by referring to capacity for work, was concerned with the capacity to undertake paid work that is suitable to be undertaken by a person. They added that it is only after a fair assessment of the extent of the person’s physical or mental impairment and the impact which that impairment is likely to have upon their capacity to undertake suitable paid work that a proper assessment of the degree of incapacity could be made.

63    The President, Davies J, agreed with those members that the phrase “incapacitated for work”:

denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning.

…

[A]n ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person.

64    In the Federal Circuit Court, in this case, the primary judge considered that the appellant’s reliance on Annas and Panke was misplaced because the suggested two-stage process related to the administration of the Social Security Act which, by s 23, required a proper assessment of the “degree” of incapacity. The primary judge considered that the two-stage process was not applicable when determining whether a person is incapacitated for work under reg 1.03(b)(ii) of the Migration Regulations.

65    In light of our consideration of Ground 1, to the effect that incapacity for work includes a substantial incapacity for work, the reasoning of the primary judge cannot be considered correct on the basis advanced.

66    Broadly speaking, there is no room for doubt that whether or not a person, under the Migration Regulations, is incapacitated for work involves a consideration of whether they are incapacitated for “paid work”. Decisions such as Annas and Panke are directly relevant in this regard. Thus, it is not open to contend that a person has a capacity for “work” simply by referring to their capacity, for example, to tend to their garden or to undertake voluntary, unpaid work. The question is, as posed in Annas and Panke, whether there is paid work which the person in question has the capacity to perform, taking into account their disabilities.

67    It logically follows, in order to determine whether the statutory test for incapacity for work is satisfied in this case, that the decision-maker should, first, plainly identify what the disabilities of the relevant person are and, in light of that finding (based on medical and related evidence), determine whether there is paid work that the person, with such disabilities, has the capacity to perform.

68    The two-stage process therefore is relevant and the primary judge erred in finding otherwise.

69    We should add, however, that a decision-maker such as the Tribunal will not inevitably err by failing formally to adopt a two-stage process of analysis, although ordinarily that is the course that should be adopted. As observed in Annas (at 53), there may be cases where the findings of capacity, based on evidence before the decision-maker, are obvious and the two-stage process does not need actively to be engaged in.

70    In this case, the question of determining whether the appellant was substantially incapacitated for work was not considered at all by the Tribunal because it found that an incapacity for work, for the purposes of the regulation, was a total incapacity for work. In light of our findings, the relevant test will need to be applied by the Tribunal and the two-stage process utilised.

71    In these circumstances, we would uphold Ground 2.

Associate:

Dated:    1 May 2018