FEDERAL COURT OF AUSTRALIA

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087

MIGRATION – Visa application – Change in Circumstance (Residence) visa – Applicant needed to show she is “not a member and does not reside with, the family unit with which she first entered Australia” – Whether addition of a member to a family unit leads to there being a different family unit – Whether Migration Review Tribunal failed to give the applicant an opportunity to comment on information received by it – Whether a comment on legal position was “information” – Whether Tribunal failed to give applicant access to “written material” given or produced to Tribunal – Whether comment on legal position was “material”.

Migration Act  1958 ss 359A, 362A.

Migration Regulations reg 1.12, Schedule 2 cl 833.22

MARGAUX CARLOS, ROGELIO CARLOS, MYRNA CARLOS, BIANCA CARLOS, PAOLO CARLOS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 269 of 2001

WILCOX, VON DOUSSA and FINKELSTEIN JJ

9 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs incurred by the respondent in connection with 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                     We have had the benefit of receiving, and considering in advance of the hearing, comprehensive written submissions made on behalf of the appellants.  Those submissions have been further developed in oral argument.  In consequence of this, we are in a position to give judgment without further delay.

2                     The facts of the matter are comprehensively stated in the judgment of Merkel J.  There is no need for us to repeat that account.  We can go immediately to the issues raised by the appellants.

The substantive point

3                     It seems to us there is no merit in the appellants’ argument that the Migration Review Tribunal fell into jurisdictional error, as discussed in Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1.  The Tribunal did not identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material.

4                     The critical issue before the Tribunal was one of fact: whether Margaux Carlos, the first appellant, then satisfied cl 833.221 of Schedule 2 of the Migration Regulations.  That clause read:

“The applicant is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia.”

5                     The concept of membership of a family unit is explained by reg 1.12 which relevantly reads:

“(1)     … a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

(a)               a spouse of the family head; or

(b)               a dependent child of the family head or of a spouse of the family head; or

(c)                a dependent child of a dependent child of the family head or of a spouse of the family head; or

(d)               a relative of the family head or of a spouse of the family head who:

(i)                 does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and

(ii)               is usually resident in the family head’s household; and

(iii)             is dependent on the family head; or

(e)                a relative of the family head or of a spouse of the family head who:

(i)                 has never married or is widowed, divorced or separated; and

(ii)               is usually resident in the family head’s household; and

(iii)             is dependent on the family head.”

6                     It will be seen this definition contemplates a variety of circumstances in which a person may be a member of the family unit of another person.  Obviously the concept of “family unit” is fluid.  It will always be a question of fact, and sometimes of degree, whether a person falls within reg 1.12.

7                     The Tribunal found Margaux was born on 13 January 1982 and arrived in Australia, aged 8 years, on 6 April 1990.  She was accompanied by her mother, Myrna Carlos, the third appellant, and younger sister, Bianca, the fourth appellant.  Her father, Rogelio Carlos, the second appellant, was already in Australia, having arrived in 1987.  Since the reunion of the family in Australia, another child, Paolo, the fifth appellant, has been born.

8                     At para 20 of its reasons for decision, the Tribunal set out the following findings of fact:

“The Tribunal accepts that the primary visa applicant and her siblings are the natural children of their parents and that their parents are each other’s spouse.  The Tribunal accepts also that the children of the family, including the primary visa applicant, usually reside in the family home and have been (and remain) wholly or substantially reliant upon their parents for financial support.  As the primary visa applicant’s sister and brother have not turned 18, the Tribunal finds that each satisfies the definition of a dependent child.  The Tribunal finds that the primary visa applicant is also a dependent child as, being over 18 years of age, she is, and has been for a substantial period, wholly or substantially reliant on her parents for financial support to meet her basic needs for food, shelter and clothing, and her reliance on her parents in that regard is greater than her reliance on any other person or source of support.  Consequently the Tribunal finds that the primary visa applicant, her siblings and her parents are members of the family unit and that her parents, or either of them, is the family head.”

9                     There was a question before the Tribunal as to the composition of the “family unit” with which Margaux entered Australia.  A migration agent acting for the visa applicants contended the family unit comprised only Margaux, her mother and Bianca, and that this was not the same family unit as that with which she now resides, owing to the addition to the original family unit of her father and brother.  Apparently the argument was that the family unit with which Margaux entered Australia was headed by the mother, whereas the family unit with whom she now resided was headed by the father.  Although both the father and mother gave evidence to the Tribunal, and they were assisted by a legally-qualified migration agent, it was not suggested to the Tribunal that there had been a breakdown in the marriage between 1987 and 1990, or indeed any difficulty in the marriage at all.  The only suggestion (which was true) was that husband and wife were geographically separated during this time.

10                  The Tribunal thought the argument put by the migration agent overlooked the fact that more than one member of a family unit may be the head, for the purposes of reg 1.2 of the Migration Regulations.  The Tribunal said:

“23.     …For example, either a mother or a father may be considered to be the family head.  Thus the fact that the primary visa applicant did not arrive in Australia with her father, but arrived subsequently with her mother, does not mean that the primary visa applicant is not a member of her father’s family unit.  This is so whether her father or mother is regarded as the family head.

24.       The agent’s argument also overlooks the fact that the members of family unit can be geographically separated.  There is no requirement in regulation 1.12 that members of a family unit be co-located.  Thus, when the primary visa applicant, her mother and sister were in the Philippines and her father was in Australia, as well as when all family members were in Australia, there has only been one family unit at all material times.  The family unit did not change simply because its members were reunited.

25.       The Tribunal notes that this interpretation is consistent with the policy that underpins subclass 833, in that it is a concession to certain unlawful non-citizens who became unlawful as minors (through no ‘illegality’ on their own part but rather on the part of their parents or guardians) to enable them to regularise their migration status once they are adults, independent from their parents or guardians, through whom they acquired their illegal status.  It would be inconsistent with this policy objective to grant a visa to an applicant who is still dependent on persons who have become illegal.  In order to cease being a member of her family unit, the primary visa applicant must cease being dependent on the family head(s).  She must also cease residing with the family unit in order to satisfy clause 833.221.”

11                  At the hearing before Merkel J, it was argued the Tribunal erred in proceeding on the basis that the separation between Margaux’s parents, between 1987 and 1990, was merely geographic.  An attempt was made to adduce evidence of a breakdown in the marriage, of what was called an “emotional”, as well as geographic, separation.  A question was raised as to whether each of the parents was the “spouse” of the other, within the definition of that term in reg 1.15A of the Regulations.  Argument on that question was taken much further in the submissions made to us.

12                  Merkel J thought there was no error of law in the Tribunal’s conclusion that, at the time of its decision, Margaux was a member of, and resided with, the family unit with which she entered Australia.  His Honour said, at paras 47 to 49 of his reasons:

“          The use of the concept of a ‘family unit’ in cl 833.221 and the definition of membership of a family unit in reg 1.12(1) is an endeavour to deal with the difficulty in defining a family for the purposes of subclass 833.  Depending on context, a family can include parents and their children, whether dwelling together or not; any group of person closely related by blood; or those persons descended from a common progenitor.  Although the drafting of cl 833.221 confines the categories of persons who are capable of being members of a family unit, a decision maker is nonetheless required to determine the relevant family unit for the purpose of the subclass on the facts of a particular case.

            The construction of subclass 833 should seek to give effect to, rather than frustrate, the purpose for which the subclass concession was created: see generally Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 394-397.  The concession was created to enable the regularisation of the migration status of minors who became unlawful non-citizens, have since become adults, and now live independently of the family group with whom they came to Australia.  In that context the relevant family unit is the family group, in a sociological sense, to which the applicant belonged and with whom the applicant first entered Australia.  The sociological family group to which Margaux belonged and with which she first entered Australia was the group that included her mother, herself and her sister.

            At the time of the MRT hearing Margaux was a member of the same family group as she was still residing with her mother and her sister.  It therefore could not be said that she was no longer a member of, and does not reside with, the family group or unit with which she first entered Australia.  Even if Margaux’s biological father had separated from her mother, it does not follow that Margaux’s family group would exclude her father.  In any event, the fact that Margaux also resided with her father and her brother (who was subsequently born into the family) did not have the effect of altering the characterisation of the family group with which Margaux first entered Australia.  Thus, the MRT was correct in concluding that Margaux remained a member of and resided with the family with which she first entered Australia.”

13                  We agree with these observations.

14                  Upon the facts found by the Tribunal, it is impossible to conclude otherwise than that, at the time of the Tribunal’s decision, Margaux continued to be a member of, and reside with, the family unit with which she entered Australia.

15                  It seems to us beyond question that persons may be members of one family unit despite a geographic separation.  Accordingly, if (as the Tribunal found) the relevant family unit comprised the father, as well as the mother, Margaux and Bianca, between 1987 and 1990, the position at the time of the Tribunal decision was that Margaux continued to be a member of, and reside with, the same family unit; the only difference being the addition to it of Paolo.

16                  Moreover, on this scenario, it matters not whether the father or the mother is seen as the family head.  Regulation 1.12 says that a person is a member of the family unit of another person (the family head) if (inter alia) the first person is “a dependent child of the family head or of a spouse of the family head”.  If a spousal relationship existed between Margaux’s parents at the time she came to Australia, and if she was dependent on either of them, then she was dependent on either the family head or the spouse of the family head.  The same comment may be made about the situation that obtained at the time of the Tribunal’s decision.

17                  If one takes the view, contrary to that of the Tribunal, that the relevant “family unit”, at the time Margaux entered Australia, comprised only herself, Bianca and her mother - not her father – it is clear, on the Tribunal’s findings, that she continued at the time of the Tribunal’s decision to be a member of, and reside with, that family unit; with the addition to it of her father, as well as Paolo.  Moreover, if she was dependent on either of her parents, she was dependent on either the family head or the spouse of the family head.

18                  Inherent in the appellants’ argument is the proposition that a different “family unit”, within the meaning of reg 1.12, comes into existence whenever there is an addition to the membership of the family unit.  We see no warrant for that approach.  It is contrary to ordinary concepts; the Jones family next door remains the Jones family despite the birth of a new baby.  And, as Merkel J pointed out, it would tend to frustrate, rather than facilitate, the policy underlying clause 833.221.

19                  In our opinion it was not necessary for the Tribunal to undertake an inquiry into the relationship between Margaux’s parents at the date she entered Australia.  This was not raised as an issue for determination.  There was no suggestion otherwise than that the marital relationship persisted throughout the period of geographic separation.  The evidence sought to be adduced before Merkel J does not go far enough to establish the contrary.  In any event, it seems to us that, upon any view of that matter, it is clear Margaux could not satisfy the critical requirement of clause 833.221 of the Regulations.  The Tribunal fell into no error of law or jurisdictional error.

Section 359A

20                  It was argued before Merkel J that the Tribunal committed two procedural errors, being failures to comply with ss 359A and 362A of the Migration Act.  Merkel J upheld the appellants’ case in relation to s 359A, but not s 362A.  In our opinion neither section was contravened. 

21                  The relevant part of s 359A provides:

“(1)     … the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)               ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

(2)               …

(3)               …

(4)               This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)                …”

22                  It was suggested to Merkel J that the obligation imposed by s 359A(1)(a) was triggered, in the present case, by the circumstance that the Tribunal member who decided the application for review sought advice from colleagues in the Tribunal about the proper interpretation of clause 833.221 of the Regulations and received a reply from a person called “Andrew”.  It appears the request for information contained a draft of the evidence.

23                  The request for advice referred to the argument put to the Tribunal by the migration agent about the concept of “family unit”, and especially the effect of geographic separation of the father from the mother and two children.  The reply commented on this.  It included the following passage:

“The agent’s argument also overlooks the fact that the members of [a] family unit can be geographically separated.  There is no requirement in reg 1.12 that members of a family unit be collocated.  Thus at all material times, when the applicant and her mother in the Philippines and her father in Australia, as well as when all parties were in Australia, there has only been one family unit in question.  The family unit did not change simply because its members were united.”

24                  Merkel J summarised the appellant’s argument on the s 359A point, at para 18 of his reasons, in this way:

“The applicants contend that the statement in emphasis in Andrew’s memorandum to the effect that Margaux, her parents and her sister were and remained members of the same family unit as they were only separated geographically constituted ‘information’ that falls within s 359A(1) of the Act.  It is said that that information is specifically about Margaux and her family and was not given by them to the MRT.  The latter point appears to be correct as the information given by the applicants stated that Rogelio had been separated from the rest of the family for three years and thus was not part of it, but did not state that the separation was only geographical.  In fact, so it is said, at the relevant time Myrna and Rogelio were separated in a marital as well as geographical sense, prior to Myrna’s arrival in Australia with her two children.”

25                  Merkel J dealt with this argument, at para 22, by saying:

“The assertion that Rogelio and Myrna’s separation was only geographic and that the family was therefore a single family unit at the time of, and since, Margaux’s arrival in Australia constitutes a communication of a fact or circumstance that was adverse to the case of the applicants and was treated by the MRT at [24] of its decision as a part of its reasons for affirming the decision of the delegate of the Minister.  Although it appears that Andrew has inferred the relevant fact or circumstance from the information he was given by the MRT member, the fact or circumstance nevertheless constituted information adverse to the applicants that was specifically about them and was additional to the facts provided by them.  Further, it was information that the applicants could have addressed and dealt with had they been made aware of the MRT’s view of its relevance.”

26                  We have difficulty with these conclusions.  Andrew provided no new information to the Tribunal member.  He merely offered views about the proper interpretation of cl 833.221, and its application to this case, based on the facts set out in the Tribunal member’s own communication.  What he did was akin to what is done by a lawyer, who recites his or her instructions as to the facts of a case and then comments upon the resultant legal situation.

27                  Paragraph 24 of the Tribunal’s reasons, mentioned by Merkel J, is part of the passage from the Tribunal’s reasons quoted in para 10 above.  That paragraph adopts, almost verbatim, the portion of Andrew’s memorandum that we set out in para 23 above.  That portion commences with a comment that the agent’s argument “overlooks the fact that the members of [a] family unit can be geographically separate”.  It goes on to note there is no requirement in reg 1.12 that members of a family be co-located.  Then follows a sentence that presumably was critical in the thinking of Merkel J:  “Thus at all material times when the applicant and her mother [were] in the Philippines and her father in Australia, as well as when all parties were in Australia, there has only been one family unit in question”. 

28                  However, it is important to note the quoted sentence did not purport to give the Tribunal member any factual information.  Andrew had no information about the case other than what was set out in the Tribunal member’s circular.  Andrew merely used assumed facts to illustrate his point that members of a family unit may be geographically separated.  This is clear from the final sentence in the quoted passage of his memorandum: “The family unit did not change simply because its members were united.”.

29                  The critical issue in relation to s 359A(1) is not the origin of the communication to the Tribunal member but its nature.  For example, if another member of the Tribunal, or a Tribunal officer, gave to the member hearing a particular case a piece of factual information about an applicant that was potentially prejudicial to the applicant’s case, s 359A(1)(a) would oblige the Tribunal member to disclose that information to the applicant and invite the applicant’s comment about it.  That is an understandable result.  The factual information is new material, not given to the Tribunal member by the applicant or previously raised.  In terms of procedural fairness, it can make no difference whether its source is within the Tribunal or outside.  The applicant is entitled to know about the factual information and to deal with it.

30                  However, the expression of a view about the proper interpretation of the regulations, or the preferable decision having regard to a set of assumed facts, is not in the same category.  Division 5 of Part 5 of the Migration Act, in which s 359A appears, makes a distinction between “information” and “comment”.  This distinction appears clearly in ss 359B and 359C.  Thus s 359B(1) sets out the alternatives of a person being:

“(a)     invited under section 359 to give additional information; or

(b)               invited under s 359A to comment on information.”

It seems obvious that, in this section, the word “information” is used to refer to a statement by way of assertion of fact, whereas “comment” is used to refer to an observation about facts.

31                  The same usage appears in s 359C and, we think, in s 359A: compare paras (a) and (c) of s 359A(1).

32                  Andrew did not make, or purport to make, any assertion about the appellants’ factual situation.  He simply offered a comment to the effect that geographic separation was not inconsistent with the family continuing to be one “family unit”.  That was a legal comment; it was not “information” within the meaning of s 359A. 

33                  Andrew’s communication to the Tribunal member did not trigger an obligation under s 359A(1) of the Act.  There is no merit in the appellants’ first procedural point.

Section 362A(1)

34                  The second procedural point arises out of s 362A(1).  That sub-section relevantly reads:

“… the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.”

35                  The appellants’ contention before Merkel J was that Andrew’s memorandum constituted written material “given or produced to the Tribunal for the purposes of the review”; accordingly, the memorandum was required to be provided to them.  That argument was repeated before us.

36                  The Minister submitted to Merkel J that s 362A(1) only applies to information provided by third parties to the Tribunal, not to information circulated within the Tribunal; the section does not extend to an internal document produced by officers, or other members of the Tribunal, to a Tribunal member conducting a review in order to assist or advise that member in relation to the conduct of a particular review.  The Minister supported that approach by referring to s 373(1) of the Act, which confers on members of the Tribunal the same protection and immunity as that enjoyed by members of the Administrative Appeals Tribunal.

37                  Merkel J (at para 41) referred to a distinction made in Aronson and Dyer, Judicial Review of Administrative Action (2^nd ed) at 425-426, between “material” and “mere comment or evaluation of material already addressed by the persons concerned”.  Merkel J thought there was a valid distinction between “written legal research material prepared by a research officer specifically assigned to assist a decision maker in a particular matter and factual material provided by investigatory officers in the decision maker’s department”.  He noted that, under general principles of administrative law, the former category is likely to be protected from disclosure but the latter category is likely to be characterised as material from another source.

38                  At paras 43-45 Merkel J set out the following conclusions on this issue:

“          The question of whether particular written material will fall within s 362A will be a question of fact in each case but that question must be considered in the context of the MRT’s inquisitorial functions.  These functions require the MRT to undertake its own factual investigation, including exercising the power to ‘get any information that it considers relevant’ (s 359(1)), which in practical terms requires a member to obtain information from officers or other members of the MRT or from other persons.

            The cases referred to above give effect to the practical realities of how the member or members constituting a tribunal, such as the MRT and the RRT, function in a particular case.  Similar considerations have led me to conclude that a MRT member is not obtaining information from another source when he or she requests and obtains from officers or other members of the Tribunal informed opinions on the legal issues that have arisen in a matter to enable the member conducting the review to form a balanced judgment on the merits of the matter: …  However, if the information requested relates to factual matters that were required to be determined by the member then the information provided is appropriately characterised as information given or produced to the member from another source: …

            Andrew’s memorandum is, as a matter of substance, an informed opinion on legal issues pursuant to the request made by the MRT member to his ‘[c]olleagues’ and is therefore more appropriately characterised as written material of the MRT and therefore not within s 362A, notwithstanding that the particulars of certain information contained in the memorandum were required to be disclosed under s 359A.”

39                  We agree with this approach.  It construes s 362A(1) in a manner consonant with well-developed principles of general administrative law and provides a result consistent with ordinary notions of fairness.  The approach ensures that the applicant is informed of any factual material that is put before the Tribunal member, whether that material emanates from within the Tribunal or outside it, but it does not require the Tribunal member to disclose to the applicant the nature or content of any advice or assistance the member may receive from persons within the Tribunal in resolving a particular case.  An applicant needs to know about the former, but not the latter.  And it would be extremely burdensome if Tribunal members were required to notify an applicant about every item of assistance they received in conducting a hearing and finalising a decision.

40                  In our opinion there was no contravention of s 362A(1) in this case.

Disposition

41                  It seems to us all the points argued on behalf of the appellants must fail.  The appeal should be dismissed.

42                  The respondent filed a Notice of Contention in respect of the s 359A point.  That notice foreshadowed a contention that the Court ought to order the appellants to pay the costs incurred by the respondent in connection with the hearing before Merkel J.  That contention was in fact put by counsel.  However, no cross-appeal has been filed.  As is made plain by Order 52 rule 22(1) of the Federal Court Rules, a cross-appeal is the appropriate mechanism to be used by a party who seeks a variation of part of a judgment.  A notice of contention is used, in the words of rule 22(3), “if a party proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of a part of the judgment pronounced”.

43                  In the absence of a cross-appeal, we have no power to interfere with Merkel J’s decision as to costs.  The order of the Court will be that the appeal be dismissed with costs.

Associate:

Dated:              9 August 2001