FEDERAL COURT OF AUSTRALIA

Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395

MIGRATION – judicial review – application for Change in Circumstance (Residence) (Class AG) visa, subclass 806 – definition of “remaining relative” – definition amended on more than one occasion – which version of definition should be applied at time of application – whether same definition applied at time of decision – whether Tribunal took into account irrelevant considerations when determining where second applicant’s parents were “usually resident” – whether applicants should now be allowed to argue that they could satisfy new form of regulation if remitted to Tribunal – whether Court should exercise discretion to refuse relief

WORDS AND PHRASES – “remaining relative”

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Migration Act 1958 (Cth) s 45(1)

Migration Regulations 1994 (Cth) reg 1.15; Sch 1, item 1107; Sch 2, Pt 806, cl 806.213 and 806.221

Migration Amendment Regulations 1999 (No. 13) (Cth) regs 4 and 5; Sch 2, item 2109

Migration Amendment Regulations 2002 (No. 5) (Cth) reg 4 and Sch 2, item 2101

Acts Interpretation Act 1901 (Cth) s 48(2)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 492-494 and 506, referred to

Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 259, applied

Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 396 at 402-403, referred to

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, applied

Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545, applied

Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550, applied

Ogston v Repatriation Commission [1999] FCA 342 at [12], referred to

Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 at [8]-[9], referred to

Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 733-734, followed

J C Decaux Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339 at 344, referred to

Issitch v Worrell (2000) 172 ALR 586 at 594-595, referred to

Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512, referred to

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, referred to

Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 at 386, followed

C K Comans, “Retrospective Commonwealth Regulations” (1953) 27 Australian Law Journal 231

F Bennion, Statutory Interpretation (3^rd edn, 1997) at 685

JOSEPH IGNATIOUS and MURALEESWARY IGNATIOUS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JOY WHITAKER (in her capacity as a Member of the Migration Review Tribunal) and STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal)

V218 of 2003

WEINBERG J

29 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  There be no order as to costs.

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

REASONS FOR JUDGMENT

background

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for review of a decision of the Migration Review Tribunal (“the Tribunal”).  On 7 March 2003, the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the applicants a Change in Circumstance (Residence) (Class AG) visa, subclass 806 (“the visa”).

2                     The applicants seek a declaration that the decision of the Tribunal was invalid and contrary to law, as well as a writ of certiorari to call up and quash the Tribunal’s decision, or an order that the decision be quashed or set aside.  They also seek a writ of prohibition or an injunction prohibiting the Minister from acting on, giving effect to, acting in accordance with, or relying upon the Tribunal’s decision.  The applicants also seek a writ of mandamus, injunction or order that the matter be remitted to a differently constituted Tribunal to determine the application according to law.  Finally, the applicants seek their costs.

3                     The applicants, who are married, are Sri Lankan nationals.  They entered Australia on or about 10 June 1996.  On 29 July 1998, having failed in their applications for protection visas, they applied for the visa. The first applicant applied for the visa on the ground that he was a “remaining relative”, within the meaning of that expression in the relevant regulations, of his brother, an Australian citizen.  On 18 June 2001, the Minister’s delegate refused the grant of the visa.  On 9 July 2001, the applicants applied to the Tribunal for review of the delegate’s decision.

4                     For the purposes of the relevant legislation, the parents of the second applicant (“the parents”) were “overseas near relatives”.  They had resided with the applicants in Sri Lanka, and again resided with them after the parents came to Australia on 18 March 1997.  At the time the Tribunal made the decision under review, the parents were on bridging visas following a failed claim for protection visas.   

5                     On 9 December 2002, the Tribunal invited the applicants to comment on the issue of whether, under the relevant legislation, they were disqualified from being “remaining relatives” because at the time of application they usually resided in Sri Lanka with the parents, who were “overseas near relatives”.  The applicant’s solicitor replied on 21 January 2003 that all of the first applicant’s family were Australian citizens or permanent residents and, more importantly, that:

 “the applicant’s wife is the only child and her parents are also living in Australia.  There is no one living in Sri Lanka either in the applicant’s family or his wife’s family.”

6                     On 20 February 2003, the Tribunal conducted a hearing of the application.  On 7 March 2003, the Tribunal affirmed the delegate’s decision. 

relevant legislation

7                     Before turning to the Tribunal’s findings, it is necessary to set out in some detail the relevant regulations.

8                     A non-citizen who wishes to apply for a visa must apply for a visa of a particular class: s 45(1) of the Act.  As at 30 July 1998, which was the date of the applicants’ application, there was a class of visa known as a Change in Circumstance (Residence) (Class AG) visa: see item 1107 of Sch 1 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”) as in force immediately prior to the Migration Amendment Regulations 1999 (No. 13) (Cth).  The applicants applied for a subclass of that class known as subclass 806 (Family).  The primary and secondary criteria for the grant of a subclass 806 visa were set out in Pt 806 of Sch 2 to the Migration Regulations. 

9                     The primary criteria relevantly included that, at the time of application, the applicant be a “remaining relative” of another person who was, inter alia, a settled Australian citizen usually resident in Australia, who had nominated the applicant for the grant of the visa: cl 806.213 of Sch 2 to the Migration Regulations.  Another applicable criterion was that, at the time of decision, the applicant “continues to satisfy the criterion in clause 806.213”: see cl 806.221.

10                  The term “remaining relative” was relevantly defined in reg 1.15 of the Migration Regulations.  At the time the application was made, this regulation (“the prior definition”) relevantly stated:

“(1)     An applicant for a visa is a remaining relative if the applicant has a relative who:

(a)               is:

(i)                 a brother, sister or parent;…

                        of the applicant; and

(b)               is:

(i)                 an Australian citizen; or

(ii)               an Australian permanent resident; … and

(c)                is usually resident in Australia;

            unless the applicant is disqualified under subregulation (2).

(2)        An applicant 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; …

(3)        In this regulation, overseas near relative means a person who is:

(a)               a parent …

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).”

11                  However, a new version of that regulation was introduced after the applicants lodged their application for the visa.  Regulation 1.15 was substituted in its present form by reg 4 of the Migration Amendment Regulations 1999 (No. 13) (Cth) (“the 1999 Regulations”), and item 2109 of Sch 2 thereto, as from 1 November 1999.  This regulation (“the new definition”) relevantly stated:

“(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 …brother … 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; …

(2)       In this regulation:

overseas near relative, in relation to an applicant, means a person who is:

(a)              a parent … 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 known country of residence unless the applicant satisfies the Minister that the relative resides in another country.”

12                  The relevant differences between the prior definition and the new definition are that:

·                    the new definition expressly requires the applicant to satisfy the Minister of all of the matters referred to, while the prior definition contained certain disqualifying conditions;

·                    the new definition required the applicant to satisfy the Minister that the applicant and the applicant’s spouse usually resided in a country, not being Australia, that was different to the country in which an overseas near relative (if any) resided.  Previously, an applicant was disqualified if the applicant (or the spouse) usually resided in the same country, not being Australia, as an overseas near relative; and

·                    the new definition introduced a provision that an overseas near relative was to be taken to reside in his or her last known country of residence unless the applicant satisfied the Minister that that relative resided in another country. 

13                  The transitional provisions applied the new definition to pending applications: reg 5(2) of the 1999 Regulations.  However, those transitional provisions also, inconsistently, continued the application of the prior definition to pending applications for some types of visas, including the type sought by the applicant: reg 5(5). 

14                  This inconsistency was apparently resolved by reg 4 of the Migration Amendment Regulations 2002 (No. 5) (Cth) and item 2101 of Sch 2 thereto, which commenced on 1 November 2002.  That item inserted a new reg 5(9) (“the 2002 Regulation”), which stated:

“(9)     Despite subregulation (5), the amendment made by item [2109] of Schedule 2 to these Regulations applies in relation to the criteria to be satisfied at the time of decision for an application for 1 of the following visas made before 1 November 1999 but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 November 2002:

(a)          Family (Residence)(Class AO);

(b)          Change in Circumstances (Residence)(Class AG).” (emphasis added)

the Tribunal’s findings

15                  In its reasons for decision, the Tribunal set out the legislative provisions that it regarded as relevant and applicable to the proceeding before it.  After noting the 2002 Regulation, the Tribunal stated that its effect was that the “most recent definition of ‘remaining relative’, introduced by item 2109 of Schedule 2 of the Migration Amendment Regulations 1999 (No. 13), applies”.

16                  After setting out that definition, the Tribunal considered whether at the time of application, the applicants were usually residing in a country (not being Australia) that was different to the country in which their overseas near relatives (namely the parents) resided.  It noted that sub-reg 1.15(3) (of the new definition) provided that an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfied the decision-maker that the relative resided in another country.

17                  The Tribunal referred to policy relating to the new definition that stated that where it was necessary to establish in which country an overseas near relative resided, “account may be taken of that relative’s resident and employment history”.  The Tribunal noted that policy also stated that overseas near relatives in Australia on, inter alia, temporary visas are not taken to reside in Australia, but are taken to usually reside in the country that was their home country immediately before entering Australia.

18                  The Tribunal held that a person did not necessarily cease to be a resident of a place because he or she was absent from it.  In deciding that the parents did not usually reside in Australia, the Tribunal considered the following factors:

·                at the time of application, the parents had spent about sixteen months in Australia on temporary visas;

·                one of the parents had a work history of thirty-five to forty years in Sri Lanka;

·                the parents had lived in Sri Lanka for around sixty years;

·                the parents continued to own property and other assets in Sri Lanka; and

·                they did not have a “property or employment connection” with Australia. 

19                  The Tribunal concluded that the parents’ status as holders of bridging visas for around 12 months at the time of application was a “tenuous connection with Australia”.

20                  The Tribunal was therefore not satisfied that at the time of application, the applicants usually resided in a country, not being Australia, that was different to the country in which the parents resided.  That rendered the applicants ineligible for the visa sought, and as a result, the decision under review was affirmed.

the applicants’ submissions

21                  It is clear, and was not disputed by the respondents, that the Tribunal wrongly applied the new definition when considering whether the criteria were met at the time of application, as distinct from at the time of decision.  As indicated above, the 2002 Regulation expressly applied the new definition to visa applications of the present type only in relation to the criteria to be satisfied at the time of decision.  Counsel for the applicants therefore submitted that the Tribunal’s error in this regard was jurisdictional, and that relief should be granted notwithstanding s 474 of the Act, or for that matter, Sch 2 to the ADJR Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 492-494 per Gleeson CJ, and at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ (“Plaintiff S157”).

22                  Further, counsel for the applicants submitted that there were separate and additional jurisdictional errors, namely that the Tribunal applied the wrong test, took into account irrelevant considerations or failed to consider relevant considerations in considering whether the parents were “usually resident” in Australia.  He submitted that the matters taken into account by the Tribunal, such as the parents’ employment history and ownership of property, were irrelevant.  He further submitted that the Tribunal had failed to consider the essential elements of physical presence and intention, those elements being central to the test of “usual residence” as explained by a Full Court of this Court in Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 (“Scargill”).  The Tribunal’s reliance on policy in this regard was at variance with the law.

23                  Counsel for the applicants submitted that their case was founded on these quite separate errors, the first being conceded, and the errors relating to the meaning of “usual residence” not being seriously contested.  It was submitted that errors of this type would ordinarily be jurisdictional in the sense described in Plaintiff S157.  The real question was whether, as the respondents submitted, the Tribunal would inevitably have come to the same decision notwithstanding these errors, principally because, on the respondents’ argument, the applicants could not satisfy the new definition of “remaining relative” at the time of decision.  This was characterised by counsel for the applicants as a question of the futility of the application (being a matter of discretion to refuse relief) and by counsel for the respondents as a question of whether there were operative jurisdictional errors that would entitle the applicants to relief.

24                  Counsel for the applicants submitted, in answer to the contention that it would be futile to remit this matter, that the first of the Tribunal’s errors was so fundamental as to entitle the applicants to relief without further argument. In the alternative, counsel submitted that the error affected the decision by wrongly foreclosing the question whether the applicants were “remaining relatives” both at the time of application, and at the time of decision.  In particular, he submitted that the 2002 Regulation, which purported to apply the new definition to the criteria to be satisfied at the time of decision, was invalid.  Late in the day, he also submitted that even if the new definition did apply to the criteria at the time of decision, there was a logical possibility, albeit a possibility that might be thought to be against the weight of the evidence, that would have left it open to the Tribunal to conclude that the applicants were “remaining relatives” even under the new definition.

At the time of application

25                  Counsel argued that the alleged errors affected the decision in that it was open to the Tribunal to find that the applicants met the prior definition of “remaining relative” at the time of application.  The evidence was that they met the requirements of then reg 1.15(1) if not disqualified under then reg 1.15(2).  The only relevant disqualifications, at that time, were that (i) the applicant usually resided in the same country, not being Australia, as an overseas relative, or (ii) that the applicant had been in contact with an overseas near relative during a reasonable period preceding the application.  In relation to the first of these, counsel relied on the submission that the Tribunal had wrongly determined the question of “usual residence”.  Thus it was open to the Tribunal, on the correct test of “usual residence” as explained in Scargill, to find that the parents resided in Australia.

26                  In relation to the second possible disqualification, counsel observed that, because of its conclusion on the question of usual residence, the Tribunal had not considered or made any findings with regard to the question of “contact”.  That question, he submitted, had not been considered by the Tribunal and involved a concept quite distinct from that of usual residence.  Had the Tribunal addressed that question, it would have involved a different exercise, and may have resulted in a different outcome from its erroneous finding on usual residence.  Counsel noted, for example, that the Tribunal would have had to consider the definition of “reasonable period”, make findings as to whether there had been “contact” (as defined in Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 396 at 402-403), and the relevance of the period that the parents had been separated from the applicants.  While it was conceded that there was a real possibility that the Tribunal might have determined the question of contact adversely to the applicants, that possibility did not rise to the level of inevitability, and therefore did not lead to the conclusion that it would be futile to remit this matter to the Tribunal for proper hearing and determination.

At the time of decision

27                  Counsel submitted that the Tribunal’s errors had also affected its decision in that it would have been otherwise open to the Tribunal to conclude that the applicants met the requisite criteria at the time of decision.

28                  Counsel’s main argument was that the new definition of “remaining relative” did not apply.  He submitted that this was because the 2002 Regulation, that purported to render the new definition applicable, was invalid. That was either because of s 48(2) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”),or because the 2002 Regulation was inconsistent with cl 806.221 which required the applicants to “continue” to meet the criterion established as necessary at the time of the application, including the definition of “remaining relative”. Thus, on the true construction of cl 806.221, the applicants had to be judged against the same standard, namely the same definition of “remaining relative”.  To the extent that reg 5(9), which was merely a transitional provision, created an inconsistency with cl 806.221, which was the substantive and operative provision, the transitional provision should therefore be regarded as invalid.

29                  Section  48(2) of the Acts Interpretation Act relevantly provides:

“A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result:

(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person …”  (emphases added)

30                  Counsel in this proceeding disagreed on the interpretation of the phrases “would take effect before the date of notification” and “the rights of a person”.

31                  With regard to the expression “would take effect before the date of notification”, counsel for the applicants submitted that the section was not confined only to regulations which were expressed to take effect before the date of notification (which could be described as “the literal view”), as counsel for the respondent contended.  Instead, he submitted that the section had broader effect and that it invalidated regulations that would effectively prejudice the rights of a person existing before the date of the notification.

32                  Counsel for the applicants sought to distinguish two cases upon which counsel for the respondents relied, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 (“Aberfield”) and Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545 (“Toowoomba”), on the basis that the terms of the legislation in those cases were narrower than the terms of the present legislation.  He noted that the previous legislation had provided that regulations “shall not be expressed to take effect from a date before the date of notification” if certain conditions were fulfilled.

33                  In this case, counsel for the applicants submitted that while the application of the new definition was expressed prospectively, in the sense that it only changed the criteria to be applied at the time of a decision made afterthe date of notification, the assessment of those criteria was so intimately and intricately connected with the criteria to be applied at the time of application that it would be wholly artificial to separate the two.  As such, the effect of the 2002 Regulation was to prejudice the rights of the applicants.

34                  Counsel for the applicants further submitted that because item 2101 of Sch 2 to the Migration Amendment Regulations (No. 5) 2002 (Cth) inserted a new sub-regulation that changed the operation of transitional provisions that commenced on 1 November 1999 in an indirect and technical manner, it operated from 1 November 1999 and thus “took effect before the date of notification”.

35                  With regard to the “rights of a person”, counsel submitted that the applicants had the right to have their application considered and determined according to law.  They also had the right to have the visa granted if they met the criteria as they stood at the time of application.  The new definition would prejudice those rights, and therefore the 2002 Regulation was invalid.

36                  Counsel also argued that the 2002 Regulation was invalid because of the requirement in criterion 806.221 that the applicant “continue” to satisfy the criterion in clause 806.213.  It was submitted that it would be illogical to say that an applicant “continues” to meet a criterion if the definition of that criterion had been significantly amended.  The applicant had to be judged against the same substantive standard in order to assess whether he or she “continued” to meet that criterion.  The 2002 amendment therefore had the effect of undoing or contradicting a critical part of an existing regulation, and the best way of resolving that otherwise intractable difficulty was to invalidate the amendment to the definition, rather than to undermine the heart of the regulation. 

37                  As noted earlier, counsel made a late submission, in the alternative, that it was logically possible that even if the new definition did apply, the Tribunal could find that the applicants were “usually resident” in Sri Lanka, and the parents “usually resident” in Australia at the time of the decision.  They would therefore meet the requirements contained in the new definition.  The possibility that the Tribunal could arrive at such a conclusion meant that, even if the new definition did apply, it would not be futile to remit the matter to the Tribunal.  The findings about “usual residence” would be matters of fact to be determined by the Tribunal on the evidence before it.

38                  It is fair to say that counsel for the applicants recognised the difficulty with this last submission.  It is hard to see how the Tribunal could reasonably find that, as matters stand today, the applicants are “usually resident” in Sri Lanka but, applying the same test to the parents, the parents are “usually resident” in Australia.

39                  Replying in supplementary submissions to the objection to this late submission by counsel for the respondents, counsel for the applicants argued that it did not amount to pleading inconsistent facts, but rather emphasised that the Tribunal was, after all, the arbiter of fact and that this was a possible set of conclusions that the Tribunal might reach.  He further submitted that the late submission did not amount to resiling from a concession as to the state of facts. Rather, it sought to advance a corrected view of the operation of the new definition.  He submitted that there was no prejudice to the respondents in allowing the point to be raised for the first time at the end of his argument, as the point was confined and adequately addressed in supplementary submissions.  Finally, he submitted that the applicants were not seeking to take an unfair advantage, and that their case was based upon the facts that were before the Tribunal when it first determined this matter, and it was not likely that those facts would be different if the matter were remitted.

the respondents’ submissions

40                  As noted earlier, counsel for the respondents conceded that the Tribunal had applied the wrong definition of “remaining relative” when considering the criteria to be met at the time of application.  In relation to its reasoning on “usual residence”, he submitted (albeit without any apparent conviction) that the Tribunal, although “distracted” by the policy manual, had come to a conclusion that was open on the evidence before it.  However, he submitted that notwithstanding the errors of law made by the Tribunal, and notwithstanding the fact that they might be characterised as jurisdictional, the decision arrived at was clearly correct on the material before it, and so relief should be refused:  Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 (“Morales”).

At the time of application

41                  In relation to the criteria that had to be satisfied at the time of application, counsel for the respondents submitted that on the evidence before the Tribunal, the only finding that could conceivably have been made was that the applicants were disqualified because they had been in contact with the parents.

42                  Counsel noted that the evidence was that the applicants had lived with the parents from the very date of the parents’ arrival in Australia.  The applicants had also previously lived with the parents in Sri Lanka.  It was “fanciful” to argue that the “question of residence with the applicants was a distinct one from the question of contact”, and that the Tribunal may have found that the applicants did not have contact with the parents “during a reasonable period preceding the application”.  The “detail” of that contact was irrelevant.  Any contact during a reasonable period preceding the application was a disqualifying condition. 

At the time of decision

43                  More importantly, counsel for the respondents contended that s 48(2) of the Acts Interpretation Act, upon its true construction,did not invalidate the 2002 Regulation. First, he submitted that this Court should adopt a narrow interpretation of the expression “would take effect before the date of notification”, namely that the regulation could not purport to operate prior to the date of notification if it adversely affected rights.  In that regard he relied upon the decisions of Aberfield and Toowoomba, and referred to an article by C K Comans, “Retrospective Commonwealth Regulations” (1953) 27 Australian Law Journal 231.

44                  Counsel for the respondents did not agree that these decisions were distinguishable on the basis that the relevant provision of the Acts Interpretation Act at the time provided that the regulation “shall not be expressed to take effect” before the date of notification.  He noted that the present section had been introduced by the Law and Justice Legislation Amendment Act 1990 (Cth).  Reference to the second reading speech of that Act revealed that the purpose of the amendment was to “make … clear that a regulation which retrospectively prejudices the rights of a person has no effect at all, and is not simply ineffective to the extent that it is retrospective”.  Further, in s 48(1)(b) of the Acts Interpretation Act, the phrase “take effect” was clearly used as the equivalent of “begin”, “commence” or “come into operation”.  That phrase should be presumed to have the same meaning in both s 48(1)(b) and s 48(2).

45                  Counsel for the respondents also relied upon Ogston v Repatriation Commission [1999] FCA 342, in which a Full Court noted at [12] that a Statement of Principles in relation to repatriation pensions, which had been made in the interval between application and decision, did not fall foul of s 48(2) as it “did not purport to come into operation before the date of notification in the Gazette.”

46                  Counsel for the respondents also submitted that, by definition, an applicant did not have a right to a visa for which “time of decision” criteria existed, unless at the time of decision the facts were such as to meet whatever requirements the law might impose at that time.  A person with a pending application was no more entitled to immunity from changes in the law than from changes in his or her factual situation.  Therefore, the applicants’ submission that they had “a right to expect that their eligibility for the visa at the time of application … would not be abrogated by later changes to the regulations” should be rejected. 

47                  In relation to the interpretation of the word “continues”, it was submitted that this word simply required that the applicant must answer the description at two separate points of time: Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 at [8]-[9].  Accordingly, the same definition need not be applied at those separate points in time. Counsel observed that the 2002 Regulation was unusually clear in its intention, and that the application of different definitions at the time of application and decision did not amount to an absurdity or illogicality sufficient to displace that clear intention.  The word “continues” was merely a cross-reference to another provision, which could be changed from time to time.

48                  Counsel for the respondents also submitted that the mere fact that the 2002 Regulation inserted a further sub-regulation into the 1999 transitional provisions did not mean it “took effect” from that earlier date.  Clearly, decisions made between 1999 and 2002 were not intended to be affected. It was merely a convenient manner of amending legislation, but its effect was prospective.

49                  In supplementary submissions, counsel for the respondents challenged the “logical possibility” that the applicants might, in any event, meet the new definition.  He observed that throughout the court documents, and for the majority of the hearing, counsel for the applicants had actually contended to the contrary.  That position was inevitable because the material before the Tribunal demonstrated quite clearly that the usual abode of the applicants was Australia, and that they at all relevant times intended to remain in this country.

50                  Counsel submitted that it would not be open to the applicants to contend that the matter should be remitted because their situation might change at some point in the future before the case was reheard: Carlos v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 719 at 733 (“Carlos”).  In any event, it would be idle to speculate that the applicants might be able to satisfy the Tribunal that they “usually resided” in Sri Lanka.  Any such suggestion simply flew in the face of reality.  Finally, it was submitted (relying on J C Decaux Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339 at 344) that the applicants were precluded from resiling from their prior concessions by reason of, or by analogy with, the doctrines of election, and approbation and reprobation.  Alternatively, they could not plead inconsistent facts where one set of those facts must be known to be false: see Issitch v Worrell (2000) 172 ALR 586 at 594-595 per Drummond J.

conclusion

51                  It is common ground, and clear in any event, that the Tribunal erred when it applied the new definition of the term “remaining relative” in determining whether the applicants met the criteria for the visa at the time of application.  That new definition had nothing whatever to do with those criteria. The Tribunal ought instead to have applied the prior definition. The Tribunal therefore applied the wrong legal test when considering whether the applicants met the requirements of reg 806.213 (the criteria applicable at the time of application).

52                  The Tribunal did not, at any stage, consider whether the applicants satisfied the criteria applicable at the time of decision.

53                  In my view, the Tribunal also erred by taking into account irrelevant considerations when determining whether the parents were “usually resident” in Sri Lanka at the time of application.  The authorities seem to me to establish that neither the fact that they had lived in that country for many years, nor the fact that they continued to own property there, was capable, without more, of establishing that they were usually resident outside Australia.  Indeed, the authorities suggest that these facts are really quite immaterial.

54                  In Scargill, the applicant was born in the United Kingdom in 1974.  His parents divorced in 1981.  Both before the divorce, and since, neither he nor his mother had any contact with his father.  In 1993 he and his mother moved to the United States.  In 1998 he entered Australia on a visitor’s visa.  Before that visa expired, he applied for a Family (Residence) (Class AO) visa.  An applicant for such a visa had to be a “remaining relative” of, inter alia, a settled Australian permanent resident, usually resident in Australia, who nominated the applicant for the grant of the visa.  His mother, with whom he lived in Australia, was a settled Australian permanent resident who nominated him for the grant of the visa.  Throughout, he was lawfully in Australia. 

55                  At the time of the hearing before the Tribunal, he had been in Australia for four years.  He had no continuing ties with the United States, and had no intention of returning to that country.  It was assumed, but not shown, that his father was alive and in the United Kingdom.  The Tribunal found that he was disqualified from being a “remaining relative” because he usually resided in the United Kingdom, the country with which he had the strongest ties, and in which his father presumably resided. 

56                  The Full Court held that the Tribunal had failed to consider physical residence and intention which were essential elements in the notion of “usually resides”.  The finding that the appellant usually resided in the United Kingdom was not open.  In failing to address the proper meaning of the critical expression, and reaching a conclusion incapable of supporting the finding made, the Tribunal had erred in law.  Moreover, it had constructively failed to exercise the jurisdiction vested in it.

57                  The Full Court endorsed the reasoning of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 in arriving at this conclusion.  The Full Court also endorsed the approach formulated by Williams J in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249 where his Honour observed that an individual’s place of residence was determined not by the location of his or her business or property, but by reference to where “he eats and sleeps and has his settled or usual abode”.  The fact that the appellant was born in the United Kingdom, and lived there until about 1993, were matters of historical tie.  However, these facts of themselves said nothing about his current place of abode or his intentions.

58                  The Tribunal’s reasons for decision cannot readily be reconciled with the approach authoritatively adopted in Scargill. The Tribunal therefore committed two quite separate errors.

59                  Counsel for the respondents submitted that notwithstanding the Tribunal’s errors, relief should be refused because neither had been “operative” in the sense that it had affected the ultimate decision to reject the applicants’ claim to the visa.  He submitted that the Tribunal was bound to apply the new definition of “remaining relative” when considering whether the criteria for the grant of the visa were met at the time of decision.  He contended that it would have been impossible for the applicants to satisfy that definition as at the date of the Tribunal’s decision, and that it would be equally impossible for them to satisfy that definition in the future if this matter were to be remitted. That was because they could not establish that their “usual residence” differed from that of the parents, or that they had not been in “contact” with the parents within a reasonable period before making the application.

60                  As previously indicated, counsel for the applicants submitted that the prior definition continues to apply notwithstanding the fact that reg 5(9) expressly renders the new definition applicable at the decision stage.  He was virtually forced into that position because he recognised, correctly, that the applicants would find it difficult to satisfy the criteria set out in the new definition. His solution to that dilemma was ingenious.  He submitted that reg 5(9), which purported to make the new definition applicable only at the decision stage, was invalid. 

61                  In substance, he relied upon the two arguments previously identified, the first of which related to s 48(2) of the Acts Interpretation Act.  In my view, that argument must fail. 

62                  Section 48(2) formerly provided that regulations should not be expressed to take effect from a date before the date of notification in the Gazette where, if the regulations so took effect, the rights of a person would be affected in a manner prejudicial to that person, or liabilities would be imposed on any person in respect of anything done or omitted to be done before the date of notification.  Where in any regulations any provision was made in contravention of that subsection, that provision would be void and of no effect.

63                  In Aberfield, the High Court held that a regulation that prejudicially affected rights existing at the date of its notification did not fall foul of s 48(2) because it was not “expressed to take effect from a date before the date of notification” within the meaning of that subsection as it then stood. 

64                  In Toowoomba, Latham CJ considered the effect of s 48(2) at 568-569:

“This provision was considered in Australian Coal and Shale Employees’ Federation v. Aberfield Coal Mining Co. Ltd. where it was held that the section did not avoid a provision in a regulation merely because it affected existing rights prejudicially; a regulation which was not expressed to take effect from a prior date was not affected by the section, even though it deprived a person of existing rights—or, by parity of reasoning, though it imposed new liabilities upon him in respect of past acts or omissions. In that case, it was held that a regulation which terminated a right of appeal as from a particular date took effect only as from that date, and did not take effect at any past date. Nothing can alter the past, but a law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose as at a past date liabilities which did not then exist. In the Aberfield Case, the regulation in question did neither of these things. In the present case, however, the position is different. The decisions are given legislative effect by the regulation ‘according to their tenor.’ A meaning should be ascribed to the words ‘according to their tenor.’ In the case of the decision now under consideration, the effect of the regulation is to provide that the decision shall take effect as from 1st July 1943. In my opinion, it should be held that such a provision falls within s. 48 (2) because the words of the regulation express an intention that it shall impose as at a past date liabilities which did not then exist. The effect of the regulation can be ascertained only when the actual terms of the past decisions to which it applies are read into it. When this particular decision is so read in, the regulation is seen to be a regulation which is expressed to take effect from a date (1st July 1943) before the date of notification of the regulation in the Gazette (12th October 1944). Unless it were held that s. 48 avoids such a provision, a regulation could be passed which would give effect to provisions contained in other documents referred to, but not reproduced in, the regulation, and the regulation would be valid even though, if those documents had been repeated in the regulations, the regulation would clearly have been invalid. In my opinion, Statutory Rules 1944 No. 149 does not operate to make the decision valid so as to impose liabilities in respect of anything done or omitted to be done before 12th October 1944 if, apart from that statutory rule, it was invalid (as, in my opinion, it was for reasons already stated).

But this conclusion still leaves the decision in operation as to the period after that date. I read s. 48 (2) of the Acts Interpretation Act (combined with s. 46 (b)) as producing the effect that a provision made in contravention of s. 48 (2) is void only in so far as it is in contravention thereof. Accordingly, the claim of the plaintiff that the decision is bad in toto, as to the future as well as to the past, should not, in my opinion, be upheld. Prima facie, the result would be that the demurrer, in so far as it applies to the decision of the Board, should be allowed, but that the plaintiff should be given liberty to amend so as to allege invalidity of the decision in respect of the period before 12th October 1944.” (footnotes omitted)

65                  These cases were analysed by C K Comans, in the note referred to above.  The author observed that the power of the Commonwealth Parliament to make retrospective or retroactive laws was well-established.  He referred to s 48(2), in its then form, observing that s 48 had been enacted in that form in 1937.  After setting out the history of the section, he submitted that the view of Latham CJ in Toowoomba was “well established”, although there was room for difference of opinion in its application to particular regulations.  He concluded that there was much to be said for the view that the subsection, in its then form, applied only where there was a provision in so many words that the regulations were to take effect, operate or commence as from a specified past date.

66                  Although section 48(2) in its present form is expressed in terms that differ significantly from those that applied when the subsection was considered in Aberfield and Toowoomba, and analysed by Comans, the general effect of the provision in both forms is the same.  It cannot be said of the impugned regulation that, upon its proper construction, it “would take effect before the date of notification”.  It does not purport to do so.  Accordingly, the regulation is valid. 

67                  The second argument in support of the invalidity of reg 5(9) seems to me to be devoid of merit.  There is no reason, in principle, why a transitional provision that is clear in its terms should be rendered invalid merely because it is difficult to reconcile with an earlier provision couched in terms that are difficult to apply once the transitional provisions come into effect.  The normal principle of construction is that if there is an inconsistency, between an earlier provision and a later provision, the inconsistency is resolved in favour of the later provision: see generally F Bennion, Statutory Interpretation (3^rd edn, 1997) at 685.  That principle seems to me to be as applicable to regulations as it is to statutes. 

68                  However, the applicants contend that even if the new definition is applicable to the criteria at the time of decision, they can satisfy its requirements as regards the “usual residence” limb.  They also reject the Minister’s contention that they cannot possibly satisfy the requirements of the “contact” limb. 

69                  In order for the applicants to satisfy the new definition, they would have to satisfy the Tribunal of all of the matters referred to therein.  Previously, the regulation included certain disqualifying conditions.  If the applicant or the applicant’s spouse has an “overseas near relative”, the new definition requires him or her to satisfy the Minister that the applicant or the spouse usually reside in a country, not being Australia, that is different to the country in which that “overseas near relative” resides.  Previously, an applicant was disqualified if the applicant, or the spouse, usually resided in the same country, not being Australia, as an overseas near relative.  In addition, an applicant must establish that neither he or she, nor his or her spouse, has had contact with that relative within a reasonable period before making the application. 

70                  For the purposes of the new definition, an “overseas near relative” is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country. 

71                  The difficulty that the applicants have to overcome is that they must establish that their usual residence, at the time of making the application, and also at the time of the Tribunal’s decision, is different to the usual residence of the parents.  The applicants acknowledged that it would be virtually impossible for them to satisfy these requirements when they said, in [46] of their amended consolidated contentions of fact and law, in support of their argument regarding invalidity:

“The use of the word “continues” in clause 806.221(1)(a) means that the intention of the Regulation is that the same criterion should be satisfied in relation to being a remaining relative at the time of application and at the time of decision.  An amendment to the definition of the term “remaining relative” in relation to the criteria to be satisfied at the time of decision necessarily affects the definition in relation to the criteria at the time of application.  If the transitional provisions amending the definition of remaining relative take effect then the result is that the rights of the applicants at the date of notification of the amendment by Migration Amendment Regulations 2002 (No 5), 12 September 2002, are affected so as to disadvantage them because at the time they applied for the visa they were capable of satisfying the criterion in Regulation 1.15 but as at the date of notification and the purported amendment of Regulation 1.15, they became by that amendment unable to satisfy the criterion.”

72                  Given the undisputed facts in this case, it is difficult to see how the applicants could have contended otherwise.  Both the applicants and the parents arrived in Australia within a relatively short period, and both have the same desire to remain in this country.  If the applicants’ “usual residence” at the time of the making of their application was Sri Lanka, and the parents were “overseas near relatives”, the applicants would have to show that they “usually resided” in a country, not being Australia, that was different to the country in which their overseas near relatives resided.  In other words, they would have to establish that they usually resided in Sri Lanka, while the parents usually resided in Australia. 

73                  While it may be true that the Tribunal approached the question of the parents’ usual residence in an incorrect manner, it is difficult to see how it could arrive at the conclusion that the applicants, who arrived in this country before the parents, and had the same desire to remain here as the parents, usually resided in a different country to the parents.  That is particularly so when one has regard to the definition of “overseas near relative” in reg 1.15(3) of the new regulations.

74                  Equally telling is the difficulty that the applicants would face in establishing that they had not been in contact with the parents within a reasonable period before making the application. The fact that they lived together, at the same address, in the months leading up to the making of that application of itself gives rise to a powerful inference that that there was some “contact” between them during that period.  That inference is strengthened by the applicants’ own response to the issues raised by the Tribunal in a written submission dated 21 January 2003, in which their solicitor and migration agent stated:

“The applicant further states that his wife’s parents are living with them although they are not permanent residents of Australia.  They do not have anyone to look after at this old age since his wife is the only child and entirely depend on their support for everything.” (emphasis added)

75                  In my view, the Tribunal could not reasonably have found, on the material before it, that the applicants “usually resided” in Sri Lanka at the time of the Tribunal’s decision, but that the parents did not.  Indeed, any contention that such a finding was open flies directly in the face of the applicants’ consolidated contentions filed in Court on 12 March 2004 in which they contended at [45]-[46] that the Tribunal had erred in not concluding that they usually resided in Australia.  A finding that they did “usually reside” in Australia was said to be the only finding open, when regard was had to both their physical presence, and their intention.

76                  I note that throughout counsel’s submissions on behalf of the applicants, it was repeatedly conceded that they could not meet the criteria for the visa on the basis of the new definition.  They could not satisfy the Minister that they lived in a country, not being Australia, that was different to the country in which the parents usually resided.  In fact, on 1 September 2004 counsel said:

“That is a criterion which the applicants in the present case could not meet for this reason, that either the applicants and the second applicant’s parents reside in Australia or in Sri Lanka, either of those conclusions, for the sake of the present argument, might be open to the tribunal.  But it would appear very likely that they reside in the same country.”

77                  With regard to the question of “contact”, the second applicant gave evidence before the Tribunal that she was the only family that her parents had.  They were on bridging visas and had few assets.  She said that she was close to her parents and they had lived together for a long time.  Her parents could not live by themselves.  She and her husband supported her parents.

78                  It was submitted on behalf of the respondents that in view of the case the applicants had put to the Tribunal, and their subsequent assertions, they could not now be heard to say that their actual intention was to reside in Sri Lanka.  Nor could they be heard to say that they had any intention to live separately from the parents, still less in a different country.  Whether or not that is so, as a matter of strictness, need not be determined.  The real issue is whether it would be futile to remit this matter to the Tribunal because, as their counsel initially conceded, their claim must fail if the new definition is applicable.

79                  In my view, the respondents’ submission regarding futility is correct.  I cannot conceive of any circumstances in which the applicants would be able to satisfy the requirements of the new definition, whether as to “usual residence”, or as to “contact”.  Their only chance of meeting the requirements for the visa was if the prior definition applied at both stages.  For the reasons previously set out, I am satisfied that the prior definition does not apply at the decision stage.  Accordingly, although legal errors have been shown, it would be pointless to grant the relief sought.  Regrettably, in the proper exercise of discretion, that relief must be refused: see generally Morales at 560-562 and Carlos at 733.

80                  Finally, there is the question of costs.  The applicants say that even if they are unsuccessful in this application there should be no order as to costs. They claim that this proceeding is in the nature of a “test case”.  They also say that they were justified in bringing this application because the Tribunal applied the wrong legal definition to their case. If they are unsuccessful, it is only because they cannot now meet the requirements of the new definition. Those requirements did not exist at the time they initially applied for the visa.  Had the regulations not been changed, they may have succeeded in their application for that visa.   

81                  The Minister submits that costs should follow the event.

82                  In my view, there should be no order as to costs.  The application raised several important questions regarding the interpretation of s 48(2) of the Acts Interpretation Act, and also the construction of reg 1.15 in both its former and present form.  In that sense, it was in the nature of a test case: see generally Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 at 386 and Carlos at 374. More importantly, I do not think that it would be just to visit costs upon the applicants in circumstances where the Tribunal fell into legal error, and the applicants had every justification for seeking to have its decision set aside.  It is only because, in my opinion, they cannot possibly satisfy the requirements of the new definition, which did not exist at the time they initially sought the visa, that relief has been declined in the exercise of the Court’s discretion.

Associate:

Dated:              29 October 2004