Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo [2005] FCA 437

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Hidalgo

[2005] FCA 437

MIGRATION – Subclass 835 (Remaining Relative) visa – “overseas near relative” – finding that applicant usually resident in Australia – whether residence in Australia precludes grant of visa

Judiciary Act 1903 (Cth) s 39

Migration Act 1958 (Cth) s 475A

Migration Regulations 1994 reg 1.15

Migration Amendment Regulations 1999 (No 13) SR No 259

Scargill v Minister for Immigration (2003) 129 FCR 259 discussed

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 cited

Minister for Immigration and Multicultural Affairs v Hughes (1998) 86 FCR 567 discussed

Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 cited

Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 cited

Vines v Djordjevitch (1955) 91 CLR 512 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v YANIRE PAMELA AHUMADA HIDALGO

No Q 207 of 2004

SPENDER J

15 APRIL 2005

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 207 OF 2004

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPLICANT
AND:	YANIRE PAMELA AHUMADA HIDALGO RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed with costs to be taxed if not otherwise agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 207 OF 2004

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPLICANT

AND:

YANIRE PAMELA AHUMADA HIDALGO

RESPONDENT

JUDGE:	SPENDER J
DATE:	15 APRIL 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) from a decision of the Migration Review Tribunal (“the Tribunal”) given on 15 September 2004, whereby the Tribunal remitted the application made by the visa applicant for an Other Family (Residence) (Class BU) visa to the Minister for reconsideration, with the direction that the visa applicant met the following criteria for a Subclass 835 (Remaining Relative) visa:

clause 835.211 of Schedule 2;
clause 835.212 of Schedule 2;
clause 835.213 of Schedule 2; and
clause 835.221 of Schedule 2.

2 The Minister claims:

(i) A declaration that the decision is void and of no force and effect.

(ii) Certiorari removing the decision into the Federal Court of Australia to be quashed, or an order in the nature of certiorari quashing or setting aside the decision.

(iii) Mandamus or an injunction compelling the Tribunal to consider and determine according to law the applicant’s application for review.

(iv) Costs.

(v) Such further or other relief as the Court deems appropriate.

3 The contention by the Minister is that in making the finding that the applicant met the criteria for a Subclass 835 (Remaining Relative) visa

‘The Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

Particulars

(i) The Tribunal misconstrued or misapplied reg.1.15(1)(c)(i) of the Migration Regulations 1994.

(ii) The Tribunal found that the applicant had 2 overseas near relatives, each of whom resided in Chile.

(iii) The Tribunal found that the applicant usually resided in Australia both at the time of application and at the time of decision.

(iv) The Tribunal erred in law in finding that the applicant was a “remaining relative” within the meaning of reg.1.15, and in particular that she satisfied reg.1.15(1)(c)(i), on the basis that she usually resided in a different country to the country in which her overseas near relatives resided.

(v) The Tribunal misconstrued or misapplied reg.1.15(1)(c)(i), which required that the applicant usually reside in a country, not being Australia, that is different to the country in which each of her overseas near relatives resided.’

4 As the list of particulars set out above indicates, this application involves the construction of reg 1.15 of the Migration Regulations 1994 (“the Regulations”) made under the Migration Act 1958 (Cth) (“the Act”) and the application of reg 1.15 to the facts in the present case.

5 Reg 1.15, on any view of the matter, raises difficult questions of construction, particularly having regard to the amendments made to it which came into force on 1 November 1999, and the mischief which it is said those amendments were meant to overcome.

6 Before 1 November 1999, reg 1.15 provided as follows:

‘Remaining relative

(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; or

(ii) a step-brother, step-sister-or step-parent;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; or

(iii) an eligible New Zealand citizen; and

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; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (in this paragraph called the adoptive parent) while overseas;

but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

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

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

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

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

7 The disqualification from being a remaining relative that was contained in subpara 1.15(2)(a)(i) was the circumstance that the applicant was usually a resident of the same country as the usual residence of an overseas near relative and that country was not Australia. Thus, in the circumstances of this case, if the applicant usually resided in Chile and her mother usually resided in Chile, she would be disqualified from being a remaining relative but she would not be disqualified if she usually resided in Australia and her mother usually resided in Chile.

8 From 1 November 1999, when the amendments made by Migration Amendment Regulations 1999 (No 13) SR No 259 came into force, reg 1.15 provided as follows:

‘Remaining relative

(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

(a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

(b) the other person is usually resident in Australia; and

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

(ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and

(d) the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and

(e) if the applicant is a child who:

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas –

at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

(2) In this regulation:

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

(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or

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

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

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

other than a relative of that kind who:

(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.’

9 The Explanatory Statement, Statutory Rules 1999 No. 259, in association with the amendments introduced by Migration Amendment Regulations 1999 (No 13) SR 259 said, in relation to the changes in reg 1.15:

‘Item 2109 – Regulation 1.15

This item substitutes new regulation 1.15, which ensures that the evidentiary burden in respect of an assessment of whether a person is a “remaining relative”, is borne by the applicant. The amendments result from the decision of Hughes v MIMA (unreported, Full Federal Court, 31 March 1999) [“Hughes”] and are intended to clarify the original policy position.

New subregulation 1.15(1) provides that 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:

* the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

* the other person is usually resident in Australia; and

* if the applicant or the applicant’s spouse (if any) has an overseas near relative (defined in new subregulation 1.15(3) inserted by these Regulations):

- 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

- neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and

* the applicant and the applicant’s spouse (if any) together have no more than 3 overseas near relatives; and

* if the applicant is a child who:

- has not turned 18; and

- has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas

at the time of making an application, the adoptive parent has been residing overseas for a period of at least 12 months.

This item also amends the definition of “overseas near relative” currently defined in subregulation 1.15(3) of the Migration Regulations. As a result of amendments made by these Regulations, the term is now defined in new subregulation 1.15(2). The amendments to the definition of “overseas near relative” are consequential to amendments to the definition of “dependent child” made by these Regulations. The item removes the reference to “nondependent child” and to “non-dependent Stepchild”. It also inserts a new provision, with the effect that a child (including a step-child) of the applicant or the applicant’s spouse, will be an overseas near relative where the child:

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

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

New subregulation 1.15(3) provides that for the purposes of new paragraphs 1.15(1)(c) and (d), (which deal with the situation where the applicant or his or her spouse (if any) has an overseas near relative), the overseas near relative is taken to reside in his or her lat known country of residence unless the applicant satisfies the Minister that the relative resides in another country. The insertion of new subregulation 1.15(3) ensures that where the whereabouts of an overseas near relative of an applicant or his or her spouse (if any) are unknown, the overseas near relative is taken to reside in his or her last known country of residence.’ (Emphasis added)

10 The Tribunal had to consider the current reg 1.15 in the context of the facts in the present case which it found.

Factual Background

11 The respondent was born on 1 September 1975 and is a national of Chile. She arrived in Australia on a Subclass 686 (Tourist Long Stay) visa on 17 December 1988. She departed Australia on 14 June 1999 and re-entered on 17 June 1999. The Tourist Long Stay Visa was due to cease on 17 December 1999. She lodged her application for an Other Family (Residence) (Class BU) visa on 14 December 1999. That application, which is the subject of these proceedings, was on the basis that the applicant is a remaining relative of and nominated by her father Mr Juan de Dios Ahumada Robles. The Tribunal noted:

‘11. ▪ Parents: Juan de Dios Ahumada, married, and Leonor Maria Ahumada (step mother), married, both residing in Australia. Adelina Argelia Hidalgo (mother), country of residence unknown, was added at a later date when requested by the Department;

▪ Siblings: Trinidad del Carmen Ahumada, born on 20 June 1976; Juan Faustino Ahumada, born on 14 October 1981, and Robert Johnathan Ahumada, born on 17 June 198. All residing in Australia;

▪ Relatives outside Australia: None. Adelina Argelia Hidalgo, mother, was added at a later date on request of the Department.’

12. In a typed statement signed and dated 13 December 1999, the visa applicant claimed that she lived with her mother and grandmother Erlinda Adelina Aseares Nunez, after she was born and that her father had left when she was a few months old. She claimed that her mother later began a spousal relationship and that the grandmother had moved out. The visa applicant claimed that she was sexually abused by her step-father. She eventually moved out to live with her grandmother and her mother was pregnant at the time. The visa applicant claimed that she “cut contact with them and never saw them again”. She claimed that she lived with her grandmother until her grandmother died in August 1987, and then her grandmother’s friend took her in. She claimed that her grandmother had helped her to get in touch with her father who was in Australia, and that she spoke to him for the first time in 1994 and met him in 1995. The visa applicant claimed that she visited Australia in 1998, and that she learnt that her “mother was no longer living where she used to”.’

12 The Tribunal noted that the applicant had submitted with her visa application:

‘▪ Certified copy of letter from a Family Therapist of the Peace Centre. The Therapist claimed that she has seen the visa applicant on 3 occasions for counselling sessions regarding claims of sexual abuse as a minor. The Therapist noted that the visa applicant claimed her mother had remarried when she was 11 and her step-father abused her regularly until she moved out at age 15. The Therapist stated the opinion that “the relationship with her father step mother, step brother and sister appears to be having a healing effect on [the visa applicant’s] new found life;

▪ Copy and translation by the representative of a statutory declaration issued on 5 November 1999 from Sandra Onesima Aracena Marin, claiming that she knew the visa applicant’s family, but had not seen her mother again after the visa applicant’s grandmother passed away in August 1987. She claimed that she was aware that the visa applicant was under the care of Mrs Candelaria Tapia C after that;

▪ Copy and translation by the representative of a statutory declaration issued on 4 November 1999 from Candelaria Margarita Tapia Campillay, claiming that the visa applicant lived with her grandmother until 12 August 1987, when the grandmother passed away. She claimed that from that date, the visa applicant lived with her family and had refused to live with her own mother. She claimed that “after a while, we never heard from the mother again, just that she had moved to Argentina”;

▪ Copy and translation by the representative of a statutory declaration issued on 5 November 1999 from Lilian Elizabeth Cuevas Rocco, claiming that she was the visa applicant’s neighbour for many years and that she is aware of the family situation. She claimed that Candelaria Tapia Campillay’s declaration is true;

▪ Copy and translation by the representative of Erlinda Aedlina Aciares Nunez’s death certificate issued on 28 October 1999, stating date of death as 12 August 1987;

▪ Certified copies of her birth certificate issued on 9 February 1999 with translation by the representative, disclosing that her father’s name is Juan de Dios Ahumuda Robles and her mother’s name is Adelina Argelia Hidalgo Asiares;

▪ Certified copies of relevant pages of her passport.’

13 A letter dated 27 October 2003 was sent to the Department by the applicant in which she described her circumstances in Australia and also claimed that ‘in respect of my birth mother, I have not done much to try and find her’.

14 The applicant’s visitor visa application contains a notation made when considering the visitor visa grant, ‘applicant has father stepmother and three sisters in Australia. She lives with her mother in Chile’. The grant of the visa was refused on 12 January 2004.

15 The Delegate of the Minister found that the visa applicant’s natural mother and her mother’s child were overseas near relatives as defined in reg 1.15. The Delegate deemed that these two people ‘appear to still live in the country in which she previously resided before coming to Australia as a visitor’. The Delegate then found that the applicant did not meet the criteria for the grant of a remaining visa relative.

16 The applicant lodged an Application for Review on 6 February 2004. She claimed that she didn’t know the whereabouts of her natural mother and her half-sister, if such a relative existed, and that ‘since my arrival and even before it, I had made no attempts to find them. This is because I did not feel the need or love to do it due to past circumstances.’

17 The Court does not have available to it a transcript of the evidence that was given before the Tribunal at the hearing on 3 August 2004. The Tribunal in its reasons referred to the oral evidence given by the applicant, her father and her step mother and summarised the evidence which the applicant gave as follows:

‘▪ She came to Australia on 17 December 1998 on a tourist visa and has been in Australia since then, only leaving for a few days to New Zealand in 1999.

▪ She last saw her birth mother in 1986 and has had no further contact with her.

▪ She has not done much to look for her. She has no idea where she is. Her aunt had told her that her mother had been in Argentina but had returned to Chile.

▪ Her aunt had also told her that someone had said to her that the visa applicant’s mother had had another child called Elizabeth Zapata but she had not met her and did not know if she existed or not.

▪ She said her father had been living in Australia for about 20 years and was an Australian citizen.

▪ She said that her father had filled in her visitor visa application form and had written that she was living with her mother in Chile. She said that this was a mistake by her father as he had not understood the question.

▪ She said that in an interview with police she had claimed that she had contacted her mother by mobile telephone in Chile but she said that she was referring to her aunt who had brought her up and to whom she referred as mother.

▪ She said that she should be allowed a visa because of her strong family ties in Australia, particularly her father and because she was very happy living in Australia.’

18 The Tribunal summarised the evidence of the applicant’s father and stepmother as follows:

‘Mr Haumaba gave evidence that he had come to Australia in 1985 and mistakenly did not include the visa applicant as his natural child. He received a letter from her in 1994 that her grandmother had passed away and she had lost contact with her mother. He went to Chile in 1995 and filled out the visa application form. He did not understand it very well as it was in English. That is why he had put down that she was living with her natural mother. He did not know whether the mother had had another child. He said he had no idea where the mother was now and where she had been over the past years. The visa applicant’s stepmother, Mrs Haumaba gave evidence that the visa applicant should get a visa because she had been living in Australia for several years and her family was here.’

19 The Tribunal found that the applicant met the requirements of par 1.15(1)(a), and that her father, her nominator, was usually resident in Australia, the criterion in par 1.15(1)(b).

20 Under the heading ‘Whether the Applicant has any overseas near relatives (see subregulation 1.15(2))’ the Tribunal said:

‘The visa applicant claims that she does not know the whereabouts of her natural mother and if such a person exists, her step sister. The evidence before the Tribunal on the existence of a half sister is equivocal as there is no direct evidence of her existence.’

21 After referring to such evidence as there was, the Tribunal said:

‘… the Tribunal finds on balance that a step daughter Elizabeth Zapata did exist …’

and later

‘The Tribunal finds that the visa applicant has 2 overseas near relatives namely her natural mother Adelina Argelia Hidalgo Asiares and her step sister Elizabeth Zapata.’

22 It is a curious feature that the proceedings before the Tribunal and the application in the Federal Court were conducted on the assumption that the applicant’s mother was still alive and was usually resident in Chile.

23 Notwithstanding that the amendments to reg 1.15 were said to be directed at matters of onus of proof, there is nothing in the way the new reg 1.15 is cast to require the applicant to prove the existence of an overseas near relative. The case is very similar in that respect to the factual situation in Scargill v Minister for Immigration (2003) 129 FCR 259 (“Scargill”) where the Full Court (Carr, RD Nicholson and Merkel JJ) said at par 18:

‘It is surprising that no information was sought from the relevant UK authorities to ascertain whether the appellant’s father was still alive. The appellant and his mother simply assumed that to be the case, and the Tribunal has based its finding on that unsatisfactory evidence. Nevertheless, the finding that the father was still alive is a finding of fact for which there was some basis in the material before the Tribunal, and it is not a finding that is open to review. Moreover, the appellant has not challenged that finding.’ (Emphasis added)

24 In this particular case, implicit in the finding of “two overseas near relatives” is a finding that “the applicant’s natural mother is still alive”.

25 The crucial question in this case concerns the application of subregulation 1.15(1)(c)(i).

26 The Tribunal said:

‘To assess this criterion, the Tribunal must first make findings on where the visa applicant usually resided at the time of application and also where the visa applicant now usually resides at the time of the Tribunal’s decision. The Tribunal must also determine where each overseas near relative of the visa applicant resided/resides at these relevant times.’

27 The Tribunal then said

‘The concept of “usual residence” was discussed by the Full Federal Court in Scargill. In that case, the Full Court followed the approach of the High Court in Koitaki [Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241]. The Full Court stated that the concept of “usual residence” has 2 elements: a physical presence; and an intention to treat a place as home for at least the time being but not necessarily forever.

Scargill made it clear that where someone is “usually resident” is a question of fact and that it is open to a decision maker to find that a person who holds a temporary visa is “usually resident” in Australia. The Full Court stated the following at paragraph 27:

‘In the present case, the appellant’s presence in Australia after he left the USA was lawful. He entered Australia on a temporary permit as a visitor, suggesting that at the time of his entry he may not have had a firm intention to reside in the future in Australia. However, after two and a half months, he made an application for a visa which assumes such an intention, and thereafter he lived in Australia with his mother. Had the Tribunal posed the question: ‘Where in that period was his place of abode, where was his home?’ the answer inevitably would have been ‘in Australia at his mother’s place’, and the material before the Tribunal indicated that his only intention was to remain living there.’

28 In respect of the usual residence of the applicant the Tribunal said

‘… There is no evidence before the Tribunal that the visa applicant has any financial interest or maintained a home in Chile or has returned there since coming to Australia in 1998. The evidence before the Tribunal indicates that the visa applicant has developed her life in Australia, having worked part time and now full time with Bendix Business Furniture since 28 August 2003 as evidenced by a reference from that business. She has also stated that she has had a relationship with a boyfriend in Australia for the past 3 years. The Tribunal finds that she has had a pshysical [sic] presence in Australia since she came in 1998 and that she has had an intention to stay in Australia before the time of application and since the time of application. The Tribunal accepts that the visa applicant and her father had an argument in January 2000 which involved a police investigation but accepts that the parties reconciled.

The Tribunal finds that the visa applicant usually resides in Australia.’

29 Concerning the usual residence of the mother the Tribunal found

‘The Tribunal finds that the natural mother usually resides in Chile as that is her last known address and there is no reliable evidence to suggest that she has moved to another country. The Tribunal also finds that the step sister usually resides in Chile as that is her last known address and there is no reliable evidence to suggest that she has moved to another country.’

30 The Tribunal therefore and importantly found

‘Accordingly the Tribunal is satisfied that, at the date of application, the visa applicant resided in Australia, which is a different country to that in which her natural mother and step sister resided. The visa applicant meets subparagraph 1.15(1)(c)(i).’

31 The Tribunal further found that

‘… the Tribunal accepts that the visa applicant has not had any contact with her natural mother or step sister for a reasonable period before making the visa application. The visa applicant meets subparagraph 1.15(1)(c)(ii).’

32 The Tribunal concluded

‘As the Tribunal has found that the visa applicant meets 1.15(1)(a), 1.15(1)(b), 1.15(1)(c)(i) and 1.15(1)(c)(ii), the Tribunal finds that the visa applicant meets regulation 1.15. Therefore, the Tribunal finds that the visa applicant is the remaining relative of an Australian relative, the sponsor, and that she meets clause 835.212.

Based on the evidence discussed above, the Tribunal also finds that, at the time of decision, the visa applicant continues to be the remaining relative of an Australian relative. She therefore meets clause 835.221.’

33 In light of the findings by the Tribunal, the difficulties in this case stem entirely from the way in which the new reg 1.15 is formulated. There is no doubt that the applicant would meet the requirements of the “old policy” as expressed in the old reg 1.15 and that the applicant meets the criteria that are required pursuant to reg 1.15(1)(a) and (b).

34 On the assumption made at every stage in these proceedings, that the applicant has an overseas near relative, namely her mother, who is usually resident in Chile the question is whether the Tribunal committed jurisdictional error in finding that the applicant satisfies subregulation 1.15(1)(c)(i).

35 It seemed to me on one reading of subregulation 1.15(1)(c)(i), that if the applicant usually resided in Australia the applicant would not be able to satisfy the literal terms of subregulation 1.15(1)(c)(i) and therefore would fail.

36 However it was never suggested on behalf of the Minister that usual residence in Australia of an applicant precluded a person from having a remaining relative visa under the current reg 1.15. The contention that usual residence in Australia precludes a person from being a remaining relative is in my opinion totally discordant with the “original policy” that was revealed in the prior reg 1.15.

37 In the view I take of the matter, under the previous regulation where there was an overseas near relative, the usual residence of an applicant had to be different from the usual residence of the overseas near relative. It was the stated intention of the amendments to regulation 1.15 to make plain that the usual residence of the overseas near relative could not be Australia.

38 The words that were in fact adopted do not, in my view, reflect this intention. Looking at the matter in terms of the previous regulation, the subsequent regulation, the observations of the Full Court in Minister for Immigration and Multicultural Affairs v Hughes (1998) 86 FCR 567 (“Hughes”) and the Explanatory Statement, the original policy was intended to be replicated in the new regulation with the further provision that if there had been a change in the country of usual residence of the overseas near relative, that was a matter for the applicant to prove. It was never the intention of the amendments to the regulation to introduce a provision that an applicant would not satisfy the requirements for a remaining relative visa if in fact an applicant for a remaining relative visa was usually resident in Australia.

39 The submissions on behalf of the Minister by Mr Peter Bickford of Counsel directly confront the literal words of Regulation 1.15.

40 It was put directly to him

‘Is it the case…that on the present regulations if a person has a father living in Australia, a mother living in Chile, and the applicant usually resides in Australia, they’re not entitled to a remaining relative visa?’

41 He said ‘provided that their last place of residence before coming to Australia is Chile’.

42 I then asked ‘why is that?’

43 Counsel replied

‘…our case is that Australia is excluded from consideration by reason of the insertion of the words “not being Australia” in sub-regulation 1.15(1)(c)(i) so that you can’t use Australia as the usual – or you can’t find that Australia is the usual place of residence. You must find that it’s another country, a foreign country…’

44 Counsel later reiterated ‘It can’t be Australia’.

45 The contention on behalf of the Minister is that on the proper construction of subpara 1.15(1)(c)(i) it was not open to the Tribunal to find that Australia was the usual place of residence of the applicant and the Tribunal was therefore obliged to find that her usual place of residence was Chile and that that was the same foreign country as the usual residence of her mother and for that reason the applicant was not entitled to a remaining relative visa.

46 The decision of the Full Court in Hughes was delivered on 31 March 1999. The new Regulation 1.15 came into effect on 1 November 1999. Scargill was decided on 3 June 2003, but was a decision based on the provision of Regulation 1.15 before the amendments.

47 Hughes was concerned with the disqualification contained in the then Regulation 1.15(2) which applied where the applicant ‘usually resides in the same country, not being Australia, as an overseas near relative ...’ The Tribunal decided that the evidence before it suggested that the applicant’s father continued to reside in Scotland and therefore the applicant was disqualified under Regulation 1.15(2) from making his application. The Full Court held there was no onus of proof to be discharged by an applicant in respect of the “same residence” criterion. Merkel J (with whom Carr agreed) held that once the qualifying elements are satisfied the criteria will be met unless the disqualifying element of “same residence” is satisfied. The disqualifying element required a positive finding that the Tribunal was satisfied that the applicant usually resides in the same country, not being Australia, as the overseas near relative. Their Honours held that the subregulation was not to be read as requiring disqualification if the applicant has ‘not established to the satisfaction of the Minister … that he … does not usually’ so reside.

48 The Explanatory Statement says that the amendments were made to clarify the question of onus of proof. The obvious intention of the amendments, having regard to the decision in Hughes, was to require an applicant to establish that his usual residence is not the same foreign country where the overseas near relative usually resides. It was not the intention of the amendments, in my opinion, to require an applicant to prove that they had a usual residence in a foreign country and that foreign country was a different foreign country from the usual residence of the overseas near relative.

49 When considering the proper residence of the applicant for the purpose of the Migration Regulations, in this case there is no question of any period of illegal presence in Australia, which was a consideration highly relevant in to the decision of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 56 FCR 512 (“Gauthiez”).

50 Cam v Minister for Immigration and Multicultural Indigenous Affairs (1998) 84 FCR 14 (“Cam”) is a case concerned with the proper construction to be given to the old reg 1.15. In that case, Mansfield J, having adverted to observations by the High Court in Vines v Djordjevitch (1955) 91 CLR 512, said:

‘Although reg 9 is structured firstly with the positive matters required to be found, and then with the disqualifying matters if they are found, in my view they reflect a compendious set of matters of which the respondent, or on review the Tribunal, must be satisfied. They relate to two understandably relevant matters to serve the purpose of the class of visa in question: the presence of close family in Australia, and the absence of close family in the country of citizenship or of residence of the visa applicant. The disqualification as expressed is, in my view, but one of the two relevant states of affairs which reg 9 recognises as significant. In a case where an issue as to whether there is an ‘overseas near relative’ arises, it is my conclusion that the respondent or, on review, the Tribunal is directed by reg 9 that the visa applicant is not entitled to be granted the visa sought unless the respondent or the Tribunal is satisfied, amongst other matters, that there are no overseas near relatives. If it is not so satisfied, reg 9 will operate so as to disqualify the visa applicant from eligibility for that visa.’

51 R D Nicholson J in Hughes referred to the fact that the primary judge, Lee J, disagreed with the approach of Mansfield J in Cam, and Lee J was not in error in the approach he adopted. Merkel J said at [34]:

‘I cannot discern any proper basis for reading the subregulation as requiring disqualification if the applicant has not established to the satisfaction of the Minister or the IRT that he or she does not usually reside in the same foreign country as an overseas near relative.’

52 Scargill was a judgment given on 3 June 2003, but in respect of the operation of the former reg 1.15. The decision of the primary judge in that case was before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 and the primary judge held, without going into the merits, that by s 474(1) of the Act the Tribunal’s decision was not reviewable. The Full Court of the Federal Court concluded that the Tribunal did not apply the proper test of “usual residence” as discussed by the High Court in Koitaki which test refers to a physical presence in a particular place as well as an intention to treat that place as home for at least the time being but not necessarily forever. The Full Court concluded, in par 21

‘We have already observed that the Tribunal did not apply the test propounded in … its reasons in finding that the appellant “usually resides” in the UK. It applied a test that made decisive the combination of three matters, namely that the appellant was born in the UK, that he remained a citizen of the UK, and that by reason of him having a maternal grandparent and an uncle in the UK he had greater ties with that country than the USA. In our opinion, in so deciding, the Tribunal failed to consider the factors of physical residency and intention which are essential elements in the notion of “usually resides”.’

53 In a matter highly relevant to the submissions on behalf of the Minister in the present case, the Full Court recorded at par 28 of its reasons in Scargill

‘Counsel for the respondent [who was the Minister] contends that the Tribunal did not err in leaving out of account consideration of the appellant’s presence in Australia. This submission is based on the following words in reg 1.15(2)(a)(i), namely “An applicant is disqualified if: the applicant usually resides in the same country, not being Australia, as an overseas near relative” (emphasis added), and on the following passage from the judgment of Gummow J in Gauthiez at 521 which, it is contended, reflects those words:

However, I prefer to base my decision upon a more direct ground. It turns significantly upon the legal effect which is to be given, in any proper consideration of the usual residence of the applicant for the purposes of the Regulations, to his illegal presence in Australia for a number of years immediately preceding the application and the decision. It was for the Tribunal to consider whether the disqualification imposed by reg 9 did not apply because, putting aside Australia, as it had to be put aside , the applicant did not usually reside in any country. Rather, as I have indicated, the Tribunal approached its task as if the legislation required a choice to be made between France and Belgium. This is not a case where the error of law was of no significance; it meant that the applicant failed to receive the consideration of his position which the law required (cf Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 265). (Emphasis added)

In our opinion this passage is not directed to the construction of the reg 1.15(2)(a)(i). Australia had to be put aside in that case, not because of the express requirement of the regulation, but because the presence of the applicant in Australia after his temporary entry visa expired was illegal.’

54 The new reg 1.15 is said in the Explanatory Statement to reflect the original policy inherent in the former reg 1.15. The observations of the Full Court in Scargill at [30] is therefore in my opinion pertinent to the resolution of the present matter:

‘It will be noted that in the definition of “overseas near relative” in reg 1.15(3), there is no requirement that a person within paras (a) and (b) is overseas, or not usually resident in Australia. The concluding words of reg 1.15(3) confine the definition of ‘overseas near relative’ to such of those people who are “not a relative of the kind referred to in subregulation (1)”. … [W]e think, the words “not being Australia” are included in subreg (2) to make it clear that an overseas near relative whose place of residence may disqualify an applicant is an overseas near relative who does not usually reside in Australia. We do not think that reg 1.15(2)(a)(i) requires that lawful presence of the appellant in Australia is to be left out of account in considering where the appellant usually resides.’

55 In the present case it was submitted by Mr Bickford on behalf of the Minister that

‘the relevant question to be asked is as at the date of the application and as at the date of the decision, does … the visa applicant usually reside in a country which - other than Australia, which is different from the country in which the overseas near relative resides. So Australia is excluded from the equation. … there cannot be a valid finding that Australia is the usual place [of] residence.’

56 I then asked ‘You’re saying that it’s not open for an applicant here to have a usual residence in Australia.’

57 To which Mr Bickford replied

‘Applying the common law test of usual residence, you might form the view that it is Australia. But the proper construction of the statute says it can’t be Australia, so you must therefore decide, well, what other country is she usually resident in.’

58 The contention by Counsel for the Minister is that the finding by the Tribunal that the applicant usually resides in Australia is ‘ a failure to ask the right question because Australia is excluded.’

59 Mansfield J in Cam observed, in the context where an applicant did not usually reside in Australia, that the terms of the former regulation related to two questions:

‘the presence of close family in Australia, and the absence of close family in the country of citizenship or of residence of the visa applicant.’

60 Accepting that the amendments to reg 1.15 were to maintain and make plain the original policy position, it seems to me that on its proper construction reg 1.15 requires that an applicant for a remaining relative visa have a country of usual residence that is different from the country of usual residence of the overseas near relative and that that country of residence of the overseas near relative cannot be Australia. The words “not being Australia” are properly to apply to the country of usual residence of the overseas near relative.

61 The Tribunal found that the usual residence of the applicant for a remaining relative visa is Australia, and that the usual residence of the overseas near relative is, or is deemed to be by the provisions of reg 1.15(3) of the Regulations, Chile. In my judgment, no error, jurisdictional or otherwise, has been shown in the conclusion by the Tribunal that the applicant meets the criteria for the grant of a remaining relative visa.

62 Notwithstanding the considerable difficulties that are presented by the drafting of the “new” reg 1.15, I accept that the purpose of the amendments was to maintain the original policy position and simply to make it plain the onus of proof particularly in relation to the usual residence of the overseas near relative, and to the requirement that that usual residence cannot be Australia. The application by the Minster for prerogative relief concerning the decision of the Tribunal pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Act must be refused.

63 The application is dismissed with costs to be taxed if not otherwise agreed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment here of the Honourable Justice Spender.

Associate:

Dated: 15 April 2005

Counsel for the Applicant: Mr Peter Bickford

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondent: Ms Angela Julian-Armitage

Solicitor for the Respondent: James Watt & Co Solicitors

Date of Hearing: 4 April 2005

Date of Judgment: 15 April 2005

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