FEDERAL COURT OF AUSTRALIA

Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2.    The notice of contention be upheld and the appeal dismissed, with costs.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from the judgment and orders of the Federal Circuit Court of Australia given and made on 19 June 2015 dismissing, with costs, the application made to that Court on 8 April 2015. That application sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) given on 10 March 2015 affirming the decision of the delegate of the Minister made on 4 February 2014 not to grant the appellant an Other Family (Residence) (Class BU) Aged Dependent Relative (subclass 838) visa under s 65 of the Migration Act 1958 (Cth). The appellant applied for the visa, a permanent visa, on 8 June 2012.

The facts

2    The Tribunal found the following facts.

3    The appellant was born in Uruguay. At the time of the Tribunal’s decision, the appellant was 85 years old. He was receiving a pension from Uruguay in the sum of approximately USD1,000 per month.

4    The appellant had travelled to Australia on tourist visas on a number of occasions, the most recent being from 11 December 2011.

5    The appellant’s sponsor was one of his two nieces, Mrs Olga Arvelo, who came to Australia in 1977 and became an Australian citizen on 15 November 1995. At the time of the Tribunal hearing, Mrs Arvelo was 69 years old and lived in Australia.

6    The appellant’s second niece, Mrs Arvelo’s sister, Ms Lacroix, was also an Australian citizen and lived in Australia.

7    At the time of the application for the visa on 8 June 2012, the appellant was sponsored only by Mrs Arvelo.

8    The appellant did not have a spouse or de facto partner.

9    The appellant was old enough to be granted an age pension under the Social Security Act 1991 (Cth).

10    After the appellant arrived in Australia in December 2011, his basic needs for food, clothing and shelter were met equally by his nieces, Mrs Arvelo and Ms Lacroix. The appellant was living in both his nieces’ homes and while he was staying there, the niece he was with at that time would meet his expenses. The appellant was still receiving his pension from Uruguay of USD1,000 per month which he used for his own purposes, including medical expenses.

11    For the period before the appellant came to Australia in December 2011 he was living in an apartment in Uruguay owned by Ms Lacroix. Although it was claimed Mrs Arvelo did provide some financial assistance towards the maintenance of this apartment, there was no evidence which showed any transfer of money or financial support given by Mrs Arvelo to meet the appellant’s basic needs.

12    Mrs Arvelo owned an apartment in Uruguay next door to the one owned by Ms Lacroix in which the appellant was living. This apartment was occupied by Mrs Arvelo’s sister-in-law who was then married to the appellant, purportedly to be his carer. The costs of this apartment were met by Mrs Arvelo but the Tribunal was not satisfied that Mrs Arvelo’s contribution to the accommodation of the appellant’s “wife/carer” was a contribution to the appellant’s basic needs for food, clothing and shelter.

13    The Tribunal was not satisfied that at any time while the appellant was residing in Uruguay he was wholly or substantially reliant upon Mrs Arvelo to meet his basic needs for food, clothing and shelter.

14    There was no evidence that while the appellant was residing in Uruguay Mrs Arvelo or her sister made any contribution to the appellant’s financial support for his basic needs for food and clothing. The appellant’s pension appeared to have been able to meet the appellant’s expenses for food and clothing.

15    The Tribunal found that Mrs Arvelo provided only minimal contribution to meet the appellant’s basic needs of food, clothing and shelter while he was living in Uruguay. The Tribunal found that the appellant was wholly or substantially reliant upon Ms Lacroix to meet his basic needs for shelter. However, he was able to rely upon his own pension to meet his basic needs for food and clothing.

16    In summary, the Tribunal found that over the period after the appellant arrived in Australia on a subclass 676 Tourist visa, the appellant’s basic needs for food, clothing and shelter had been met equally by Mrs Arvelo and her sister, Ms Lacroix. Accordingly, over this period the appellant had not been wholly or substantially reliant upon Mrs Arvelo. Further, over the period the appellant was resident in Uruguay Mrs Arvelo made only a small, if any, contribution and therefore he was not wholly or substantially reliant upon her.

The legislation

17    The relevant provisions of the Migration Act on which the appellant relied were as follows:

54  Minister must have regard to all information in application

(1)    The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)    For the purposes of subsection (1), information is in an application if the information is:

(a)    set out in the application; or

(b)    in a document attached to the application when it is made; or

(c)    given under section 55.

(3)    Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55  Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)    Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

18    The relevant provisions of the Migration Regulations 1994 (Cth) were as follows, at the time of the appellant’s application for the visa.

19    In reg 1.03, the phrase “aged dependent relative”, in relation to a person who is an Australian citizen, was defined to mean a relative who:

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

(b)    has been dependent on that person for a reasonable period, and remains so dependent; and

(c)    is old enough to be granted an age pension under the Social Security Act 1991.

20    In reg 1.03, “relative” was defined to mean, so far as relevant:

(b)     …

(i)     … ; or

(ii)    a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

21    Regulation 1.05A defined the adjective “dependent”, so far as relevant, as follows:

(1)    … a person (the first person) is dependent on another person if:

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

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

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

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

22    Regulation 1.20 provided as follows, so far as relevant:

1.20    Sponsorship undertakings

(1)    The sponsor of an applicant for a visa is a person (except a person who proposes on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) who undertakes the obligations stated in subregulation (2) in relation to the applicant.

(2)    Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:

(a)    if the application is for a permanent visa … — the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:

(i)    if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa; or

(ii)    …;

including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period;

    …

23    The criteria for a subclass 838 visa were, so far as relevant:

Subclass 838    Aged Dependent Relative

838.1    Interpretation

838.111    In this Part:

Australian relative means a relative of the applicant who is an Australian citizen…

Note    aged dependent relative, dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03.

838.2        Primary criteria

Note    The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

838.21        Criteria to be satisfied at time of application

838.211    The applicant is:

(a)    the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

(b)    a person who:

(i)    is not the holder of a substantive visa; and

(ii)    immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and

(iii)    satisfies Schedule 3 criterion 3002.

838.212    The applicant is an aged dependent relative of an Australian relative.

838.213    The applicant is sponsored:

(a)    by the Australian relative, if the Australian relative:

(i)    has turned 18; and

(ii)    is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(iii)    is usually resident in Australia; or

(b)    …

838.22        Criteria to be satisfied at time of decision

838.221    The applicant continues to satisfy the criterion in clause 838.212.

838.222    The Minister is satisfied that an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

838.223    The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010 and 4019.

…

838.227    The sponsorship mentioned in clause 838.213 has been approved by the Minister and is still in force.

838.228    The Minister is satisfied that:

(a)    the applicant is the holder of a valid passport that:

(i)    was issued to the applicant by an official source; and

(ii)    is in the form issued by the official source; or

(b)    it would be unreasonable to require the applicant to be the holder of a passport.

…

838.4    Circumstances applicable to grant

838.411    The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

Note    The second instalment of the visa application charge must be paid before the visa can be granted.

838.5        When visa is in effect

838.511    Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

838.6        Conditions:    Nil.

The reasoning of the Tribunal

24    The decision of the Tribunal essentially involved the following reasoning.

25    Having found that at the date of the application the only sponsor of the appellant was Mrs Arvelo, in order to meet the time of application criteria the appellant was required to meet the definition of an aged dependent relative of Mrs Arvelo. It was not necessary to consider whether Ms Lacroix could now be included as a sponsor of the appellant and whether the appellant met the definition of an aged dependent relative of Ms Lacroix with Mrs Arvelo.

26    The appellant met subparagraph (a) and subparagraph (c) of the definition of “aged dependent relative” at the time of application and at the time of decision.

27    The appellant did not meet subparagraph (b) of the definition of “aged dependent relative” at the time of application. This was because, the Tribunal said, any assessment of a reasonable period when the appellant had been dependent upon Mrs Arvelo must include a period of time prior to his arrival in Australia, when he was resident in Uruguay. The reason for this conclusion was that the appellant entered Australia on a subclass 676 Tourist visa and stated that he genuinely intended to visit Australia temporarily. It appeared, therefore, that the care arrangements were unusual and planned to be only temporary and that his normal arrangements were what he had in Uruguay. These were arrangements which had been in place for some time and Mrs Arvelo would have had the opportunity, while the appellant was resident in Uruguay, to demonstrate that the alleged relationship of dependence was real and enduring, and more than just supporting the appellant whilst he was visiting Australia on a Tourist visa.

28    The Tribunal was not satisfied that at any time the appellant was residing in Uruguay he was wholly or substantially reliant upon Mrs Arvelo to meet his basic needs for clothing and shelter.

29    The Tribunal said that it had considered the whole of a reasonable period prior to the filing of the application. Over the period after the appellant arrived in Australia on a subclass 676 Tourist visa the Tribunal found that the appellant’s basic needs for food, clothing and shelter had been met equally by Mrs Arvelo and her sister and that accordingly over that period the appellant had not been wholly or substantially reliant upon Mrs Arvelo. Further, over the period the appellant was resident in Uruguay Mrs Arvelo made only a small, if any, contribution and therefore the appellant was not wholly or substantially reliant upon her.

30    As to the claim that the appellant was incapacitated for work due to the total or partial loss of his bodily or mental functions, because the Tribunal had found that the appellant was not wholly or substantially reliant upon the sponsor for financial support for a reasonable period at the time of the application, the appellant did not meet the definition of a dependant of the sponsor in reg 1.05A(1)(b).

31    There was also a question of Ministerial intervention under s 351 of the Migration Act. Under that section, if the Minister, acting personally, thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 349 another decision, more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. By s 351(7) the Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

32    As to this, the Tribunal said as follows, at [32]:

The [appellant]’s agent provided submissions in the letter to the tribunal dated 2 February, 2015. In those submissions, the following was argued:

•    …

•    If the tribunal did not remit the matter to the department the [appellant] would ask the tribunal to support an application for Ministerial intervention.

33    In addressing the question of Ministerial intervention, the Tribunal said, at [67], that the appellant had requested the Tribunal to support an application for Ministerial intervention and said that no further submissions were provided by the appellant’s agent after the hearing in support of this request. Then, at [68], the Tribunal said that it was not satisfied that there were such unique or exceptional circumstances in the appellant’s case as compared to circumstances for applicants for the same visa subclass which would lead the Tribunal to support an application for Ministerial intervention.

The reasoning of the Federal Circuit Court

34    The grounds of the application to the Federal Circuit Court were as follows:

1.    The Tribunal misapplied the Law.

Particulars

•    The Tribunal found that “There is no provision within the regulations for the applicant to be sponsored by more than one person.”

•    A clear application of the Acts Interpretation Act 1901 s. 23 leads to the conclusion that there can be multiple sponsors.

•    The Tribunal failed to properly apply the Migration Regulations reg. 1.05A(1)(b).

2.    The Tribunal applied the wrong test.

Particulars

•    The Tribunal considered whether the Applicant’s time in Australia was not a ‘reasonable period’ because it represented an insignificant part of his overall life, rather than considering for what part of his life expectancy he had been dependent on his sponsor.

•    The Tribunal found that a ‘reasonable period’ was longer than the period in which the applicant was in Australia but failed to find what a ‘reasonable period’ was.

3.    The Tribunal failed to consider all the claims made by the Applicant.

Particulars

•    The Tribunal found “The applicant requested the Tribunal support an application for Ministerial Intervention. No further submissions were provided by the applicant’s agent after the hearing in support of this request.”

•    Further submissions were made on 2 February 2015.

“Ministerial Intervention

If the Tribunal is unable to find that Mr Armado (sic) Fernandez meets the prescribed criteria for an Aged Dependant (sic) Relative Visa I submit that, taking the above matters into account, this is an appropriate matter for the Tribunal to refer to the Minister for Immigration & Border Protection to consider the exercise of his powers under the Migration Act 1958 s. 391 (sic).”

35    Section 23 of the Acts Interpretation Act 1901 (Cth) provided:

In an Act:

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

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

36    Section 2(2) of the Acts Interpretation Act provides:

However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

37    The judge of the Federal Circuit Court (the primary judge) held that, as a matter of construction, the reference to “an Australian relative” in cl 838.21 in Sch 2 to the Migration Regulations was not to more than one Australian relative and there was no error by the Tribunal by reason of focusing on the niece that completed the application at the time of and in support of the appellant’s application for the Other Family (Residence) (Class BU) visa (at [7]). The primary judge said, at [6]:

The difficulty with [the appellant’s] construction in relation to reg. 1.05A is that the language used clearly identifies a level of specificity in respect of “the other person”, and that the requirements to meet the definition of being dependent “on another person” articulate specific requirements in respect of “the other person”. In my opinion, that language manifests a contrary intention when one takes into account the use of a definite article in respect of “other person”. This contrary intention is also supported by the use of other person in cumulative requirements of paragraph (a), namely the requirement that the reliance on the other person is greater than the reliance by the first person on any other person.

38    The primary judge rejected the appellant’s submission that because, prior to the determination of the review an application was completed by the second niece, there was an error by the Tribunal in failing to deal with the application of reg 1.05A by taking into account both nieces in determining whether the appellant was dependent on another person (at [7]). Reliance was placed by the primary judge on Huynh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 122; 152 FCR 576 at [28] as supporting the proposition that the contrary intention was manifested so as to displace the rule as to number in s 23 of the Acts Interpretation Act. There, Lander and Rares JJ said:

[28]    When one turns to reg 1.05A(1), it is noticeable that it prescribes clear objective criteria to be met for dependence to be established. First, reg 1.05A(1) stipulates that the child (who is the “first person” for present purposes) must be, at the time at which consideration as to his or her position is being given, “wholly or substantially” reliant on the parent for financial support. Second, that degree of reliance is required to have been “for a substantial period immediately before that time”. Third, the financial support being provided must be to meet the child’s basic needs in three respects: food, shelter and clothing. Last, the child’s reliance on the parent must be greater than his or her reliance on any other person or source of support for financial support to meet those three basic needs.

39    The primary judge also rejected the submission that the Tribunal misapplied reg 1.05A(1)(b) on the basis that there was medical evidence that the appellant was incapacitated. The primary judge said that, for the reasons he had earlier given, the Tribunal was correct in holding that reg 1.05A(1)(b) applied to the other person, in the singular, and did not have application to both nieces.

40    In relation to ground 2, the primary judge rejected the appellant’s submission that a reasonable period should take into account the age of the appellant and his remaining life expectancy in the context of determining whether or not what was identified was a reasonable period (at [9]-[12]). The primary judge also rejected the related submission that the proposition stated by the Tribunal that reasonable period “must include a period of time prior to his arrival” was an erroneous understanding of the requirement for a reasonable period and that there was no requirement under the statutory provisions that the reasonable period must be assessed by reference to a period of time prior to arrival in Australia. The primary judge held that the Tribunal was referring to the circumstances of the present case in the assessment of a reasonable period and that the appellant’s submissions in relation to ground 2 were an impermissible challenge to a finding of fact made by the Tribunal as to a reasonable period in the circumstances of this case (at [15]).

41    As to ground 3, the primary judge held (at [20]) that, notwithstanding the error by the Tribunal in [67] of its reasons that no submissions were provided by the appellant in support of the application for Ministerial intervention, it was clear that the Tribunal did have regard to those submissions and that this was not an error in the application of any statutory provision nor a failure to have regard to and to consider the appellant’s claims. The Tribunal addressed the appellant’s claims and “the delegate” was not under any obligation to refer the matter to the Minister, and there was no jurisdictional error by reason of not doing so (at [21]).

Notice of appeal

42    The grounds of appeal to this Court were as follows, as written:

1.    The Court misapplied the provision of the Acts Interpretation Act 1901.

Particulars

The Court erred in finding that the terms of the Migration Regulations reg 1.05(1) were not caught by the Acts Interpretation Act 1901 s. 23 because the words “any other person” constituted a contrary intention to the rule that “words in the singular number include the plural number and words in the plural number include the singular.”

[2.]    The Court erred in finding that the Tribunal had considered all the claims of the Applicant.

Particulars

The Court found that where submissions and evidence presented by an applicant refer to dual considerations to be taken into account, it is enough for the Tribunal to take them into account for one only of the considerations.

43    The respondent Minister filed a notice of contention on the following ground:

1.    The Court should have found that it was immaterial whether more than one person could sponsor the Appellant because Migration Regulations 1994 (C’th) cll 838.21 and 838.22 require the sponsor at the time of the application to be the same as the sponsor at the time of the decision. The Migration Review Tribunal made a finding of fact that, at the time of the application, the Applicant had only been sponsored by one person.

The submissions of the appellant

44    With respect to the first ground of appeal, the appellant submitted that reg 1.03 and reg 1.05A should be construed subject to s 23 of the Acts Interpretation Act and all the words in the singular should be read as in the plural. He submitted he would then meet the terms of reg 1.03 as he was dependent on one or both of his nieces, who were Australian citizens, at all relevant times. He submitted that the primary judge erred in his construction of the Migration Regulations (at [6] of the primary judge’s reasons, set out at [37] above) as all the terms relied upon as manifesting a contrary intention must themselves be read subject to the Acts Interpretation Act. Additionally, the appellant submitted, the terms relied upon by the primary judge were insufficient to manifest a contrary intention.

45    In oral submissions, the appellant submitted that reg 1.05 was capable of being read as referring to other persons, plural, and that that reading was consistent with or supported by the policy of the particular regulatory regime because otherwise there could not be an aged dependent relative as defined where the visa applicant was wholly or substantially reliant on more than one relative for financial support.

46    With respect to the second ground of appeal, the appellant submitted that the Tribunal had misrepresented the appellant’s submission to the Tribunal that, if the appellant were not found to meet the prescribed criteria for an aged dependent relative visa, this was an appropriate matter for the Tribunal to refer to the Minister to consider the exercise of his powers under s 351 of the Migration Act, which the Tribunal summarised (at [32], in a dot point list of the appellant’s submissions in his letter to the Tribunal dated 2 February 2015) as a submission that: “If the Tribunal did not remit the matter to the department the applicant would ask the tribunal to support an application for Ministerial intervention”. The appellant submitted that the primary judge erred in finding (at [20]) that this dot point summary of the submission clearly showed a reference to the request by the appellant to support an application for Ministerial intervention, and that:

In these circumstances, notwithstanding the error in para 67 [of the Tribunal’s reasons], in saying that no submissions were provided by the applicant in support of the Ministerial intervention, it is clear that the Tribunal did have regard to those submissions and that this was not an error in the application of any statutory provision. Further, it is not an error from which I infer that the Tribunal had failed to have regard and to consider the applicant’s claims.

47    In oral submissions, the appellant referred to the paragraph of his solicitors’ post-hearing written submission to the Tribunal dated 2 February 2015 that, for the reasons set out in the preceding four pages of submission, this was an appropriate matter for the Tribunal to refer to the Minister under s 351 of the Migration Act. Although I have set out the paragraph at [34] above, I repeat it for ease of reference:

Ministerial Intervention

If the Tribunal is unable to find that Mr Armado (sic) Fernandez meets the prescribed criteria for an Aged Dependant (sic) Relative visa, I submit that, taking the above matters into account, this is an appropriate matter for the Tribunal to refer to the Minister for Immigration & Border Protection to consider the exercise of his powers under the Migration Act 1958 s. 391 (sic).

48    The appellant submitted that this was a request as contemplated by subheadings 10, 11 and 16 of that part of Procedures Advice Manual 3 (PAM3) which dealt with “Minister’s guidelines on ministerial powers”, including s 351. The relevant parts read as follows:

Cases which are to be brought to my attention

10    Public interest

The public interest may be served through the Australian Government responding with care and compassion where an individual’s situation involves unique or exceptional circumstances.

I may only exercise my public interest powers if it is in the public interest to do so in each case. What is and what is not in the public interest is a matter for me to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

I will generally only consider the exercise of my public interest powers in cases which are referred to the department for my consideration by a review tribunal or which exhibit one or more unique or exceptional circumstances. Where a person is in the community (that is, is not in immigration detention), however, I generally do not wish to consider their case unless they hold a bridging or other visa, or have an application for a bridging visa before the department.

11    Referral by a review tribunal

When a review tribunal member considers a case should be brought to my attention, they may refer the case to my department and their views will generally be brought to my attention using the process outlined in section 16 Requests for the exercise of my public interest powers and section 17 Initial requests for the exercise of public interest powers. …

…

16     Requests for the exercise of my public interest powers

…

A request will be initiated by the department where a Tribunal has referred a case for my attention.

…

49    The appellant also submitted, originally, that PAM3 was made under s 499 of the Migration Act, which conferred a power on the Minister to give binding written directions to a person or body having functions or powers under the Migration Act if the directions were about the performance of those functions or the exercise of those powers. In written submissions filed, by leave, after the hearing of the appeal the appellant accepted that the guidelines did not have the force of law as a guideline issued under s 499. Nevertheless, the appellant submitted that the guidelines were issued by the Minister. The appellant also drew attention to a March 2012 Tribunal Guideline 15, which stated, at [5], that members should have regard to the ministerial guidelines on s 351 available in PAM3, when considering whether or not a case should be drawn to the attention of the Minister. That Tribunal Guideline also stated, at [8], that the circumstances which the member considered warranted the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the department and, at [9], that if an applicant requested a member to refer a case to the department and the member decided not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

50    The appellant submitted that where the Minister issued guidelines on the way a matter was to be dealt with and the Tribunal issued guidelines requiring a member to have regard to those guidelines, then the member of the Tribunal was obliged to have regard to those guidelines.

51    The appellant submitted that the request made by his solicitors’ post-hearing written submission to the Tribunal dated 2 February 2015 was not for the support of the Tribunal but was for the Tribunal to refer the matter itself to the Minister. The appellant submitted that the primary judge erred in this respect at [19] of his judgment. The appellant also submitted that the primary judge erred in concluding that the Tribunal did, relevantly, have regard to that part of the submission to it. The appellant submitted that the mention, in the last bullet point at [32] of the Tribunal’s reasons, of the 2 February 2015 submissions did not suffice to show that the Tribunal had considered the claim when, in the part of its reasons headed “Consideration of Claims and Evidence”, the Tribunal said, at [67], that no further submissions were provided by the appellant’s agent after the hearing in support of the request to the Tribunal to support an application for Ministerial intervention.

52    The appellant submitted that his complaint was not only that the Tribunal fundamentally misunderstood the request to refer the matter to the Minister, but also that everything which was put in support of that request was ignored because the Tribunal said that no further submissions were provided. The appellant also submitted that the Tribunal misapplied the relevant part of PAM3 by addressing only “unique or exceptional circumstances” rather than the broader concept of the public interest.

53    On this basis, the appellant submitted that the Tribunal failed to consider all the claims that were put before it. The appellant again called in aid ss 54 and 55 of the Migration Act as requiring the Tribunal to take this matter into consideration, the request and the grounds for it being contained in the post-hearing letter to the Tribunal dated 2 February 2015. The appellant submitted that if a request such as this was made to the Tribunal then the Tribunal had to consider that request and must, because of the operation of s 499, consider the terms in the relevant part of PAM3.

54    In response to the Minister’s notice of contention, the appellant submitted that the Minister contended that there was only ever one sponsor because there was only ever one “sponsorship form” submitted at the time of the application, but, the appellant submitted, there was no prescribed form to be a sponsor for an aged dependent relative and, at all times, the appellant maintained that he was, and remained, dependent financially and in respect of accommodation on his two nieces. The appellant, therefore, at all times claimed to have two sponsors.

55    In further oral submissions, in relation to the Minister’s notice of contention, the appellant referred to reg 1.20 and, in relation to the finding of the Tribunal that there was only one sponsor at the date of the visa application, submitted there was no prescribed form for a sponsorship and that the finding of who was a sponsor to ground the finding that there was a sponsorship was a jurisdictional fact. The appellant also submitted that the Tribunal was wrong to conclude as a fact that the only sponsor of the appellant at the time of his visa application was Mrs Arvelo. The appellant referred to [54] of the Tribunal’s reasons as constituting a finding that Ms Lacroix was also a sponsor at the relevant time. The appellant also submitted that ss 54 and 55 of the Migration Act solved the problem as the sponsorship form which was later completed by Ms Lacroix formed part of the application by virtue of s 54(2)(c).

The submissions of the Minister

56    The Minister submitted that the appellant’s notice of appeal must be dismissed because the Tribunal had not committed any jurisdictional error and the primary judge had not committed any appellable error, and the primary judge’s decision to dismiss the application for judicial review of the Tribunal’s decision should also be affirmed on the ground in the Minister’s notice of contention.

57    The Minister submitted, in response to the appellant’s first ground of appeal, that the construction of reg 1.03 contended for by the appellant must be rejected because, as the primary judge held, on a proper construction the Migration Regulations manifested a contrary intention (s 2(2) of the Acts Interpretation Act). The Minister submitted the primary judge had correctly held, (at [6]-[7]), in relation to reg 1.05A that the language used clearly identified a level of specificity in respect of “the other person”, and that the requirements to meet the definition of being dependent “on another person” articulated specific requirements in respect of “the other person”, and the use of the definite article in respect of “the other person” also manifested this contrary intention. Regulation 1.05A manifested a contrary intention “in relation to the rule as to number in s 23” of the Acts Interpretation Act (s 2(2) of the Acts Interpretation Act). The Minister submitted there was nothing erroneous about this construction of the Migration Regulations; no appellable error was committed. The primary judge was correct to find there was no error committed by the Tribunal in focusing on the niece who had completed the Form 40 at the time of and in support of the appellant’s visa application.

58    In oral submissions on this ground, the Minister said that the primary judge had been referred to no authority on this point and that although Huynh had been mentioned to the primary judge, that was in the context of the meaning of the word “necessary” in reg 1.20.

59    In response to the appellant’s second ground of appeal, the Minister submitted that the difficulty with this claim was that the Tribunal clearly did have regard to the submissions made by the appellant, as the primary judge pointed out. No “further” submissions were provided after the hearing in support of the request for Ministerial intervention, other than those set out in [32] of the Tribunal’s decision. In other words, the Minister submitted, the Tribunal was saying that the agent’s post-hearing submissions merely repeated the request regarding Ministerial intervention. Those written submissions did not provide any further detail other than to repeat the request that the Tribunal support such an application. The Minister submitted there was no jurisdictional error on the part of the Tribunal in its conclusions at [67]-[68], nor was there any error in the application of any statutory provision, as the Tribunal’s support or otherwise for Ministerial intervention was not relevant to the discharge of the Tribunal’s duty of review under the Migration Act. There was no appellable error in the conclusion reached on this matter by the primary judge at [20] of his reasons.

60    In oral submissions on this ground the Minister submitted that El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; 142 FCR 43 was authority for the proposition that PAM3 was not a binding direction made under s 499. In that case, Gray J said, at [45]:

In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

61    The Minister submitted in this respect that the Tribunal’s support or otherwise for Ministerial intervention was not relevant to the discharge of the Tribunal’s duty of review under the Migration Act. In written submissions filed, by leave, after the hearing of the appeal, the Minister submitted that “the consideration by the Tribunal of the request for a referral to the Minister was not a necessary statutory function of the Tribunal’s jurisdiction to determine the review under Pt 5 of Div 2 of the Migration Act. Consequently, the submission went, even if (in some way) the Tribunal did fail to have regard to the guidelines in PAM3, this was not something that was an error going to the exercise of the Tribunal’s jurisdiction under the Migration Act.

62    In his notice of contention the Minister submitted that the decision of the primary judge should be affirmed on the ground that it was immaterial whether more than one person could sponsor the appellant because cll 838.21 and 838.22 required the sponsor at the time of the application to be the same as the sponsor at the time of the decision. The Minister submitted that, although the judge of the Federal Circuit Court did not deal with it, this point was in fact argued in that Court. That is, in the proceeding before the primary judge the Minister had made the argument that it was immaterial whether more than one person could sponsor the appellant because cll 838.21 and 838.22 required the sponsor at the time of the application to be the same as the sponsor at the time of the decision. The Tribunal had made a finding of fact that at the time of the application, the appellant had only been sponsored by one person.

63    Whether or not the Migration Regulations could be construed in the way submitted by the appellant was not relevant, the Minister submitted, to the question of whether the Tribunal had committed jurisdictional error. This was because the Tribunal was correct to find that the appellant had to be sponsored and meet the definition of “aged dependent relative”, “at the time of the application” as required in cll 838.212 and 838.213 of Sch 2 to the Migration Regulations.

64    The Minister submitted there was no provision in the Migration Regulations for a “sponsor” in relation to a subclass 838 visa to change or vary between the time of the application and the time of the decision. This was because on an ordinary reading of the time of application and time of decision criteria, the sponsor at the time of the decision had to be the same person as at the time of the application. For example, the Minister submitted, cl 838.221 could only be satisfied if the sponsor at the time of the application was the same as the sponsor at the time of the decision.

65    Therefore, the Minister submitted, the Tribunal’s conclusion that it would only consider whether the appellant met the definition of “aged dependent relative” with respect to Mrs Arvelo rested on the fact that she was the only sponsor named “at the time of the application” and this was the basis for the Tribunal’s conclusion from its findings at [37]-[40] of its reasons.

66    In oral submissions on his notice of contention, the Minister submitted that only one sponsor was proffered at the time of the application for the visa and Ms Lacroix provided the undertaking that was required in the definition of sponsor only on 11 February 2015 whereas the appellant’s visa application was submitted on 8 June 2012. The Tribunal’s finding of fact, the Minister submitted, was not a jurisdictional fact which the Court should decide for itself.

Consideration

67    On an appeal such as the present, this Court does not have jurisdiction to review the merits of the decision of the Tribunal.

Ground 1 and the notice of contention

68    In my opinion, there is considerable force in the respondent Minister’s notice of contention. Because, as a matter of fact found by the Tribunal, at the date of application there was only one sponsor, no error was shown in the course taken by the Tribunal, at [41] of its reasons, that it was not necessary to consider further whether Ms Lacroix may now be included as a sponsor of the appellant. Thus the correctness of the first two sentences of [41] of the Tribunal’s reasons:

There is no provision within the regulations for the applicant to be sponsored by more than one person. There is no provision for a change of sponsor after the application has been filed.

does not arise.

69    In my opinion, the appellant’s attack on the Tribunal’s finding in this respect fails. The appellant’s submission was that because he was dependent, in a non-technical sense, on more than one relative it followed that he had more than one sponsor. I reject this submission. In my opinion, merely because a person is providing some financial support does not mean that reg 1.20(2) is satisfied.

70    The appellant also put that ss 54 and 55 of the Migration Act resolved any difficulty in this respect, but I would not construe those sections as overriding the specific requirement of cl 838.21 that a criterion to be met at the time of the application for the visa is that the visa applicant is sponsored by the relative. Sections 54 and 55 do not deal with the issue of whether or not a criterion is fulfilled at the time of the application.

71    As to the submission that whether or not a person is a sponsor is a jurisdictional fact and so a fact for the Court to decide for itself, I see no basis for that conclusion. Even if it were correct, I would decide on the evidence that at the time of the application for a visa the appellant had only one sponsor, Mrs Arvelo. At that time, only Mrs Arvelo, and not Ms Lacroix, was the person who had undertaken the obligations stated in reg 1.20(2) in relation to the appellant.

72    It follows that the notice of contention should be upheld and the first ground of the notice of appeal does not arise and should be dismissed.

73    I note that [51] of the Tribunal’s reasons seems to involve construing the expression “dependent on that person for a reasonable period, and remains so dependent” as involving a comparison between the normal and the temporary. On that basis, and if it were relevant to do so, I would not accept the approach of the primary judge which was to say that this was merely fact-finding by the Tribunal. A question of construction appears to be involved in the Tribunal’s approach.

74    However, in order for the appellant to succeed on this point, if it were relevant, he would have to show that the conclusion in [59] of the Tribunal’s reasons involved a misconstruction, in context, of the words “substantially reliant upon the sponsor” in relation to the period after the appellant arrived in Australia. As I have said, the findings by the Tribunal were that after the appellant arrived in Australia he was wholly reliant on his two nieces and equally reliant on each of them for financial support to meet his basic needs for food, clothing and shelter.

75    In Commissioner for Superannuation v Scott [1987] FCA 79; 13 FCR 404 at 408 the Full Court (Fisher and Spender JJ, Pincus J agreeing) said that the word “substantially” had the meaning, in relation to a person in the expression “wholly or substantially dependent”, that that person was primarily, essentially or in the main dependent upon another person.

76    In Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690, the Full Court was concerned with the definition of “dependent” in reg 1.03 of the Migration Regulations, the word being defined to mean “wholly or substantially dependent on another person for financial, psychological or physical support”. Branson and Hely JJ said as follows, at [10]-[11]:

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

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

77    It follows, by reference to the notion of predominance involved in the statutory words, which the appellant accepted in the course of argument as a matter of construction, and the absence of predominance on the facts of the present case, that there was no material legal error in the Tribunal’s reasons on this point.

Ground 2

78    As to the second ground of the notice of appeal, it is, at best, cryptically expressed.

79    However, it appears from the written submissions that it is the question of Ministerial intervention, dealt with by the Tribunal at [67]-[68] of its reasons, which is said to arise under this ground. It is a ground which was barely developed in the appellant’s written submissions.

80    As to the appellant’s initial reliance on s 499 of the Migration Act as founding a duty on the Tribunal to consider the issue of Ministerial intervention, I would follow El Ess to conclude otherwise. The decision in El Ess was followed in this respect by Besanko J in Shi v Minister for Immigration and Border Protection [2015] FCA 131; 231 FCR 354 at [31].

81    It has not been shown by the appellant that what the Tribunal said about Ministerial intervention was relevant to the discharge of its functions of review under the Migration Act. Put differently, I am not persuaded that the Tribunal’s referral or non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Migration Act. Although detailed submissions were not made by either side on this point, I reach this conclusion by reference to ss 476(1), 476(2)(d) and 474(7)(a) of the Migration Act and to the reasoning in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 at [45]-[48] and [100], and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [46], [50]-[52], [100] and [118]-[119]. That reasoning pointed out the exceptional, personal and non-compellable nature of powers such as those conferred by s 351.

82    In relation to guidelines generally, I note that in Australia the law has not reached the point applied in Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546 at [30]-[31], that is, that the individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute, subject to the qualifications, first, that a policy should not amount to a fetter on the discretion of decision-makers and, second, that a decision-maker need not follow his or her published policy if there are good reasons for not doing so. Further, the interpretation of process instructions was treated as a matter of law. Compare Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189, considered by me in Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279 at [59]-[60]. I also note that in the present case there is no claim of denial of procedural fairness by reference to the guidelines or instructions to which the appellant referred.

83    There was therefore no material error on the part of the Tribunal or on the part of the primary judge and this ground fails. In so concluding, if the question of Ministerial intervention were within the Tribunal’s duty of review, I observe that I might well have considered that the Tribunal’s exercise of its function miscarried, primarily on the basis that it fundamentally misunderstood the application that had been made to it which was that the Tribunal itself refer the matter to the Minister.

Ground 1 – Acts Interpretation Act

84    As to the question of the applicability of s 23 of the Acts Interpretation Act, in my opinion, a consideration of it should await a case in which it necessarily arises and where the point is fully argued.

85    I was referred to no authorities.

86    Section 23 of the Acts Interpretation Act would not apply directly to a regulation and it would also be necessary to refer to s 13(1)(a) of the Legislative Instruments Act 2003 (Cth).

87    If I were required to deal with the point, contrary to the apparent approach of the primary judge, I would proceed by reference to authority which establishes that “the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality”: Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 (PC) at 656. I would also proceed by reference to Sin Poh Amalgamated (HK) Ltd v Attorney-General (Hong Kong) [1965] 1 WLR 62 where the Privy Council held that a power “to nominate and appoint commissioners … for the purpose of … conducting any enquiry” included a power to appoint a sole commissioner and said, at 66, that the mere reference to the plural in the legislation was not sufficient to show a “contrary intention”. In Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430, Burchett J, with whom Shepherd and Beaumont JJ agreed, cited Sin Poh Amalgamated for the proposition that the application of s 23 of the Acts Interpretation Act is not easily excluded.

88    In Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; 170 FCR 105 at [14], a Full Court applied s 23 of the Acts Interpretation Act to reg 1.15 of the Migration Regulations which defined “remaining relative” as follows:

1.15    Remaining relative

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

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

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

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

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

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

…

89    The Full Court in Sherzad reasoned as follows, at [11]-[14]:

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

In any Act, unless the contrary intention appears:

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

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

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

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

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

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

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

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

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

90    The primary judge was not taken to these authorities. As to Huynh, while it is a decision of the Full Court, it does not refer to s 23 of the Acts Interpretation Act.

91    As presently advised, I see nothing in the text or context of reg 1.05A of the Migration Regulations, dealing with whether a person is dependent on another person, which provides a contrary intention to the application of s 23. Neither, as presently advised, do I see such a contrary intention in the text or context of the provisions in Sch 2 to the Migration Regulations dealing with an aged dependent relative subclass 838 visa.

92    As to the Tribunal’s reasoning at [41] that there is no provision within the regulations for the applicant to be sponsored by more than one person, as presently advised I am not persuaded of the correctness of that view. It seems to me to be at least possible to read reg 1.20(1) as providing that the sponsor [or sponsors] of an applicant for a visa is a person [or are persons] (except a person [or persons] who proposes [or who propose] on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) who undertakes [or who undertake] the obligations stated in subreg (2) in relation to the applicant.

Conclusion

93    I uphold the notice of contention; ground 1 of the notice of appeal does not arise and I reject ground 2. The appeal must be dismissed, with costs.

Associate:

Dated:    20 November 2015