Jankovic, Bozidar & Anor v Minister for Immigration & Ethnic Affairs [1995] FCA 178

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) No. G661 of 1994 ON APPEAL FROM A DECISION OF A JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: BOZIDAR JANKOVIC First Appellant LJUBICA KUGA Second Appellant AND MINISTER FOR IMMIGRATION, AND ETHNIC AFFAIRS Respondent Coram: O'Loughlin, Lindgren & Sackville JJ. Place: Sydney Date : 3 March 1995 REASONS FOR JUDGMENT THE COURT: The first named appellant in these proceedings, Mr Bozidar Jankovic, applied on 24 September 1992 for a preferential family visa (code 104). The second named appellant is his sister, Mrs Ljubica Kuga. She was in 1992, and remains, an Australian citizen. Mrs Kuga sponsored her brother's application for the visa upon the premise that he was her last remaining relative outside Australia. In 1992 Mr Jankovic was a resident of the former republic of Yugoslavia. He and his wife had divorced five years earlier and the two daughters of their marriage, who in 1992

were aged 10 and 7, resided with their mother in Yugoslavia. On 2 March 1993, in Belgrade, a delegate of the respondent Minister for Immigration and Ethnic Affairs rejected the application. That decision has since been affirmed on review by the Migration Internal Review Office, the Immigration Review Tribunal and, more recently, by a judge of this court. These proceedings are by way of an appeal from the judgment below. The regulations under the Migration Act 1989 that were in force at the time when the application was made by Mr Jankovic have since been repealed, with effect from 1 February 1993, by the Migration (1993) Regulations, Statutory Rules 367 of 1992. However, reg8.2 of those last mentioned regulations provide, with some qualifications that are not germane to these proceedings, that the repealed regulations continue to apply to an application for a visa or entry permit that had been made prior to 1 February 1993. References hereafter to "the regulations" will therefore be references to the repealed regulations in their application to the circumstances of Mr Jankovic. The success of Mr Jankovic's application for a preferential family visa was dependent upon him satisfying the prescribed criteria in relation to that class of visa. In his case, the criterion of relationship that had to be satisfied as between him as an applicant for the visa and his sister as the person in Australia undertaking to provide his sponsorship was that of a "remaining relative". This is the consequence of reading in combination reg34A, reg41 and item 2 of part 3 of the second schedule of the regulations. The expression "remaining relative" was defined in reg9 of the repealed regulations as follows: "(1)An applicant for a visa or entry permit is a remaining relative for the purposes of these Regulations if the applicant has a relative who: (a) is: (i) a brother, sister or parent; or (ii)a step-relative, within 1 of those degrees of relationship; of the applicant; and (b) is: (i) an Australian citizen; or (ii)an Australian permanent resident; and (c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2). (2) An applicant is disqualified if: (a) the applicant or the spouse (if any) of the applicant: (i) usually resides in the same country, not being Australia, as an overseas near relative; or (ii)has had contact with an overseas near relative during a reasonable period preceding the application; or (b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or (c) the applicant is a child who: (i) has not turned 18; (ii)has been adopted by an Australian citizen or an Australian permanent resident (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-relative, within 1 of those degrees of relationship; 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)." In considering the family circumstances of the two appellants and the application of the former reg9 to them, it is apparent that there is a primary satisfaction of subreg9.1, in that Mr Jankovic, as the applicant for the visa was, unless otherwise disqualified, a remaining relative because he had, in Mrs Kuga, a sister who was an Australian citizen who usually resided in Australia. The disqualifying events are those that are set out in subreg9.2. The event that was held against Mr Jankovic by both Tribunals and in the court below was the classification of each of his two children as being a "non-dependent child" and thus an "overseas near relative". In adapting the language of reg9(2)(a)(i) of the regulations, Mr Jankovic was disqualified because he usually resided in the same country as his two non-dependent children. The proper interpretation of "non-dependent children" as used in reg9 is, of course, at the core of this appeal; it is common ground that none of the other disqualifying events applied to Mr Jankovic. Before turning to this question of interpretation, it must be mentioned that there was material in the papers and there were findings of fact by the Immigration Review Tribunal that pointed to Mr Jankovic maintaining contact with his children and giving them a measure of financial, emotional and social support. As a consequence of that finding there were grounds for arguing, in a practical sense, that the children were, to a degree, financially, emotionally and socially dependent on their father. The term "non-dependent child" was not defined in the regulations. There were, however, definitions of "dependent" and "dependent child". These two definitions were as follows: "'dependent', in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support; 'dependent child', means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child: (a) who: (i) has not turned 18; and