FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 MIGRATION - whether the trial judge erred in holding that the delegate had incorrectly interpreted the applicable law as to the meaning of "wholly or substantially" - meaning of "substantially" - whether the actual provision of support is an essential element of dependency - whether the trial judge erred in holding that the delegate erroneously restricted herself to considering the source of the applicant's financial support in respect of the "lower order needs of life" Commissioner for Superannuation v Scott [1989] 13 FCR 404, followed Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, referred to Chakera v IRT (1993) 42 FCR 525, considered Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418, referred to Minister for Immigration & Multicultural Affairs v Pires [1998] 160 ALR 97, followed Aafjes v Kearney (1976) 50 ALJR 454, referred to Re Mrs B (1984) 6 ALD 609, referred to Moon v Minister for Immigration & Multicultural Affairs [1998] FCA 1762, referred to MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v LAZAR GRAOVAC AND JOVANKA GRAOVAC N 458 OF 1999 N 459 OF 1999 EINFELD, BRANSON & HELY JJ 16 DECEMBER 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 458 OF 1999 N 459 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Appellant AND: LAZAR GRAOVAC AND JOVANKA GRAOVAC Respondents JUDGE: EINFELD, BRANSON & HELY JJ DATE OF ORDER: 16 DECEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed with costs. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 458 OF 1999 N 459 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Applicant AND: LAZAR GRAOVAC AND JOVANKA GRAOVAC Respondent JUDGE: EINFELD, BRANSON & HELY JJ DATE: 16 DECEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT OF JUSTICE EINFELD 1 The facts of these cases are set out in Justice Madgwick's judgment at first instance. For the reasons given by his Honour, I agree that this appeal must be dismissed and that the notice of contention must fail. 2 In most discussions of dependency under this and similar legislation, emphasis is given to the meaning of the qualifying words "wholly", "substantially", "mainly", "partially" and the like. Understandable though that approach is, it sometimes tends to forget that the principal concept is the dependency itself. I agree with Justice Madgwick that whether a person is dependant on another will be a matter for practical and commonsense assessment in the circumstances of each case. 3 In Commissioner for Superannuation v Scott [1989] 13 FCR 404, a Full Court of this Court (Fisher, Spender and Pincus JJ) stated that "dependency" means a "need for support" and that a person does not necessarily cease to have dependency merely because the person bearing the dependency is not satisfying the need at a particular time. In Minister for Immigration & Multicultural Affairs v Pires [1998] 160 ALR 97, Justice Mansfield drew a distinction between the need for financial support, which is dependency, and the actual provision of that support which is not an essential element of dependency. I respectfully agree with this formulation: see also Moon v Minister for Immigration & Multicultural Affairs [1998] FCA 1762. 4 In my opinion, these respondents did not receive attention to their situation by the Minister's delegate fashioned by these concepts. A narrow approach was taken of comparing the financial support they receive from two sources and determining in a far too limited mathematical way which source of support predominated. The problem with this approach was that it constricted the words "wholly or substantially" and quite omitted to consider "dependency" in any real sense at all as required by the regulations. 5 The appeal must be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld. Associate: Dated: 16 December 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 458 OF 1999 N 459 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Appellant AND: LAZAR GRAOVAC AND JOVANKA GRAOVAC Respondents JUDGES: EINFELD, BRANSON & HELY JJ DATE: 16 DECEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT BRANSON AND HELY JJ: 6 The Minister's delegate ("the Delegate") was not satisfied that the respondents were wholly or substantially dependent upon Petar Graovac ("the supporter") for financial, psychological and physical support. The Delegate rejected the claim of financial dependency on the ground that the material support received by the respondents from the refugee centre in which they were residing at the time of the application for a visa outweighed the financial support which the respondents then received from the supporter. Since the refugee camp provided for the majority of the respondents' needs, they could not be substantially dependent on the supporter. 7 At first instance, the parties were agreed that the appropriate meaning of "substantially" in the present context was established by the decision of the Full Court in Commissioner for Superannuation v Scott (1987) 13 FCR 404. Scott rejected a line of authority which held that "substantially", in the phrase "wholly or substantially dependent", signified only that the dependency must be more than trivial, minimal or nominal, and preferred a line of authority that "substantially" meant "primarily, essentially or in the main". 8 Whether a person is wholly or substantially dependent on another is ultimately a question of fact. However, the trial judge found that the Delegate impermissibly foreshortened her enquiry by simply calculating the amount of the financial support provided by the supporter, and determining whether this was outweighed by the pecuniary value of the support provided by the refugee centre, without considering whether the supporter's contribution was essential for the respondent's support. His Honour said: "... in some circumstances, it is appropriate to introduce the concept of essentiality, unconditioned by notions of predominance, to give reasonable meaning to the idea of substantial dependence." His Honour gave as an example the position of A who needs $20 per week for bare survival. A gets $2 per week from B as well as $18 per week from C. In his Honour's view A is substantially dependent on B as well as on C. 9 Whilst we agree that the Delegate impermissibly foreshortened her enquiry by limiting it to a comparison of the monetary value of the respective contributions made by the refugee centre and the supporter to the support of the respondents, we come to that conclusion for a different reason than the reason which appealed to his Honour. In particular we do not agree, with respect, with his Honour's conclusion that the concept of essentiality, unconditioned by notions of predominance, gives reasonable meaning to the idea of substantial dependence. 10 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. 11 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". 12 We respectfully disagree with his Honour's conclusion, in the example referred to in [3] above, that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon C that A is mainly dependent. Whilst B's contribution may be essential to A's support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking. 13 However, in Scott, Fisher and Spender JJ said that a person may be dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other. Thus there may be cases in which a purely quantitative approach will not necessarily determine the issue of dependence. And, in Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97 Mansfield J held that the expression "wholly or substantially dependent" was intended to convey that the visa applicant had a need to rely upon another person for financial support, rather than simply describing the fact that another person was providing that financial support. 14 The issue of substantial dependency is to be determined at the time of decision, but the enquiry is as to the state of affairs subsisting at that point in time which may involve consideration of earlier events, and of future probabilities. In Aafjes v Kearney (1976) 50 ALJR 454, 458 Gibbs J said that the question of whether there is dependence at a particular date is not to be answered by looking only to the circumstances as they existed at that date; past events and future probabilities have to be considered. 15 There was material before the Delegate which suggested that the traditional role of the eldest son in Serbian society is to look after and support his aged parents and disadvantaged brothers and sisters. There was material before the Delegate which might have led the Delegate to conclude, had she considered the question, that until the respondents were forced to flee the family farm in the face of advancing Croatian troops in January 1993, the respondents were substantially dependent on the supporter for financial support, as the farm was their source of income, and it was worked mainly by the supporter and his sisters, as the parents were elderly and unable to endure the physical demands of farming. There was material before the Delegate which was capable of leading to a conclusion that dependence of the respondents upon the supporter continued until he migrated to Australia in 1994. The respondents claimed that the supporter continued to provide financial assistance from Australia, both before and after the respondents moved into the refugee centre in September 1996. In essence the respondents' case before the Delegate was that the supporter both recognised and endeavoured to perform the traditional role of the eldest son in a Serbian society of which the respondents and their supporter were members. Whether that claim was made out would involve amongst other things, a consideration of the impact, if any, of the supporter's migration to Australia upon the relationship which then existed between the respondents and the supporter. 16 In our opinion, the trial judge was correct when he said that the issue of whether the state of affairs which subsisted at the time of decision is one in which the respondents are wholly or substantially dependent upon the supporter must be considered in the light of all of the relevant circumstances. In a case such as the present, to restrict the enquiry to a consideration of the comparative financial contributions of the refugee centre and the supporter to the support of the respondents provides too narrow a focus for a determination of the issue of substantial dependency. 17 In Aafjes the issue was whether a daughter, living with her mother and stepfather, was wholly dependent upon her father at the time of his death. Custody of the daughter was with the mother, but the father was under an obligation to make maintenance payments with respect to the daughter. At p 458 Gibbs J said: "The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father: cf. the cases cited in Kauri Timber Co (Tas) Pty Ltd v Reeman, at p 188. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependant of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father." 18 Given that financial dependency can exist notwithstanding that it is not being met, and given the abnormal conditions subsisting in FRY at the relevant time, a broader consideration of the respondents' financial position and of their personal relationship with the supporter was required, in order to determine whether the status of the respondents at the relevant time was that of persons wholly or substantially dependent on the supporter for financial support. 19 That requires the taking of, or at least giving consideration to, the taking of a longer term view than that adopted by the Delegate. It would invite consideration, for example, of whether the respondents were financially dependent on the supporter prior to their entry into the refugee camp, and whether the circumstances surrounding their stay in that camp produced a fundamental change in that relationship. Whilst the entitlement to remain in such a camp may be of indefinite duration, it is not the expectation of those who provide, or those who use facilities of that nature, that they are a permanent substitute for a normal life. 20 It is easy to imagine a case in which a person who was substantially dependent on another for financial support might be driven by the civil dislocation occurring in FRY to seek the support provided by the charitable organisations conducting a refugee centre as a surrogate for that which would otherwise have been provided by a family member, because, for example, of the impracticability of the family member continuing to provide that support in the circumstances prevailing at the time. In such a case it would be open to the Delegate to conclude that the refugee was wholly or substantially dependent on the family member even though the refugee centre attended to his or her immediate needs. 21 Whether the present is a case of that type is a factual matter for the Delegate to determine, and there may be difficult questions of judgment involved. But it is erroneous to limit the issue of substantial dependency to a mere comparison of the monetary value of the respective contributions to the support of the respondents made by those operating the refugee centre, and the supporter, divorced from the broader picture. Lower order needs 22 The Delegate quoted and applied a Departmental Procedures Advice Manual giving the following advice on assessing dependence: "Dependence relates to 'satisfying lower order needs' that is, those that are required to be sustained, namely food, shelter and minimal clothing. Dependence does not encompass reliance on another person for luxuries and discretionary consumption goods or higher order needs." 23 The phrase "lower order needs" derives from the decision of the Administrative Appeals Tribunal ("AAT") in Re Mrs B (1984) 6 ALD 609, 625. The notion of dependence upon another person for financial support implies a focus upon the basic necessities of life rather than upon luxuries. The evidence before the Delegate was that the funds sent by the supporter were used to buy additional food supplies, fruit or clothes for the children. These are hardly luxury items and the provision of them is not outside the notions of dependence or support. 24 We agree with his Honour's conclusion that a broad practical judgment is required in the circumstances of the particular case as to what is encompassed by the notions of dependence and support. We also agree with his Honour's conclusion that discussion of lower order needs and higher order needs in the context of the circumstances prevailing in a refugee camp in FRY in the period in question suggests that the Delegate was distracted from that task. Notice of Contention 25 The refugee centre and the supporter supplied, or provided the means by which the respondents could acquire, what might be called the basic necessities of life. The supporter's contribution took the form of cash; the refugee centre's contribution was in kind. 26 Whilst it is no doubt right to say, as was said in Chakera v IRT (1993) 42 FCR 525, that the different forms of support referred to in the definition of "dependant" are to be considered separately and disjunctively, it would be extremely artificial to say that the contributions made by the refugee centre and the supporter attract different elements of the definition, when they have the common objective of providing the respondents with the basic necessities of life. 27 No error has been shown in the reasons for decision of the trial judge in this respect. Conclusion 28 The appeal should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and Hely. Associate: Dated: 16 December 1999 Counsel for the Appellant: J Basten QC and N J Williams Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: T Reilly Solicitor for the Respondent: Barlow & Co Date of Hearing: 11 August 1999 Date of Judgment: 16 December 1999