FEDERAL COURT OF AUSTRALIA Naiker v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 888 MIGRATION - appeal from a decision of the Migration Review Tribunal ("MRT") – MRT affirmed decision of Minister's delegate that applicant not entitled to a Family (Residence) (Class AO) visa – privative clause decision – applicant citizen of Fiji – applicant claimed to be a special need relative of her daughter, who is an "eligible New Zealand citizen" – daughter 3 months old at time of application – whether daughter was "settled" for purposes of Migration Regulations 1994 (Cth) Regulation 1.03 – whether MRT incorrectly interpreted the law – whether MRT committed a jurisdictional error by identifying a wrong issue or asking itself a wrong question WORDS & PHRASES – "settled" Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 474(2) Migration Regulations 1994 (Cth) Reg 1.03 Re Minister for Immigration & Multicultural Affairs; Ex Parte Cohen (2001) 177 ALR 473 applied Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 3 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to Director-General v SHR (2001) 27 Fam LR 670 considered Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 considered Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 referred to Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 applied Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re S (2000) 142 ACTR 12 applied NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 followed NALINI DEVI NAIKER v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 426 OF 2002 HELY J 18 JULY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 426 OF 2002 BETWEEN: NALINI DEVI NAIKER APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 18 JULY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be identified as NALINI DEVI NAIKER. 2. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 426 OF 2002 BETWEEN: NALINI DEVI NAIKER APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE: 18 JULY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision of the Migration Review Tribunal ("the MRT") dated 15 April 2002 in which the MRT affirmed the decision of the Minister's delegate that the applicant is not entitled to the grant of a Family (Residence) (Class AO) visa. It is common ground that the MRT's decision is a privative clause decision as defined in s 474(2) of the Act. 2 The applicant applied for the visa on 30 October 1998. The visa class has since been repealed, but continues to be applicable to applications for the visa made before the date of repeal: Re Minister for Immigration & Multicultural Affairs; Ex Parte Cohen (2001) 177 ALR 473 at pars [23] – [29]. 3 The only subclass that was relevant to the application was subclass 806, and then only with respect to the "special need relative" ground. A criterion to be satisfied at the time of application for the grant of a subclass 806 visa, and at the time of the decision, is clause 806.213 which relevantly provided as follows: "The applicant is … a special need relative of another person who: (a) is a … settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa." 4 The applicant claimed to be a special need relative of her daughter, the "nominator", who was born in New Zealand on 8 July 1998, and who was thus three months old when she "nominated" the applicant for the grant of the visa. However, it was not contended that the application for a visa was in any way invalid on this account: cf Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39. 5 The MRT accepted that the nominator was an eligible New Zealand citizen as provided by Regulation 1.03 of the Migration Regulations 1994 (Cth) ("the Regulations"). Thus the remaining issues were whether: (i) the applicant was a "special need relative" of the nominator; (ii) the nominator was a settled eligible New Zealand citizen; and (iii) the nominator was usually resident in Australia. 6 The term "special need relative" is defined in Regulation 1.03, which relevantly provides as follows: "'Special need relative' in relation to … an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen… if: (a) the citizen … has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen … personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen …, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia." 7 The term "settled" is defined in Regulation 1.03 relevantly as follows: "'settled' in relation to … an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period." 8 The applicant is a citizen of Fiji who arrived in Australia in 1991 on a student visa. She was married to Mr Ashveen Roy Prasad ("her husband") on 30 November 1994 in Lautoka, Fiji. Her husband is also a citizen of Fiji who has resided in Australia since 1988, having entered Australia on a student visa. The immigration status of the applicant and of her husband since their respective arrivals in this country has been that of lawful non-citizens, and although they have been in Australia for a long time, they have not, at any stage, had the right to permanent residence in Australia. The entitlement of the applicant and her husband to remain in Australia has been referrable to student visas and/or bridging visas, which are essentially transitory in nature. During the time that the applicant has been in Australia she has returned overseas on fourteen occasions, and those visits have been predominantly to her home country of Fiji. 9 As stated above, the nominator was born in New Zealand on 8 July 1998, whilst the applicant was in New Zealand visiting an aunt. The nominator's birth in New Zealand entitled her to New Zealand citizenship, and in the first week of her life her parents organised a birth certificate and a New Zealand passport so that their daughter could travel back to Australia with them as the applicant's husband (who had gone to New Zealand for the birth) had to return to work and study. The applicant, her husband, their son and the nominator returned to Australia on 14 July 1998. 10 The MRT said that the "critical issue" for the MRT was whether the nominator was at the time of the application a settled eligible New Zealand citizen as required by the Regulations. The MRT thus identified issue (ii) referred to in par [5] above as the critical issue, although the ground on which the Minister's delegate had refused the application was that the applicant was not a "special need relative" of the nominator. However, the MRT was entitled to consider the issues which the application presented in whatever order it considered to be appropriate. 11 At RD 209 the MRT stated the "critical issue" in the following terms: "… whether the nominator's period of residency in Australia at the time of the visa application indicated a sufficient degree of continuity to be described as 'settled'." (emphasis added) 12 As the nominator was a mere infant, and incapable of making choices about her place of residence at the time of the application and was in the daily care and control of her parents, the MRT said that it looked at the status of her parents at the time of the visa application. 13 At RD 209, the MRT then said: "Their status in Australia was at that time and continues to be temporary and they had no right to permanent residence in Australia. The nominator's parents time in Australia has been punctuated by uncertainty inclusive of attempts to obtain permanent residence. The Macquarie dictionary third edition definition of 'settled' is 'established or fixed'. The nominator, at 3 months and 18 days a mere infant, could not be described as a New Zealand eligible citizen whose residency in Australia was established or fixed at the time of the visa application. The Tribunal once again because of her age makes this finding with reference to her parents. In looking at the review applicant and her husband the Tribunal does not consider that their life in Australia could be described as established or fixed as the only status they have ever held in this country has been temporary albeit for an extended period of time." (emphasis added) 14 In the passage quoted above, the MRT reasoned as follows: - the ordinary (dictionary) meaning of "settled" is "established or fixed"; - the life of the nominator's parents in Australia could not be described as "established or fixed" as the only status that they have ever held in Australia has been temporary, albeit for an extended period of time; - therefore the nominator's parents (and hence the nominator) were not "settled" at the time of the visa application. At RD 210 the MRT made it clear that by that stage in the decision-making process, it had found that the nominator was not a "settled eligible New Zealand citizen", as, for the stated reasons, she was not "settled". 15 At RD 213, in a section headed "FINDINGS", the MRT returned to the issue of "settled", although as stated above, it had found by RD 210 that the nominator was not "settled". At RD 213 - 214 the MRT said: "19. The Tribunal finds that the nominator at the time of the visa application on 30 October 1998 was not a settled eligible New Zealand citizen as required by regulation 1.03 of the Migration Act 1958. At the time of the visa application the nominator was 3 months and 18 days old and had resided in New Zealand for the first seven days of her life as her mother had given birth in that country whilst on a visit. She then returned with her parents to Australia when she was seven days old. The Tribunal finds that the nominator's period of residency at the time of the visa application was not indicative of a sufficient degree of continuity and stability to be described as settled. 'Settled' in relation to an eligible New Zealand citizen means lawfully resident for a reasonable period. The nominator was lawfully resident, however, was it for a reasonable period? The Department's Procedures Advice Manual (PAM 3) provides that 'a period of at least two years would generally be regarded as a 'reasonable period'. Her period of residency in Australia at the time of application falls far short of Departmental policy guidelines. As the nominator was an infant at the time of the visa application and was clearly incapable of making an informed decision about her place of residence the Tribunal has looked at her parents who provided the nominator with daily care and control. Were the nominator's parents 'settled' in Australia for the purposes of the legislative definition? As stated in these reasons the Tribunal finds that her parents were not settled albeit they had resided in Australia for an extended period. Their status throughout this period was lawful but temporary in nature and they never had the right to permanent residence in Australia." (emphasis added) 16 I should interpolate that it was common ground at the hearing before me that the MRT's reference to PAM 3 is an error as PAM 3 contains no illumination in relation to the notion of "settled". However, MSI 196 (Migration Series Instructions), which is itself a policy document, provides in clause 5.4.4: "Regulation 1.03 defines 'settled' as meaning lawfully resident in Australia for a reasonable period. Under policy, it can be said that in normal circumstances two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis." 17 In par 19 of its reasons, in the sentences italicised in par [15] above, the MRT correctly states the meaning given to the term "settled" by the Regulations, and correctly poses the question as being whether the nominator was resident in Australia for a reasonable period. 18 However, in the applicant's submission, the MRT did not set out to provide an answer to that question. Instead, as the sentence commencing "As stated in these reasons" establishes, the MRT repeated and slightly expanded upon its earlier finding that the lives of the nominator's parents could not be described as "established or fixed" in Australia because of their immigration status, and therefore the parents (and hence the nominator) were not settled in Australia. 19 In the applicant's submission, the proper approach to the meaning of the term "settled" as defined in Regulation 1.03 is whether the nominator (or her parents) were "lawfully resident in Australia for a reasonable period" at the time of the visa application. The applicant submitted that, instead, the MRT erroneously asked itself whether the life of the nominator's parents in Australia was "established or fixed" at the time of the visa application. On this basis it is submitted that the MRT has erred in law by incorrectly interpreting the law. Further it is submitted that the MRT has committed a jurisdictional error by identifying a wrong issue or asking itself a wrong question: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-22. 20 The applicant's submissions accept that it was appropriate for MRT to consider the status of the nominator's parents as a factor in deciding whether the nominator was "settled". That reasoning process has been applied in other contexts. For example, in order for a child abduction to fall within the scope of the Convention on Civil Aspects of International Child Abduction, the child must have been "habitually resident" in a contracting state immediately before the abduction. In Director-General v SHR (2001) 27 Fam LR 670 at 688, Chisholm J referred with approval to a set of principles stated by Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993. The principles commenced: "1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves …" In understanding the point made by Waite J, regard must be had to the second of the principles enunciated by his Honour as follows: "2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration. All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled." 21 The respondent accepts that if the MRT identified a wrong issue or asked itself a wrong question then there is a jurisdictional error, subject to the effect of the privative clause. However, in the respondent's submission: · the MRT addressed the question of whether or not the nominator had been in Australia for a reasonable period at the time of the application; · this is essentially a factual judgement for the MRT as the words are ordinary words used in a non-technical sense; and · as such, the MRT's finding that the nominator had not been in Australia for a reasonable period is a factual matter raising no issue of law: see, for example, Cohen (supra) at pars [34] – [37]. 22 In the respondent's submission the MRT did apply the definition of "settled" in Regulation 1.03 to the applicant in the passages which I have emphasised in par [15] above. In addition, it dealt with an argument raised by the applicant's advisers that the immigration status of the nominator's parents was also relevant to whether the nominator was "settled". Further, the respondent submitted that the legal nature, as well as the extent in time of the nominator's parents' periods of residency in Australia, were not irrelevant considerations as the statutory scheme does not prohibit these matters being considered in deciding what is a "reasonable period" for the nominator to have lawfully resided in Australia: see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 (FC) at [131] – [140], where the High Court decisions on relevant/irrelevant questions are collected. The MRT was entitled, in the respondent's submission, to take into account the parents' visa history and immigration status in applying the definition of "settled" to the nominator, particularly as the position of the parents had been put forward as a relevant matter by the applicant's advisers. 23 A letter dated 29 October 1998 from the applicant's solicitors in support of her application was before the MRT. That letter included the following: "The phrase 'a reasonable period' is not defined in the regulations or in the Migration Act 1958. We note that DIMA policy guidelines for decision-makers state that generally two years of residency of the nominator in Australia immediately before the time of application will usually satisfy the definition of 'settled'. However, a period of less than two years will be accepted where there is strong proof of settlement or where other important circumstances apply. Despite the policy guidelines of the PAM, there is no requirement in law that the period of time that a nominator must satisfy before he or she can be found to be settled is two years. One must assess whether or not a nominator satisfies the definition of 'settled' on a case by case basis. … In the present case, the nominator is a child and is a New Zealand citizen. Her parents are citizens of Fiji and have no right to reside permanently in New Zealand merely because their daughter is a New Zealand citizen. Similarly, the nominator does not have an automatic right to reside permanently in Fiji merely because she is a New Zealand citizen. Her parents returned from New Zealand to Australia and intend on her remaining permanently in Australia and to become an Australian citizen. The nominator's parents have been living in Australia for the last ten years and consider Australia to be their home, even though they are holders of a temporary visa, that visa being a student visa. They are also resident for taxation purposes." 24 The submission which was put to the MRT was that a period of less than two years residence on the part of the nominator at the time of the application should be accepted as demonstrating that the nominator was "settled" in Australia as there is strong proof of "settlement" arising from the fact that the nominator's parents have been in Australia for the last ten years and consider Australia to be their home. 25 It is impermissible to construe a definition by reference to the term defined: Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404, 419. "Settled" is given a particular meaning by the Regulations, whether or not it accords with its ordinary meaning. If the MRT applied the dictionary definition to the nominator, and thereby misunderstood the nature of the opinion which it had to form, then it has committed a jurisdictional error. But in Cohen (supra) at [35] McHugh J cautioned that Courts should be slow to find that an erroneous finding of fact, or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted jurisdictional error. And the Court is not concerned with "looseness in the language – nor with unhappy phrasing" of the reasons of an administrative decision-maker; the reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. 26 The period during which the nominator had been present in Australia in the care of her parents was ascertained and not the subject of dispute. At the time of the application, it was from 14 July 1998 to 30 October 1998. The MRT had to decide whether this was residence in Australia for a reasonable period, and in the passage of the MRT's decision to which I earlier referred, it at least posed that as the question for its determination. 27 The ordinary meaning of reside (Macquarie Dictionary) is to dwell permanently or for a considerable time. The meaning of the term "resident" may depend very much on the context in which the term appears, but when appearing in a context such as the present, should be interpreted to mean "ordinarily", "habitually" or "usually" resident: see Re S (2000) 142 ACTR 12, 14. 28 Hence factors other than the mere length of stay in Australia can be germane to the question of whether a person has been resident in Australia for a reasonable time. Elements of choice are or may be involved, and the nominator was incapable of making decisions for herself as to where she would live, and how long she would stay there. Those decisions were made for her by her parents. 29 It is common ground that the MRT was entitled to have regard to the position of her parents. But in looking at the parents' position, the MRT was not required to confine its consideration to whether the parents were "lawfully resident in Australia for a reasonable period in October 1998", because that was not the question which the MRT had to determine. 30 The applicant's advisers had put forward the strength of the parents' connection with and commitment to Australia as being relevant to whether the nominator met the criteria. For that reason alone, the MRT was entitled to consider whether the parents' life in Australia could be described as established or fixed. If their life in Australia was established or fixed, that may be relevant in deciding whether the nominator's stay in this country was that of a person resident here for a reasonable period. 31 Whilst, if I may say without wishing to give offence, there is some confusion in the MRT's reasons, a beneficial reading of those reasons falls short of establishing that the MRT so misunderstood the question it had to decide as to result in a jurisdictional error. 32 In any event, it is common ground that the decision in question is a privative clause decision within the meaning of s 474(2) of the Act. 33 In NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713, Allsop J decided that the privative clause applies even to cases where the decision under review involves a jurisdictional error. The applicant submits (and the written submissions are with the papers) that the privative clause has no application in those circumstances. Nonetheless, had I come to a different conclusion on the issue of jurisdictional error, I would have followed the decision of Allsop J, as it was reached after a comprehensive consideration of the authorities, unless and until the Full Court otherwise determines. 34 The application should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 18 July 2002 Counsel for the Applicant: Mr B Zipser Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 July 2002 Date of Judgment: 18 July 2002