FEDERAL COURT OF AUSTRALIA Prasad v Minister for Immigration and Citizenship [2007] FCA 1739 VEENA DEVI PRASAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL QUD 174 OF 2007 LOGAN J 14 NOVEMBER 2007 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 174 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: VEENA DEVI PRASAD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 14 NOVEMBER 2007 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 174 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: VEENA DEVI PRASAD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 14 NOVEMBER 2007 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Veena Devi Prasad (Mrs Prasad) is a national of Fiji. She entered Australia lawfully on a student visa on 24 May 1998. She has remained here ever since. 2 On 27 September 2001 Mrs Prasad, together with her husband, Mahendra Prasad (Mr Prasad) and their two children, Shelvin Amitesh Prasad and Moreen Vineeta Prasad, applied for a visa known as a "remaining relative" visa. She claimed to be the "remaining relative" of her sister, Rina Josephine Richards, an Australian citizen. 3 The visa application was refused by a delegate of the First Respondent on 3 July 2002. 4 Mrs Prasad sought the review by the Migration Review Tribunal (the Tribunal) of the refusal decision. A decision by the Tribunal to affirm that refusal decision was set aside on judicial review by the Federal Magistrates Court and the matter remitted to the Tribunal to decide the review application according to law. 5 On 29 May 2006 the Tribunal again decided to affirm the visa refusal decision. Once again Mrs Prasad sought to challenge the Tribunal's decision by way of judicial review proceedings in the Federal Magistrates Court. On this occasion the challenge failed. On 23 May 2007 her application was dismissed by that Court. It is from that decision that she appeals to this Court. The effect of s 25(1AA)(a) of the Federal Court of Australia Act 1976 is that this Court's appellate jurisdiction falls to be exercised by a single judge. 6 Before the Federal Magistrates Court the challenge turned on whether the Tribunal had misinterpreted reg 1.15(1)(c)(ii) of the Migration Regulations 1994 (the Regulations) in the form that regulation took on the date when the visa application was made. A new reg 1.15 has since been substituted in the Regulations for that which was in force at the time when Mrs Prasad made her visa application, see Migration Amendment Regulations 2005 (No. 8) (SLI 221 of 2005), reg 3 and Schedule 7, which relevantly commenced on 1 November 2005. A feature of the new reg 1.15 is the omission of an absence of contact prior to the making of the visa application with an "overseas near relative". References to the Regulations in these reasons for judgement are to the Regulations as they stood at the time when the visa application was made. 7 That ground of challenge was maintained and by leave refined before this Court. In addition, a further ground was pursued. This further ground raised the issue as to whether the Tribunal had erred by failing to consider the period to which reg 1.15(1)(c)(ii) of the Regulations directed attention, assuming that this item did indeed fall for its consideration. The Minister, through his counsel, very properly did not oppose either the refinement of the ground of challenge below or its supplementation by a further ground. 8 I recite the bases of challenge in greater detail later in these reasons but first it is necessary to detail the relevant parts of the Regulations which then governed eligibility for the visa sought. 9 The nature of the visa application made by Mrs Prasad was such that the then relevant sub-class under the Regulations was sub-class 835 – Remaining Relative. An applicant for such a visa had to satisfy a number of criteria. One criterion, which had to be satisfied as at the time the application was made, was that the applicant was a "remaining relative" of an Australian citizen. 10 The term "remaining relative" was then defined by reg 1.15 as follows: (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 (d) the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; and (e) if the applicant is a child who: (i) has not turned 18; and (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas — at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months. (2) In this regulation: overseas near relative, in relation to an applicant, means a person who is: (a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse (if any); or (b) a child (including a step-child) of the applicant or of the applicant's spouse (if any), being a child who: (i) has turned 18 and is not a dependent child of the applicant or of the applicant's spouse (if any); or (ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant's spouse (if any) — other than a relative of that kind who: (c) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (d) is usually resident in Australia. (3) For the purposes of paragraphs (1) (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country. 11 Mrs Prasad did have at least one "overseas near relative", her husband's mother, who lived in New Zealand. 12 In light of the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo [2005] FCAFC 192it was common ground that reg 1.15(1)(c)(i) of the Regulations had no application to Mrs Prasad's circumstances. That was because she was an Australian resident at the time of the visa application. 13 The controversy before the Federal Magistrates Court was whether, on its true construction, reg 1.15(1)(ii) had any application to Mrs Prasad, given the conceded inapplicability to her of reg 1.15(1)(c)(i). Were item (ii) inapplicable, the Tribunal had necessarily erred in law in at least purporting to consider whether it was satisfied that she met the criterion it specified. The Tribunal had stated that it was not satisfied that Mr Prasad did not have contact with his mother within a reasonable time before the visa application. 14 The magistrate's view of the construction of reg 1.15(1)(c)(ii) was that it "stands alone as a criterion to be satisfied even when, as in this case, sub-regulation (c)(i) does not apply". 15 In this Court, the appellant criticised this view of the meaning of reg 1.15(1)(c)(ii) contending that each paragraph of reg 1.15(1) set out one "related and integrated" criterion. It was submitted that sub-paragraph (c) identified a particular type of "overseas near relative" and the quality of the association between that overseas near relative and the visa applicant. Thus the reference to "that relative" in reg 1.15(1)(c)(ii) was said to be a reference to the relative described in reg 1.15(1)(c)(i). As a further ground, by way of refinement and reinforcement of that submission, it was contended that such a conclusion was dictated by the internal use of the conjunctive word "and" between items (c)(i) and (c)(ii). 16 For the Minister it was submitted that the magistrate's view of the construction of reg 1.15(1)(c)(ii) was correct. Attention was drawn to Elliott v Minister for Immigration and Multicultural Affairs and Another [2005] FCAFC 22 in which the meaning of "contact" for the purposes of reg 1.15(1)(c)(ii) and how absence of the same might permissibly be demonstrated was considered initially by R D Nicholson J [2006] FCA 67, R D Nicholson J, 9 February 2006 (corrigendum 22 March 2006), unreported and later by the Full Court (2007) 156 FCR 559. The submission was made that both at first instance and on appeal in that case the reasons of the Court had been predicated on the proposition that it was necessary to satisfy reg 1.15(1)(c)(ii) even in those cases whereby, in light of a visa applicant's Australian residence and the Full Court's decision in Hidalgo, it was unnecessary for that visa applicant to satisfy reg 1.15(1)(c)(i). That is certainly a feature of the reasons for judgement both at first instance and on appeal in Elliott, although, as was acknowledged for the Minister, it was not made controversial in that case that satisfaction of reg 1.15(1)(c)(ii) was rendered unnecessary by an inapplicability to a visa applicant of reg 1.15(1)(c)(i). It is unsurprising therefore that there is no consideration in that case of the inter-relationship between the two items within reg 1.15(1)(c). The point is therefore free from earlier judicial consideration. 17 Sub-regulation 1.15(1) is governed by an overarching conditional clause, "if the Minister is satisfied that". Two of the criteria which form the specified subjects for Ministerial satisfaction are themselves internally governed by a conditional clause. Paragraph (c) is one and paragraph (e) is the other. In paragraph (e) it is tolerably clear that the criterion specified in item (ii) only becomes applicable if item (i) is applicable. Thus, if the applicant is a child who has turned 18, paragraph (e) is completely inapplicable. 18 It is contended on the part of the appellant that a like conclusion should be reached in respect of reg 1.15(1)(c). I disagree. The drafting style differs as between par (e) and par (c). Unlike in paragraph (e), the structure is not such that item (ii) necessarily only becomes applicable if item (i) is satisfied. It is not a feature of the definition of "overseas near relative" in reg 1.15(2) of the Regulations that, where a visa applicant usually resides otherwise than in Australia, a person can be an "overseas near relative" only if he or she resides in yet another overseas country, i.e. in a third country. Were it intended to restrict the application of reg 1.15(1)(c) only to those "overseas near relatives" who usually reside in such an overseas country one would have expected to find such a qualification of the term "overseas near relative" where it appears in the conditional clause that opens that paragraph. 19 A more natural reading of reg 1.15(1)(c) is that it is directed to engendering Ministerial satisfaction with respect to two separate subjects in relation to each and any "overseas near relative", whether that relative usually resides in a third country, a "geographic" subject and the contact, if any, that the visa applicant or his or her spouse had with that relative within a reasonable time prior to the making of the visa application, a "quality of contact" subject. 20 The role that the conjunctive word "and' plays within reg 1.15(1)(c) is to indicate that there are two items of information sought in respect of each "overseas near relative", not that the two items are interdependent, i.e. not to indicate that item (ii) is cumulative upon item (i). In each item, as a matter of construction, the expression "that relative" refers to the term "overseas near relative" that appears in the conditional clause that opens paragraph (c). If it transpires that the visa applicant or that person's spouse happens usually to reside in Australia all that means is that it is unnecessary to engender Ministerial satisfaction in respect of one of the items specified in reg 1.15(1)(c), not that this paragraph has no application whatsoever. 21 When it is recalled that the title of the definition for which reg 1.15 makes provision is "remaining relative" and that this definition, in turn, gives meaning to a term that is central to a visa class of that same name it seems unnecessarily restrictive, if not improbable, that quality of association information would be confined just to an "overseas near relative" who usually resides in what I have termed a third country. Rather, it seems a more likely construction that the humane end of uniting in Australia an "Australian relative" as defined in Migration Regulations 1994, (Cth) S 2, subs (835), p 835.111 and his or her "remaining relative" as defined is served by Ministerial satisfaction as to a lack of contact with any "overseas near relative", wherever residing overseas, within a reasonable time prior to the making of a visa application. In effect, such satisfaction would serve the purposive end of eliminating some other country as a place in respect of which it might be expected that resident status would be sought or at least of highlighting that the "Australian relative" was not the only person with whom the visa applicant had contact. 22 It follows that I agree with the construction of reg 1.15(1)(c) favoured by the magistrate. 23 The other challenge made to the Tribunal's decision assumes the correctness of the construction of reg 1.15(1)(c) favoured by the magistrate but contends that the reasons of the Tribunal disclose a failure on the part of the member constituting it to direct attention to contact during the period with which reg 1.15(1)(c)(ii) is concerned namely, within a reasonable time prior to the making of the visa application. 24 The Ministerial satisfaction that is a feature of the conditional clause that opens reg 1.15(1) means that this sub-regulation makes that satisfaction the relevant "jurisdictional fact", rather than the objective existence of the criteria specified in the paragraphs which follow. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611Gummow J (at 651) observed of this type of provision: "A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution. This is established by a long line of authority in this Court which proceeds upon the footing that s 75 is a constitutional grant of jurisdiction to the Court."- footnote references omitted. In later describing,Eshetu at 652-653, [136], the manner in which decisions made under provisions of this type might be judicially reviewed and the difficulties that can be presented in any such review his Honour drew attention to the following observations made by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." (emphasis added) 25 In effect then, the appellant's contention is that it is evident from the Tribunal's reasons that it misdirected itself to the subject of Ministerial satisfaction for which reg 1.15(1)(c)(ii) provides. 26 It is incumbent to approach any such challenge with a reminder of what was said in the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] 185 CLR 259 concerning an administrator's reasons namely that, "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". 27 To give context to the submission that the Tribunal did not address itself to the subject of satisfaction specified in reg 1.15(1)(c)(ii) of the Regulations it is necessary to excerpt a part of the Tribunal's reasons: (48) However, the question arises as to whether the visa applicant or her spouse has had contact with any other overseas relatives who live outside Australia. Accordingly, the Tribunal needs to assess this question in relation to the visa applicant's parents and the spouse's mother. (49) At hearing the visa applicant stated that Mr Prasad sometimes talks to his mother in New Zealand. She stated not always, once a month. She stated sometimes his mother also rang. When asked what they talked about, she stated just like business. She then stated she and Mr Prasad were not close to Mr Prasad's mother and she lived alone. She then stated she was not sure what Mr Prasad and his mother talked about, maybe how she was. (50) At hearing Mr Prasad stated he did not talk to his mother and that the last time he talked to his mother was 5 years ago in 2000 when his uncle in Fiji died. When he was told the visa applicant stated he did talk to his mother once a month, he stated maybe she called but he did not have much communication. When he was asked what he meant by much communication, he stated there was no letter writing or talking on the phone. When he was asked if he did not talk on the phone, why had the visa applicant stated he did, he stated he called other relatives in New Zealand, but the visa applicant may have thought he called his mother. When it was put to him the visa applicant stated she did not know why he called his mother, perhaps it was because she was alone, he stated he did not call his mother, she lived with his two cousins, she was sometimes sickly, and he just want to know how she was going. When he was asked what did he do to find our how she was going, he stated he called his cousins and they let him know. When he was asked where his cousins lived, do they live with his mother, he stated he was not sure. When he was asked if he wanted to know how his mother was, why not ask his mother, he stated they had changed their address and he did not know the contact. When asked who was they, he stated his cousins and mother. When asked why would he talk to his cousins but not his mother, he stated the relationship between he and his mother was strained. (51) The Tribunal finds the visa applicants and Mr Prasad's answers at hearing as to whether Mr Prasad talked to his mother are inconsistent, After hearing, the visa applicant stated that her oral evidence may have been wrong in that her evidence was not based on first hand knowledge but on suspicion, that it may have been a result of her anger towards Mr Prasad and his family and that when she attended the Tribunal she was stressed and depressed and not in a clear frame of mind which may have affected her evidence in relation to Mr Prasad's relationship with her mother. (52) The Tribunal finds the visa applicant's evidence at hearing and her subsequent statutory declaration are inconsistent. The Tribunal has considered the visa applicant's submission as to why they are inconsistent, namely that she had based her evidence at hearing on suspicions only, that it may have been as a result of anger and that she was stressed and depressed and not in a clear frame of mind. However, the Tribunal prefers the visa applicant's evidence at hearing that Mr Prasad did talk to his mother in New Zealand because that is the earliest evidence that she freely gave in relation to Mr Prasad's contact with his mother. The Tribunal does not believe or accept her subsequent explanation that she made these statements based on her suspicion, or because she was angry at Mr Prasad and his family or because her frame of mind affected her evidence. (53) The Tribunal also finds that Mr Prasad's initial answer is not true, given that he subsequently stated maybe his mother called but he did not have much communication. The Tribunal also finds that Mr Prasad's answer that his mother lived with his two cousins and he called his cousins when he wanted to know how she was going is not plausible given that his cousins lived with his mother, he could have spoken to his mother to find out how she was. This leads the Tribunal to find that Mr Prasad's evidence in relation to his contact with his mother is unreliable. This leads the Tribunal to conclude it prefers the visa applicant's initial evidence at hearing that Mr Prasad did talk to his mother and he had contact with his mother once a month. (54) This leads the Tribunal to conclude that given the frequency of the calls, the visa applicant's initial evidence that Mr Prasad talked to his mother about how she was is plausible and that they did talk about how she was. This leads the Tribunal to find on the evidence before it, it is not satisfied that Mr Prasad did not have contact with his mother within a reasonable time before application. This leads the Tribunal to conclude it is not satisfied neither the visa applicant nor her spouse have had contact with an overseas near relative within a reasonable period before the application. Therefore the Tribunal finds the visa applicant does not meet regulation 1.15(1)(c)(ii) and therefore, does not meet 1.15. This leads the Tribunal to conclude that the visa applicant does not meet clause 835.213 of Schedule 2. 28 The appellant especially directs attention to the statement in paragraph 48 of the Tribunal's reasons that "the question arises as to whether the visa applicant or her spouse has had contact with any other overseas near relatives who live outside Australia" and to the need perceived by the Tribunal "to assess this question in relation to the visa applicant's parents and the spouse's mother". It is submitted that these passages demonstrate that the Tribunal embarked on a roving inquiry in relation to contact, rather than, as reg 1.15(1)(c)(ii) dictates, an inquiry the focus of which is on a reasonable period prior to the making of the visa application. 29 There is no doubt that a temporal limitation is nowhere to be found in the quoted passages from paragraph 48 of the Tribunal's reasons. Viewing this paragraph of the reasons in isolation, a concern does arise as to whether the Tribunal did indeed direct itself to the correct question. That concern is reinforced by an absence of any consideration in the reasons of what might, in the circumstances of that visa application, constitute a reasonable time prior to the making of that application. Further, in the paragraphs which follow paragraph 48 in the Tribunal's reasons one finds a general consideration of the appellant's statement of the contact which he had had with his mother and what the appellant said of that contact. 30 This consideration culminates in paragraphs 53 and 54 of the Tribunal's reasons. Here, one finds a stepped process of reasoning in which a conclusion is voiced about Mr Prasad's unreliability as a historian in relation to the contact which he has had with his mother which, in turn, engenders an expressed lack of satisfaction as that Mr Prasad did not have contact with his mother within a reasonable time before the making of the visa application. 31 It is conceded on the part of the appellant that, when assessing the credibility of the evidence as to contact with his mother in the period prior to the making of the visa application given by Mrs Prasad and her husband, the Tribunal was entitled to take into account conflicting accounts about any such contact in the period which followed the making of that application. Such a conflict was certainly evident is the material before the Tribunal, including the oral evidence given to the Tribunal. 32 The Tribunal did, in paragraph 50 of its reasons, recite the evidence which Mr Prasad gave that the last time he talked with his mother was in 2000, i.e. prior to the making of the visa application on 27 September 2001. It has then evaluated whether or not this statement has engendered satisfaction about an absence of contact in this period by reference to inconsistent accounts it received as to contact generally with his mother. This, in my opinion, was a legitimate forensic exercise as for that matter were the inquiries that the Tribunal made of Mrs Prasad both at its hearing and otherwise. Further, paragraphs 53 and 54 of the Tribunal's reasons do, in my opinion, demonstrate that the Tribunal was well aware that the end to which this exercise was directed was a question of satisfaction with respect to a reasonable period prior to the making of the visa application. Reading the reasons as a whole the reference to this period in paragraph 54 of the reasons does not strike me as an uncritical, coincidental recitation of the correct regulatory criterion. 33 It is nothing to the point that it may have been more felicitous if the Tribunal had commenced its discussion of this topic by reminding itself of the temporal focus of reg 1.15(1)(c)(ii) of the Regulations. Mere infelicity of language in its reasons is not indicative of a constructive failure to exercise the jurisdiction consigned to the Tribunal. 34 It follows that I am not persuaded that the Tribunal's reasons demonstrate that the Tribunal misdirected itself in law. 35 The appeal should therefore be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 November 2007 Counsel for the Appellant: Mr Lorenzo Boccabella Solicitor for the Appellant: AJ Torbey & Associates Counsel for the Respondent: Mr Matthew Brady Solicitors for the Respondent: Clayton Utz Date of Hearing: 7 November 2007 Date of Judgment: 14 November 2007