|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 22 June 2004
FEDERAL COURT OF AUSTRALIA
Taslim v Secretary, Department of Family & Community Services
ADMINISTRATIVE LAW – application for Transitional Residence
Certificate – meaning of ‘residence’ – whether error of
law.
Judiciary Act 1903 (Cth)
Administrative
Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93
cited
Gauthiez v Minister for Immigration & Ethnic Affairs (1994)
53 FCR 512 discussed
Nessa v Chief Adjudication Officer [1999] UKHL 41; [1999] 1 WLR
1937 cited
Scargill v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 116; (2003) 75 ALD 53
discussed
KARAR
TASLIM v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES, DR M THORPE,
MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL AND
ADMINISTRATIVE APPEALS
TRIBUNAL
N 154 OF 2004
BEAUMONT
J
22 JUNE 2004
SYDNEY
|
KARAR TASLIM
APPLICANT |
|
|
AND:
|
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
FIRST RESPONDENT DR M THORPE, MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL THIRD RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondents’
costs.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
1 Application, under both s 39B of the Judiciary Act 1903 (Cth) and s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), to review judicially the decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent that the applicant was not entitled to a Transitional Residence Certificate (‘TRC’) because the applicant was not a Protected SCV (Special Category Visa) Holder (‘PSCVH’) under s 7(2C) of the Social Security Act 1991 (Cth) (‘the Act’).
2 By s 7(1) of the Act, a PSCVH has the meaning given by inter alia, s 7(2C), providing (relevantly) as follows:
‘7(2C) A person who commenced ... residing in Australia during the period of 3 months beginning on 26 February 2001 is a [PSCVH] at a particular time if:
(a) the time is during the period of 3 years beginning on 26 February 2001; or ...’
3 For his claim to succeed, the applicant was required to show that he commenced residing in Australia in the period from 26 February 2001 to 25 May 2001.
4 Section 7(3) is also relevant for present purposes, providing:
‘7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.’
FACTS FOUND BY THE TRIBUNAL
5 The Tribunal made these findings:
‘4. [The applicant] is a citizen of New Zealand and at the relevant time was not an Australian citizen or the holder of a permanent visa. As a New Zealand citizen he is a holder of a temporary visa called a "special category visa" ("SCV") which is issued to holders of New Zealand passports under section 58 of the Migration Act 1958.
5. His evidence was that he arrived in Australia on 21 May 2001 and remained in Australia for six days. He stayed with a friend at Campsie. His wife, who remained in New Zealand, did not accompany him. He returned to New Zealand on 27 May 2001 because his wife was unwell. [The applicant] believed that any period of stay within the three months would qualify him as a SCV holder.
6. ...[The applicant] said he made no contribution to the outgoings at Campsie and he did not pay rent. He did not work during this period but he did open a bank account with the Commonwealth Bank at Campsie. The [Social Security Appeals Tribunal] decision states that he applied for a tax file number, job search registration and a Medicare card at that time. [The applicant] has no relatives in Australia.
7. [The applicant] returned to Australia on 16 September 2002 and his wife and child joined him in Australia in 22 October 2002. [The applicant] and his family continue to reside in Australia. He has passed the English test requirement for overseas veterinary surgeons and said he intends to do the qualifying examination for Veterinary Surgery.’
6 The Tribunal noted that in Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992), Deputy President McMahon held that, whilst the Act requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia, they are not intended to be exhaustive and are made in relation to the ordinary concept of residence.
7 The Tribunal said:
‘10. The term residence encompasses temporal and emotional factors. Thus to establish residence there must be both a physical presence in the particular place as well as the intention to treat that place as "home". In Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 Viscount Cave LC defined "reside" as:
"the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time."’
8 The Tribunal then identified the following as facts to which the Tribunal had regard in determining whether the applicant was resident in Australia:
‘(a) [The applicant] lived with a friend on [a] temporary basis for six days during that three-month period. At best this constitutes a visit and cannot be construed as setting up residence. A brief visit with the said intention to reside in Australia also does not constitute residence.
(b) [The applicant] had no family in Australia during that period. He was a citizen of New Zealand and his family was in New Zealand.
(c) [The applicant] had no employment or prospects of employment in Australia, at that time and he had no business or financial ties. He subsequently passed the English exam for foreign veterinarians to qualify to take the qualifying exam in veterinary surgery but that was not relevant, for the three-month period.
(d) [The applicant] had no personal assets in Australia during that period apart from opening a bank account during his brief stay.
(e) [The applicant] only visited Australia once and was effectively living in New Zealand for the three-month period except for his six-day visit.
(f) As to other matters relevant to determining whether the person intends to remain in Australia, [the applicant] referred to advice from the [first respondent] to the effect that if he returned to Australia by 2004 he would be considered an Australian resident. A note on file by Christian Ellston states:
"[Word Pro rejection letter sent as claimant departed Australia on] 27/05/01. Reconsider issue of Certificate if claimant returns and reclaims before 26/02/04."
Mr Carter, at the hearing, advised that this referred to a certificate of Australian residency and not a SCV.’
9 The Tribunal said that it did not consider the interpretation of the note by Christian Ellston relevant. A letter from the first respondent dated 10 September 2001 stated that there was not enough evidence to issue the applicant with a residence certificate; and that it was the task of the Tribunal to determine his resident status for the three-month period.
10 The Tribunal noted that the applicant had returned to Australia on 16 September 2002 and the first respondent has accepted that he has resided here on a permanent basis since that date; but that, in order to qualify as a SCV holder, he was required to show that he had taken up residence or had commenced residing in Australia during the three-month period from 26 February 2001 to 26 May 2001.
11 The Tribunal concluded:
‘A brief visit as described by [the applicant] does not meet with the requirements of commencing to reside in this country, as required in the Act nor does the six day visit satisfy the ordinary concept, that he commenced residing during that three month period.’
THE APPLICANT’S WRITTEN OUTLINE OF ARGUMENT
12 On behalf of the applicant, Mr McNally commenced his written argument with the following contentions on ‘procedural background and claims’:
• The applicant is a citizen of New Zealand, who arrived in Australia on 21 May 2001. His wife remained in New Zealand, as she was in an advanced state of pregnancy, and was due to give birth to their child on 21 August 2001. The applicant’s wife planned to join him in Australia after the birth of their child due in August 2001.
• Prior to travelling to Australia the applicant had made inquiries about recognition in Australia of his veterinarian qualifications and this was the main reason behind his decision to come to Australia to live.
• The applicant brought with him a suitcase containing his own clothing and his wife’s clothing and stayed at a friend’s place in Campsie, contributing to food costs.
• Following his arrival in Australia, the applicant opened a bank account with the Commonwealth Bank of Australia and spoke to a real estate agent about obtaining his own premises by the time his wife and new child joined him. The applicant applied for a tax file number, applied for job search registration and a Medicare card, and made inquiries about obtaining a NSW driver’s licence. He also made some efforts to obtain work.
• Two days after arriving in Australia, on 23 May 2001, the applicant applied for a TRC at CentreLink, expressing his intention to reside in Australia permanently.
• The applicant’s wife in New Zealand became ill, and on 27 May 2001, the applicant telephoned the CentreLink International Office to discuss whether his departure to New Zealand to care for his wife would affect his application for a TRC. The applicant was told by a ‘Ms Karen’ from CentreLink that his residency status would not be affected by such departure so long as he returned to Australia, and reapplied before 26 February 2004. Relying on that advice from CentreLink, the applicant departed Australia for New Zealand.
• The applicant’s wife gave birth to their son on 4 August 2001.
• The applicant returned to Australia on 16 September 2002. His wife and son joined him in Australia on 24 October 2002. The applicant brought with him all of his household items, rented an apartment, obtained a job, a Medicare card and a driver’s licence. He made arrangements to sit the relevant examinations to have his veterinarian qualifications recognised in Australia; all matters he had done or commenced to do by or in May 2001, before he returned to New Zealand to the aid of his ill wife.
• The applicant reapplied for the residence certificate on a date that is not clear, but it appears to be by letter dated 11 January 2003.
• On 20 January 2003 CentreLink rejected his application stating that he was not eligible under the definition of ‘Australian resident’ under social security law at any time between 26 February and 26 May 2001.
13 Mr McNally then made the following submissions with respect to the correct legal meaning of ‘commenced residing’ as follows:
• The Tribunal correctly stated the test under s 7(2C) that, in order to establish that the applicant had commenced residing in Australia during the relevant period (the three months commencing 26 February 2001) ‘there must be both a physical presence in the particular place as well as the intention to treat that place as home’. That test is supported by the decision of the Full Court of this Court in Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116; (2003) 75 ALD 53. In considering the meaning of the words ‘usually resides’ in the Migration Act 1958 (Cth), the Full Court said (at [21]) that the Tribunal –
‘... applied a test that made decisive the combination of three matters, namely that the appellant was born in the United Kingdom, that he remained a citizen of the United Kingdom, and that by reason of him having a maternal grandparent and an uncle in the United Kingdom he had greater ties with that country than the USA. In our opinion, in so deciding, the Tribunal failed to consider the factors of physical residency and intention which are essential elements in the notion of "usually resides".’
• In the present case, the meaning of the word ‘residing’ should be the same as that given to ‘resides’ in Scargill, such that the essential elements involved a physical presence in Australia, plus an intention to reside in Australia, as acknowledged by the Tribunal itself.
• The physical presence element in Scargill related to a test as to whether a person ‘usually resides’ in a place. In the present case, s 7(2C) merely requires that a person commenced to reside in Australia during the relevant period, thus reducing the physical element to state of initiation, being satisfied in the present case from the first day that the applicant was in Australia with the requisite intention. The subsequent and unexpected health concerns of the applicant’s wife, requiring him to temporarily return to New Zealand to care for her, did not destroy or otherwise negative the fact that, at that point, the applicant satisfied the criteria in s 7(2C) of the Act. The Tribunal failed to apply the proper test, a test which it had acknowledged itself, such that it thus erred in law.
• The Tribunal’s conclusion that the applicant did not satisfy the criteria in s 7(2C) was not supported by its own findings that the applicant was present in Australia with an intention to reside here. The Tribunal’s findings in this regard, ought to have resulted in a conclusion that the criteria in s 7(2C) was satisfied.
14 Mr McNally then contended that the Tribunal accepted that the applicant was present in Australia between 21 and 27 May 2001, and that he returned to New Zealand on the latter of those dates because his wife was unwell; and appears to have accepted that the applicant had the ‘said intention to reside in Australia’ during his stay in May 2001; and accepted that the factors required to be considered by s 7(3) of the Act was not an exhaustive list, and that other factors may be taken into account in its task to assess whether the applicant had commenced to reside in Australia at the relevant time. But it failed to have regard to such additional factors. That is to say, the Tribunal made no reference to the following material claims that were an ‘essential integer’ of the applicant’s claim:
(a) That the applicant’s wife had not travelled with him to Australia on 21 May 2001 because she was pregnant and was unable to travel at the time, but that she intended to join the applicant in Australia after the birth of their child in August 2001.
(b) That the reason why the applicant had to urgently and unexpectedly return to New Zealand six days after arriving in Australia was that his pregnant wife was ill, and had no-one else to care for her.
(c) That the applicant had made some efforts to obtain work in Australia and had made inquiries about obtaining a NSW driver’s licence.
(d) That the applicant, during his stay in May 2001, spoke to real estate agents about accommodation for himself and his family following his wife’s arrival.
(e) That in May 2001, the applicant had brought with him two suitcases of clothing including his wife’s clothing, and that his wife was to join him after the birth of their child.
(f) That prior to travelling to Australia, the applicant had made inquiries about his veterinarian qualifications being recognised in Australia, and that this was one of the main reasons behind his decision, prior to 21 May 2001, to come to Australia to live.
15 It is next put for the applicant that, whilst the Tribunal referred, in its narrative, to the following material claims that were ‘essential integers’ of the applicant’s claim, the Tribunal did not take them into account when it made its conclusions:
(a) The Tribunal stated that the applicant’s study and employment plans in Australia for the future ‘was not relevant, for the three-month period’. Yet the applicant’s plans for the future in Australia are clearly indicative of whether he intended to reside in Australia at the relevant time, and thus was a material claim going towards an essential criterion in his claim.
(b) The database entry by a CentreLink officer on 27 May 2001 stating: ‘27/05/01 Reconsider issue of Certificate if claimant returns and reclaims before 26/02/04’ was a result of his seeking advice from CentreLink as to the effects of his departure that day (see above). The Tribunal stated that it did ‘not consider the interpretation of the note by [Christian Ellston] relevant’. But it was clearly relevant, because it was a contemporaneous record of the applicant’s intention to reside in Australia at that time. This was a material claim going towards that essential criteria.
16 The applicant submits that s 7(3)(f) imposed on the Tribunal a mandatory requirement to take into account these material claims by providing:
‘7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
....
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia. ([emphasis] added).’
17 In failing to have regard to these claims, the Tribunal erred at law.
18 The applicant further contends that the Tribunal’s failure to deal with these claims amounted to error at law. The Full Federal Court, it is argued, summarised the position in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630, as follows:
‘[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
19 Here, it is contended, the applicant made a claim that he was in Australia at the relevant time with the intention to reside in Australia from that point forward. These claims were integral matters to that essential integer of his claim. In failing to consider them, the Tribunal failed to exercise its jurisdiction and/or erred in law.
20 The Tribunal found that the applicant had no ‘prospects of employment in Australia’ despite clear evidence that the applicant was seeking work, had applied for a tax file number from the Australian government, had applied for job search registration, and had made inquiries regarding the recognition of his veterinarian qualifications in Australia. There was simply no evidence at all to support the Tribunal’s findings in this respect, which went to one of the essential criteria required to be determined in section 7(3)(c) of the Act which provided:
‘7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
....
(c) the nature and extent of the person’s employment, business or financial ties with Australia.’
21 There being no evidence in support of that finding, the Tribunal erred in law in so finding, and such error went to an essential factor in the applicant’s claim.
22 The applicant’s evidence (which was not rejected) was that he telephoned CentreLink prior to his departure on 27 May 2001 to discuss whether his departure to New Zealand to care for his ill wife would have a negative effect on his application for a residency certificate (see above). The applicant’s evidence, which is supported by the database entry, was that he was advised by that CentreLink officer that such departure would not disentitle him for residency status so long as he returned and reapplied before 26 February 2004. The applicant relied on that advice, apparently to his detriment, and he then departed Australia for New Zealand later that day.
23 The applicant does not suggest that he was not still required to produce at a later date sufficient evidence to prove his intentions as to residence in May 2001, but the applicant submits that by providing him with that advice, CentreLink was thereafter estopped from relying solely or materially on that departure to find against him in his application. The applicant specifically inquired as to whether his departure would lead to a rejection of his claim, and he was advised that it would not. When one has regard to the Tribunal’s decision as a whole, it is clear that the reason he was rejected was the single fact that he departed Australia on 27 May 2001 and that his presence in Australia during the relevant three month period was six days only. The Tribunal ought to have considered, and acknowledged that CentreLink was estopped from relying solely or materially on that factor to reject his claim. In not so doing, the Tribunal erred at law.
THE AUTHORITIES CITED IN ARGUMENT ON BEHALF OF THE FIRST RESPONDENT
24 In order to understand the first respondent’s contentions, reference should first be made to the principal authorities cited by Mr Reilly in the course of argument on behalf of the first respondent.
25 In Gauthiez v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 512, a question arose whether, for the purposes of reg 9(2) of the Migration Regulations 1989 (Cth) the applicant ‘usually resides in the same country, not being Australia ...’.
26 Gummow J said (at 519):
‘The meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily resides" is such as to make the result in a given case depend largely upon matters of fact and degree. That means that if, in the reasons of a body such as the Tribunal, no misapprehension of the meaning of the provision in question is disclosed, and no misconception appears as to what may amount to "residence" or "usual residence", the decision will not involve a question of law. This will be so unless the facts before the Tribunal were incapable of the legal complexion placed upon them: Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 104, per Dixon J.’
27 (These observations were approved by the Full Federal Court in Scargill, above (at [26]).)
28 Gummow J observed (at 519 – 520):
‘However, before this Court both sides accepted the applicability to the construction of reg 9 of a passage from the speech of Lord Scarman in a case in which the House of Lords was construing the term "ordinarily resident" as it appeared in s 1 of the Education Act 1962 (UK). The decision is Regina v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309. There, in delivering the leading speech, Lord Scarman (at 340) pointed out that whilst "ordinary residence" is not a term of art in English law, it embodies an idea of which the Parliament has made increasing use in the statute law in Britain since the beginning of the 19th century. For example, the expression has been a feature of income tax legislation since 1806. After reviewing various authorities concerned with taxation, bankruptcy and family law, his Lordship (at 343-344) said:
"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."’
29 In Nessa v Chief Adjudication Officer [1999] UKHL 41; [1999] 1 WLR 1937, upon a claim for entitlement to income support, the question arose whether a person from abroad with an intention to settle in the United Kingdom was ‘habitually resident’ in the United Kingdom for the purpose of the Income Support (General) Regulations 1987 (UK).
30 Lord Slynn said (at 1942):
‘If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have income support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, "I intend to settle in the United Kingdom" and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become "habitual" and, as I see it, will or is likely to continue to be habitual.
I do not consider that, when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, "durable ties" with the country of residence or intended residence, and many other factors have to be taken into account.’
31 In Scargill, above, the question arose, as it had in Gauthiez, whether the applicant ‘usually resides in the same country, not being Australia ...’.
32 The Full Federal Court said (at [17]):
‘It is not contended by either party before this court that the Tribunal erred in formulating the test which should be applied to determine under reg 1.15(2)(a) where the appellant "usually resides". In Koitaki Para Rubber Estates Ltd v FCT [1941] HCA 13; (1941) 64 CLR 241, to which the tribunal referred, Williams J, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation that is pertinent to this case (at 249):
The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode: see Halsbury’s Laws of England, 2nd ed, vol 17, pp 376, 377.’
33 In answer to the applicant’s estoppel argument, Mr Reilly relied upon observations of Burchett J in Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303, a case of a passport issued in error, as follows (at 308):
‘I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold for an estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached ... .’
THE FIRST RESPONDENT’S WRITTEN SUBMISSIONS
34 By his written outline, Mr Reilly, counsel for the first respondent submitted:
• This is an ‘appeal’ on a point of law under s 44 of the AAT Act, and although the amended application also pleads s 39B of the Judiciary Act, in the absence of special circumstances, such an application should be dismissed: see Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 (per Davies J) at 484. There do not appear to be any special circumstances in this case.
• The essential issue was whether the applicant had ‘commenced residing’ in Australia during the period 26 February to 25 May 2001 within s 7(2C). The applicant claimed to have satisfied this test on the basis of his presence in Australia for six days from 21 to 27 May 2001.
• The first ground raised in the amended application claims that the Tribunal failed to give reasons for its decision. However, following Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, the Tribunal is only obliged to give the reasons it actually had for its decision, not those that the Court considers objectively material: see Beringer Blass Wine Estates Ltd v Geographical Indication Committee [2002] FCAFC 295 at [102]. Nor is a failure to give reasons a jurisdictional error: see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327. In any event, the particulars given do not reveal any failure by the Tribunal to give reasons, but rather appear to be factual findings with which the applicant disagrees, which is not an error of law: see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].
• The second ground raised in the amended application claims that the Tribunal failed to take into account relevant considerations. The particulars given, as amplified in the applicant’s submissions, appear to seek merits review rather than establishing any failure to take a relevant consideration into account. The Tribunal considered the applicant’s reasons for his return to New Zealand, and the claim that he was misadvised, so the claim that the Tribunal failed to take these matters into account is insupportable. The Tribunal was not required to refer to every detail of the evidence before it: see Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 at 414 per Sackville J; Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593 per Kirby J. Nor does it follow that failure to refer to particular aspects of a case means that the Tribunal has failed to consider that aspect: see Steed v Minister for Immigration & Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J. There is no basis to allege that any matters raised by the applicant were not considered by the Tribunal, as opposed to not being regarded as relevant to the issue before it. Contrary to the applicant’s submissions, the Tribunal did not find that the applicant lacked the necessary intention to reside in Australia, but it did not regard this as sufficient, given the brevity of his stay here. The claim that the Tribunal was in some way estopped from finding against the applicant on this basis is contrary to Petrovski, above, at 308 – 309 and the cases there cited.
• The third ground raised in the amended application claims that the Tribunal failed to look beyond the matters referred to in s 7(3) of the Act. However, there is no basis to suggest that the Tribunal failed to consider any matter not within s 7(3) that was raised by the applicant. This ground appears to be in substance the same as the second ground and fails for the same reason.
• The fourth ground claims that the Tribunal should have found that the applicant satisfied the test in s 7(2C). While this appears again to seek merits review, the ground, as developed in the applicant’s submissions, claims that the Tribunal misinterpreted the meaning of ‘residing’ in s 7(2C), relying upon Scargill. The applicant appears to claim that the fact that he was physically present in Australia and intended to reside here meant that the Tribunal was bound to find in his favour. However these matters are necessary but not necessarily sufficient indicia of residency, and nothing in Scargill suggests otherwise. Thus the claim that mere physical presence combined with an intention to reside was sufficient to establish that an immigrant was ‘habitually resident’ in the United Kingdom upon her arrival there was rejected by the House of Lords in Nessa. Having regard to the matters in s 7(3) the term ‘commenced residing’ cannot be limited in the way that the applicant suggests. Rather, the matter involves a judgment of fact and degree that is for the Tribunal to make: see Gauthiez (per Gummow J) at 519E, a decision approved in Scargill.
CONCLUSIONS ON THE APPEAL
35 In answer to the first respondent’s written submission, summarised above, the applicant sough to distinguish the terms of the legislation in Scargill (‘usually resides’) and in Nessa (‘habitual resident’). Whilst I accept that the legislation in those cases was, of course, expressed in language which was different from the present, it does not, in my opinion, follow that the Tribunal adopted a wrong legal test here.
36 It will be recalled that the Tribunal stated that the term ‘residence’ encompassed both temporal and emotional factors, so that, relying on the ordinary dictionary meaning, there must be both a physical presence in the particular place, as well as the intention to treat that place as ‘home’. In my view, this was, in law, a correct analysis of the term in the present context.
37 In my opinion, there is no scope for judicial review in the present case.
38 It will be recalled that in Gauthiez, Gummow J referred to the reasons of Dixon J in Miller, at 104. Those reasons, and their context, are, in my view, particularly pertinent here, especially since the question in Miller was whether the taxpayer was (simply) ‘resident’ (not ‘usually’ or ‘habitually’ so) in a place.
39 In Miller, the Commissioner of Taxation (purportedly) appealed to the High Court, invoking s 196 of the Income Tax Assessment Act 1936 – 1943, from a decision of a Board of Review holding that the taxpayer, a deep-sea fisherman, was a resident of the Territories of New Guinea and Papua.
40 Under s 196(1), an appeal from a Board decision lies only if the decision involves a question of law.
41 Dixon J said (at 103):
‘Having regard to the character of the place [i.e. the Milne Bay Military base in 1942 and 1943], I do not think that, had I been in the Board’s place, I should have regarded the facts I have stated as leading to the conclusion that the taxpayer was a resident of Papua. But I am not satisfied that their decision involved any question of law. It is not legally impossible for a man to reside in a country, though he lives on a moving craft plying upon its rivers or within its territorial waters. Nor is it legally impossible for a man to reside at a military base, even a forward one.’
42 Likewise, it may be said in the present case, that even if all the matters relied upon by the applicant in his argument had been taken into account by a decision-maker, it is not legally impossible to conclude that the applicant did not commence residing in Australia from 21 May 2001.
43 Dixon J (at 103), referring to two decisions of the House of Lords (including Levene, above) said:
‘The two cases of Levene and of Lysaght [(1928) AC 234] are as striking as they are decisive in illustrating the way in which the question of "resident" or "not resident" has become a "question of degree and therefore of fact". Lord Buckmaster said:-"It may be true that the word ‘reside’ or ‘residence’ in other Acts may have special meanings but in the Income Tax Acts it is, I think, used in its common sense and it is essentially a question of fact whether a man does or does not comply with its meaning. It is, of course, true that if the circumstances found by the Commissioners in the special case are incapable of constituting residence their conclusion cannot be protected by saying that it is a conclusion of fact since there are no materials upon which that conclusion could depend."
Lord Warrington said: "I have reluctantly come to the conclusion that it is now settled by authority that the question of residence or ordinary residence is one of degree, that there is no technical or special meaning attached to either expression for the purposes of the Income Tax Act, and accordingly a decision of the Commissioners on the question is a finding of fact and cannot be reviewed unless it is made out to be based on some error in law, including the absence of evidence on which such a decision could properly be founded."’
44 Of these final observations, Dixon J observed (at 104):
‘As the Board of Review is an administrative body it may be doubted whether a decision by it can be said to involve a question of law because it is based on insufficient evidence. But, no doubt, if the facts coming before the Board were incapable of the legal complexion placed upon them, that would involve a question of law and the difference is not great.’
45 In my opinion, these comments are applicable here. Dixon J proceeded to conclude his reasons (at 104):
‘...[T]he appeal is not properly before us unless the decision of the Board involves a question of law.
The Board have given their reasons and no misapprehension of the meaning of the provision in question is disclosed and no misconception appears as to what amounts to "residence" as a general proposition. No proposition of law appears to have been assumed. It all seems to me to come back to the so-called question of fact. I am, therefore, not satisfied that the appeal lies.’’
46 In my opinion, those observations are equally applicable here. There was no error of law. The appellant’s complaint is, in truth, based upon the Tribunal’s factual findings.
47 Moreover, no question of estoppel can arise. There is no evidence of detriment, for one thing. Specifically, there was no reliance upon any express representation, nor any sufficiently clear and unambiguous (implied) representation, even if the difficulties in applying estoppel in administrative law, in the performance of a positive statutory duty, could be overcome (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J at 207 – 218).
48 In the circumstances, it is not necessary to consider Mr Reilly’s other points.
ORDERS
49 Accordingly, it will be ordered that since the application did not raise a question of law under the AAT Act, or a ‘jurisdictional error’ in the application of s 39B of the Judiciary Act, it must be dismissed, with costs.
|
I certify that the preceding forty-nine (49) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Beaumont.
|
Associate:
Dated: 22 June 2004
|
Counsel for the Applicant:
|
Mr McNally
|
|
|
|
|
Solicitor for the Applicant:
|
Parish Patience Immigration
|
|
|
|
|
Counsel for the Respondent:
|
Mr T Reilly
|
|
|
|
|
Solicitor for the Respondent:
|
Australian Government Solicitor
|
|
|
|
|
Date of Hearing:
|
9 June 2004
|
|
|
|
|
Date of Judgment:
|
22 June 2004
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/789.html