James v Minister for Immigration & Multicultural Affairs [2001] FCA 909 (16 July 2001)

Last Updated: 18 July 2001

FEDERAL COURT OF AUSTRALIA

James v Minister for Immigration & Multicultural Affairs [2001] FCA 909

Family Law Act (Cth) 1975 s 104

Matrimonial Causes Act 1959 (Cth) ss 28(j)(ii), 36(2), 52, 54

Migration Regulations 1994 Sch 2 cl 806.213

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 applied

Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 applied

SELLAPPA JOACHIM JAMES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 170 OF 2001

SUNDBERG J

16 JULY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 170 OF 2001

BETWEEN:	SELLAPPA JOACHIM JAMES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	16 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 170 OF 2001

BETWEEN:	SELLAPPA JOACHIM JAMES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	16 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1 The question for decision in this case is whether the applicant is an "aged dependent relative" for the purposes of clause 806-213 of Schedule 2 of the Migration Regulations. That expression is defined in reg 1.03 as

"in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, ... a relative who:

(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and

(b) has been dependent on that person for a reasonable period, and remains so dependent; and

(c) is old enough to be granted an age pension under the Social Security Act 1991."

The applicant claimed to be an "aged dependent relative" in relation to his son Immanuel, an Australian permanent resident and citizen, who nominated his father for a Class AO Family (Residence) visa. He is over 80 years old.

2 Paragraph (a) of the definition of "aged dependent relative" will be satisfied if the applicant is "formally separated" from his wife. They are not divorced. The applicant's wife is a permanent resident of Canada. When the Migration Review Tribunal affirmed the decision to refuse the grant of the visa the wife was living in Australia with another son. The applicant and his wife had been separated physically since 1994 as she refused to come to Australia, preferring to live in Canada with her daughter. The applicant said he does not see his wife when she visits Australia. When she was in Canada he did not write to her or telephone her. The wife's evidence was that they had been separated since about March 1997. They had not cohabited since being physically separated in October 1994.

TRIBUNAL'S REASONS

3 The Tribunal concluded that the applicant was married and was not formally separated from his wife. It referred to the Macquarie Dictionary meaning of "formally" - "in a formal manner" - and of "formal" - "marked by form or ceremony ... made or done in accordance with forms ensuring validity being in accordance with the prescribed or customary forms". The Tribunal's reasons for concluding that the applicant, though "separated", was not "formally separated" are contained in these passages:

"The Tribunal finds that `formally separated' requires more than physical separation over a period of time, as reflected in the Family Court cases submitted. The use of the word `formally' as indicated earlier must have some meaning or it would not have been included by the Legislature if physical and mental separation was sufficient.

...

Perhaps in the required circumstances a Domestic Violence order by a Court, a formal Deed of Separation and the like could satisfy paragraph (a) of the definition ...."

The applicant seeks review of the Tribunal's decision under Part 8 of the Migration Act 1958 (Cth) ("the Act").

GROUNDS OF REVIEW

Error of law - "formally separated"

4 It was submitted that the Tribunal's construction of the expression "formally separated" was wrong, and that the word "formally" was used to distinguish a well-established separation from one that was short term, informal or casual. It was said that on the material before it, the Tribunal should have concluded that at the very latest from October 1997 the parties were formally separated. Alternatively, it should have acted upon its finding that they had been separated physically since October 1994, and both physically and mentally from March 1997.

5 The Tribunal's construction of the expression "formally separated" is, in my view, correct. The Tribunal referred to the Macquarie Dictionary in support of its construction. It noted that the word "formally" had to be given some force, and that while the word "separation" standing alone might attract the meaning given to the word in cases arising under the Family Law Act 1975, that meaning was not available in par (a) of the definition because of the word "formally". In my view, the words "formally separated", as part of the larger expression "divorced or formally separated", contemplates something in the nature of an order or decree of judicial separation, or the making of an agreement for separation, at least if sanctioned or approved by an appropriate authority. Section 52 of the Matrimonial Causes Act 1959 (Cth) provided for a decree of judicial separation. The effect of the decree was to relieve the petitioner of the obligation to cohabit with the other party to the marriage while the decree remained in operation, but without otherwise affecting the marriage or the status, rights and obligations of the parties: s 54. The 1959 Act also contemplated that the parties to a marriage might enter into an agreement providing for their separation, under which one party may be obliged to pay maintenance to the other: ss 28(j)(ii) and 36(2). Although under the Family Law Act it is no longer possible to obtain a decree of judicial separation or a separation order, that Act envisages that the laws of another country may make such relief available. Section 104 provides for the recognition in certain circumstances of the legal separation of the parties to a marriage effected in accordance with the law of an overseas jurisdiction.

6 The construction of "formally separated" that I prefer accords with the general principle of statutory interpretation that all words should prima facie be given some meaning and effect. See Pearce, Statutory Interpretation in Australia 4^th ed (1996) at 35, The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 and Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 12-13.

7 The applicant's submission that par (a) of the definition of "aged dependent relative" constitutes a "genus composed of persons who had either never been married or had ceased to be married because they were widowed, divorced or formally separated" does not advance his case, because it assimilates formal separation and the termination of a marriage.

Incorrect application of law to facts

8 It was submitted that since the Tribunal found that the applicant was physically separated from his wife from October 1994, and emotionally or finally separated from her from approximately May 1997, it erred in law in failing to find that the parties were formally separated for the purposes of the definition of "aged dependent relative". Given that the Tribunal did not err in its construction of the words "formally separated", the conclusion to which it came on the facts involves no error in its application of the law to the facts.

CONCLUSION

9 The amended application for review raised other grounds, but they were not pursued. The application must be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 16 July 2001

Counsel for the Applicant:	T V Hurley
Solicitors for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 July 2001
Date of Judgment:	16 July 2001