Case: Elliott v Minister for Immigration and Multicultural Affairs [2006] FCA 67
Outcome: cited
The applicant asserts that this is supported by the construction of the provision given by RD Nicholson J, at first instance, in Elliott v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 67 at [38] and [40] (cited at [18] and [19] of the applicant's submissions). The Minister noted that Elliott did not concern the issue raised in the present case. The Minister submits that the excerpts cited by the applicant do not support the applicant's submission; the applicant has omitted the final sentence of [38] which would, in part, serve to undermine the construction proffered. RD Nicholson J said at [38]: 'The question which the Tribunal was required to answer in relation to subreg 1.15(1)(c)(ii) was whether the applicant had an overseas near relative with whom he had not had contact within a reasonable period before making the application. In the case of the applicant, the question was referrable to his mother and/or half-siblings.' (Emphasis added) 16 In Elliott , the applicant had claimed that he had not had contact with any of his relatives. The Tribunal was not satisfied of this. Viewed in this light, this would suggest, as the Minister contends, that the same question needed to be asked of each of the applicant's overseas near relatives. This construction is borne out by what RD Nicholson J goes on to say at [40]: 'Approaching the reasons of the Tribunal in accordance with the injunction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 not to construe such reasons too finely, it is a fact that the Tribunal stated the following in the course of its reasons: "In order to satisfy subregulation 1.15(1)(c)(ii) the visa applicant must not have had any contact with an overseas near relative within a reasonable period before making the application." "The visa applicant has claimed that he did not have any contact with either his mother or half-siblings in the United Kingdom within a reasonable period before making his application on 17 October 2002." "Based on the evidence before it, the Tribunal is not satisfied that, on the balance of probabilities, the visa applicant had not had any social contact with his mother or half-siblings within a reasonable period before making his visa application." On the face of these statements they support a conclusion that the Tribunal understood the question posed by subreg 1.15(1)(c)(ii). In themselves they belie the contention of the applicant that the Tribunal applied the policy with disregard to the requirements of the Act.' 17 Moreover, the Minister submits that the Tribunal does not ask the correct question by asking itself whether there is an overseas near relative among the relevant three with whom the applicant has not had contact. According to the Minister, the correct question is whether the applicant has had contact with an overseas near relative; the same question must be asked of each overseas near relative. Therefore, the Minister submits, the contact the applicant had with the mother and sister both residing in Afghanistan prevented the applicant from meeting the criteria for the visa. 18 This construction, the Minister submits, is supported by the operation of s 23 of the Acts Interpretation Act 1901 (Cth) ( Contra. applicant's submissions at [21]), which provides: 'In any Act, unless the contrary intention appears: (a) ... (b) words in the singular number include the plural and words in the plural number include the singular.'