Case: Yazbeck v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 980 ; (2002) 124 FCR 458
Outcome: discussed
Clause 100.221(4) provides that: The applicant meets the requirements of this subclause if: (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either: (i) continues to be the holder of that visa; or (ii) is no longer the holder of that visa because the visa: (A) was granted before 1 November 1999; and (B) has ceased to be in effect because the applicant: (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) -- either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a member of a family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse; (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975 ; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation. 9 "Custody" is defined in reg 1.03 as follows: "Custody" , in relation to a child, means: (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child. 10 The events leading up to the Tribunal's decision require some explanation. On 22 April 2004, the Tribunal wrote to the appellant inviting him to comment on information in the Departmental file indicating the sponsor had taken out an AVO against him and that they were no longer in a spousal relationship. The appellant responded by letter dated 24 April 2004 indicating that although the AVO had been taken out, "we have since resolved our issues and there has been no violence since". He also stated that he and the sponsor lived together and that they had a daughter. On 28 April 2004, the Tribunal again wrote to the appellant, inviting the appellant to appear before the Tribunal at a hearing and provided the relevant hearing details. The letter stated that the Tribunal wished to take oral evidence at the hearing from the appellant as well as from the sponsor. On 10 May 2004, the Tribunal received a completed "response to hearing invitation form", which was signed by the sponsor. In response to the typed statement "I request that the Tribunal take oral evidence from" was written "English Fatima Mustapha, his wife". Under "I request that the Tribunal obtain the following written evidence or written materials" was written the sponsor's address and name, followed by the words "his wife". 34 The construction of the wording in clause 100.221(4)(c)(ii) has previously been considered in two decisions of this Court, in both cases by a single judge. The first is the judgment of Sundberg J in Yazbeck v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 980 ; (2002) 124 FCR 458 (" Yazbeck "). The applicant in that case had been refused a permanent visa of the same type as that applied for in the present case. Also as in the present appeal, the delegate had refused to grant the permanent visa on the basis that the relationship was not genuine and continuing, and the Tribunal reached the same view. In his amended application in this Court, the applicant contended that the Tribunal had erred in not finding that he satisfied items (A) and (E) of subclause 100.221(4). The Tribunal had before it evidence that the applicant had recently seen the two children of his marriage to the sponsor at a cousin's house, which the applicant claimed established that he had "access" to the children for the purposes of item (A). The applicant relied on s 66C of the Family Law Act for the claim that his former spouse had a "formal maintenance order" for the purposes of par (E). Subsection 66C(1) of the Family Law Act , which is virtually identical to s 3 of the Assessment Act , provides: The parents of a child have, subject to this Division, the primary duty to maintain the child. 35 In construing item (A), his Honour considered the relationship between subclause 100.221(4) and the amendments to the Family Law Act (at [7] [9]). Prior to amendments effected by the Family Law Reform Act 1995 ("the 1995 Act "), Part VII of the old Act had provided for custody and access orders. The 1995 Act introduced "parenting orders", in a new Part VII , to replace those orders. His Honour set out s 64B of the Family Law Act which defines a "parenting order" as dealing with any aspect of parental responsibility for a child, including with whom the child is to live ("residence orders") and contact between the child and another person or persons ("contact orders"). Subclause 100.221(4)(c)(ii) uses both the old terms "custody" and "access", as well as the new terms "residence" and "contact", and was intended by the drafters to accommodate both types of orders. His Honour then considered the discrepancy in the words between items (A) and (B), being that (B) expressly referred to orders made under the Family Law Act whereas item (A) does not. His Honour concluded that the omission of a reference to orders in item (A) was to be explained by bad drafting. His Honour found that this view was supported by the terms of item (C) which refers to the situation where the spouse was granted "joint custody or access by a court". His Honour described items (A) and (C) as "counterparts", explaining this description by giving the example that clause (C) deals only with the sponsor having joint custody because clause (A) deals with (sole) custody. 36 Having found that "custody" and "access" in item (A) referred to the concepts under the old Family Law Act , his Honour concluded that the Tribunal had been correct in finding that there was no evidence of custody or access before it. His Honour noted that "There was no evidence that a court order existed that entitled the applicant to access the children" (at [9]). 37 However, his Honour should not necessarily be taken to have excluded the possibility that something less than a court order could establish "access". His Honour said, at [10]: "Even if a person can, for the purposes of subclause 100.221(4)(ii)(A), have access to a child in the absence of a court order granting access, the applicant does not establish that he "has access" simply because he happens to have seen the child, whether close up or in the distance. Evidence that the applicant "saw his children recently and his wife at a cousin's house" does not established that he has access to his children." It must be said, however, that his Honour does appear to indicate a view that the lack of any reference to court orders in item (A) was merely a drafting oversight. 38 Having found that item (A) was not satisfied, his Honour said that the applicant's case would not be assisted even if he succeeded in his claims in relation to item (E). Nevertheless, his Honour turned to consider whether the applicant's spouse had a formal maintenance obligation for the purposes of item (E) by virtue of s 66C(1) of the Family Law Act . His Honour broke up item (E) into two limbs, being "an obligation under a child maintenance order made under made under the Family Law Act 1975 " and "any other formal maintenance obligation". The first limb was a type of order under the Family Law Act specifying the amount of maintenance to be provided. His Honour found that the type of obligations to which the second limb was directed was maintenance agreements made in writing by the parties to a marriage addressing the maintenance of a child, and which are regulated by the Family Law Act . It was not clear whether or not his Honour viewed this as being the only type of obligation which would satisfy the second limb. 39 His Honour also considered the result of the applicant's contention in relation to s 66C , if it was accepted. His Honour said (at [12]): "If the duty imposed by s 66C(1) were a "formal maintenance obligation", pars (C) and (D) would be rendered unnecessary as would the first limb of par (E). Any applicant whose relationship with the sponsoring spouse had ceased, and who satisfied par (A) or par (B) would, as a result of s 66C(1) , automatically satisfy the second limb of par (E). This would be an absurd result which is avoided by the approach I favour. Thereby effect is given to pars (C) and (D) and both parts of par (E), rather than rendering pars (C) and (D) and the first part of par (E) ineffectual." 45 Dowsett J was mindful of the apparent inconsistency with Sundberg J's decision in Yazbeck and discussed that decision at some length, at [30] to [38]. Prior to considering the decision in Yazbeck , Dowsett J considered the meaning of "residence order", "contact order" and "child maintenance order" used in items (B), (D) and (E), and notes that the terms were introduced by the 1995 amendments to the Family Law Act . His Honour also notes that prior to the 1995 amendments, the terms "custody orders", "access orders" and "maintenance orders" were traditionally used and the meanings of those terms. 46 Dowsett J agreed with Sundberg J's conclusion in Yazbeck that the Tribunal in that case had correctly concluded that the applicant did not have access on the basis of having recently seen his children at a cousin's house. Dowsett J's reasoning was that "Item (A) contemplates some form of continuing access rather than one previous incident of contact" (at 31]). His Honour then went on to consider the aspects of Sundberg J's judgment which appeared to go further. First, there was the issue of the relevance of the express reference in items (B), (D) and (E) to orders "made under the Family Law Act 1975 ", and to rights granted "by a court" in the case of item (C), whereas item (A) does not contain any such a reference. Dowsett J did not accept Sundberg J's analysis, concluding it was more likely to reflect "deliberate decisions than bad drafting" (at [32]). In reaching this conclusion, his Honour did not embrace Sundberg J's approach to items (A) and (C) as "counterparts", which analysis had apparently been a major part of Sundberg J's reasoning. Dowsett J observed that an approach to items (A) and (C) as counterparts seemed to assume that only the visa applicant and sponsor had any direct interest in the relevant child, whereas there was no reason to assume this, especially since there was no requirement that the child be the biological child of either person. His Honour also observed that, even assuming only the visa applicant and sponsor had direct links, item (C) does not provide a counterpart to item (A) for a case where a visa applicant has "access", since sole custody by the sponsor will not satisfy item (C). Although his Honour discusses some possible purposes of items (A) to (E) and their interaction (at [33]), his ultimate view was that it was very difficult to understand these matters entirely, and that the best course was probably "to give each item its natural meaning, unless some absurdity results" (at [35]). 47 Dowsett J considered Sundberg J's conclusion that item (A) was intended to deal with custody and access orders under the old Family Law Act . Dowsett J noted that, as Sundberg J had himself pointed out, the amended Act gives effect to orders made under the old Act (custody and access orders) as if they were orders made under the amended Act (residence and contact orders). On that basis, his Honour concluded that item (B) applied both to orders made under the old Act and the amended Act, and that item (A) must have been intended to deal with arrangements other than orders made under the old Act (at [36]). 48 Dowsett J considered Sundberg J's conclusion that an absurdity would arise if s 66C of the Family Law Act satisfied item (E). Dowsett J did not accept with Sundberg J's analysis that where a visa applicant satisfied item (A) or (B), the second limb of item (E) would automatically be satisfied, and that items (C) and (D) would thereby be rendered unnecessary. Dowsett J noted this analysis again assumed that the relevant child must be the biological (or perhaps adopted) child of either the visa applicant or the sponsor. Since s 66C applies only to "parents" (which exclude, for example, step-parents), and yet orders referred to in items (C) and (D) can be made in respect of non-parents, items (C) and (D) still had work to do. On Dowsett J's reasoning, the second limb of item (E) would not automatically be satisfied where a visa applicant satisfied items (A) or (B) since it could not be assumed that the sponsor was a parent for the purposes of s 66C. 49 Dowsett J also considered the policy implications of construing item (A) as requiring court orders, telling against the construction favoured by Sundberg J (at [34]): "... I see no reason why the Migration Regulations would discriminate, for present purposes, between recognized rights and obligations existing at law, but not evidenced in any order or other "formal" document, and rights and obligations which are so evidenced. Such discrimination would encourage unnecessary litigation". 50 His Honour also questioned (at [32]) "why bona fide consensus as to a child's welfare should not be sufficient", in the context of considering why item (A) should be construed as requiring court orders. 51 Dowsett J concluded by expressing his reluctance in reaching a different conclusion on item (E) than Sundberg J, adding that it was arguable that Sundberg J's decision on the issue did not form part of the ratio. Dowsett J also offered as explanations for the different decision that it "was based upon the evidentiary shortcomings of the applicant's case" and that "his Honour did not have the benefit of argument on the wider aspects of the matter" (at [39]). 54 Counsel for the Minister also submitted that, in any event, Yazbec should be preferred to Fitch. She submitted that, following Yazbec , the Tribunal did not have before it evidence of a formal maintenance obligation and did not err by proceeding to make a decision under s 359A when such information was not forthcoming. The main basis on which it was contended that Yazbec should be preferred was that Sundberg J took a more thorough and orthodox approach to statutory construction, particularly in relation to the term "formal maintenance obligation" in item (E). Counsel contended that the approach of Dowsett J in Fitch gave no meaning to the term "formal", rendering it otiose and with no work to do. This was contrary to a proper approach to statutory construction. It was submitted that Dowsett J did not undertake a proper assessment of the term "formal maintenance obligation" in reaching his conclusion and, in particular, that he did not consider the difference between a maintenance obligation and a formal maintenance obligation, whereas Sundberg J did analyse this issue (at [12]).