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austlii:cth/IRTA/1996/7501
defendant. The Tribunal affirmed the decision under review to refuse the grant of a Class 820 (extended eligibility (spouse) after entry) entry permit to Antonio Dutra Goncalves.
A Brazilian man who married an Australian resident applied for a spouse visa to stay in Australia. By the time the Immigration Review Tribunal heard his case, he and his wife had separated and he was in a new relationship with another woman. The Tribunal refused his application because the law required his marriage to be both genuine AND still continuing at the time of the decision. Since the relationship had ended, he could not meet this requirement, even though the marriage had been genuine when it started. The Tribunal noted that the law only allows exceptions when a spouse dies or there is domestic violence—not when a relationship simply breaks down.
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On 19 April 1996 Antonio Dutra Goncalves ( the Applicant) applied to this Tribunal for a review of a decision made by a delegate of the Minister for Immigration and Ethnic Affairs (the Minister) at Brisbane on 16 January 1996 to refuse him a Class 820 (extended eligibility (spouse) after entry) entry permit to enable him to remain in Australia.
1 cited instrument linked from this judgment.
The Applicant was born in Brazil on 1 October 1958 and is a citizen of that country. His parents and his brother reside in Brazil. He married in Brazil in 1983, however that marriage ended in divorce in November 1992. He has no children.
The Applicant travelled to Australia on 30 November 1993 as a holder of a Class 670 (visitor) visa issued in Brasilia on 17 November 1993 and valid for multiple entries to Australia until 17 November 1994. Upon his entry into Australia his visa operated as a temporary entry permit valid for a stay of three months.
On 21 February 1994 the Applicant married an Australian permanent resident, Regina Miranda On 25 February 1994 they left Australia for a honeymoon. They returned to Australia on 27 February 1994, and again the Applicant's visa operated as a temporary entry permit valid for a further stay of three months from the date of his arrival.
On 13 May 1994 the Applicant lodged an Application To Remain Permanently in Australia at the Brisbane office of the Department of Immigration and Ethnic Affairs (the Department). That application included a nomination of the Applicant by Mrs Miranda. The application was accompanied by various supporting documents including the marriage certificate and various statutory declarations attesting to the genuineness of the marriage.
On 16 January 1996, following advice to the Department from the Applicant that his marital relationship was no longer continuing, a delegate of the Minister at the Brisbane office of the Department made a decision to refuse his application for a Class 820 entry permit. This decision was affirmed by the Migration Internal Review Office (MIRO) on 19 February 1996.
As a result of amendments to the Migration Act 1958 made by the Migration Reform Act 1992, the legislative provisions applicable to the application are those in existence immediately prior to the coming in to force of the amendments on 1 September 1994. The applicable regulations are therefore the Migration (1993) Regulations (the Regulations), which were made pursuant to the Migration Act as it stood prior to 1 September 1994.
The requirements for a Class 820 (extended eligibility (spouse) after entry) entry permit are set out at Part 820 of Schedule 2 of the regulations (the Schedule). The prescribed criteria so far as they are relevant are:
820.72 Criteria to be satisfied at time of application (entry permit - after entry)
(a) is not the holder of a Class 771 (transit) entry permit; and
(b) meets the requirements of subclause (2), (3), (4), (5) or (6).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of an Australian citizen or an Australian permanent resident; and
(b) the marital relationship between the applicant and the Australian citizen or Australian permanent resident referred to in paragraph (a) is both genuine and continuing; and
(c) the applicant is nominated by that Australian citizen or Australian permanent resident ...
820.73 Criteria to be satisfied at time of decision (entry permit - after entry)
820.731(1) In the case of an applicant referred to in subclause 820.721(2), (3), (4) or (5), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3) ...
Subclauses (2) and (3) of clause 820.731 refer to situations where the spouse of the visa applicant has died or where the relationship has ended because of domestic violence against the visa applicant.
The term 'spouse' is defined in Regulation 1.3 of the Regulations as follows:
a person who has entered into a marriage recognised as valid for the purposes of the Act, if:
(i) the marriage has not been ended by divorce or the death of one of the parties; and
(ii) the parties are not living separately and apart on a permanent basis ...
The Tribunal has before it in this matter the relevant file of the Department and further information provided to it by the Applicant in the course of this review. A hearing of the matter took place in Brisbane on 18 June 1996 at which the Applicant and Ms Monique De Bartolomeo attended and gave sworn evidence. The information before the Tribunal included:
* translation of a divorce decree issued by the Civil Registry in Rio De Janeiro, Brazil, recording the Applicants divorce from his former spouse on 20 May 1993;
* a certificate of marriage between Antonio Dutra Goncalves and Regina Miranda dated 21 February 1994;
* a note by a Departmental officer dated 13 November 1995 recording that the Applicant had advised the Department that he and his wife were separated and his wife would not agree to resume their relationship;
* a statement dated 19 February 1996 by the Applicant which accompanied his request for review by MIRO;
* a further statement by the Applicant dated 19 April 1996 which accompanied his application for review by the Tribunal.
In the last of these documents, the statement which accompanied the Applicant's application for review by the Tribunal, he states as follows:
I accept that the marriage between my wife, Regina Miranda and myself is irretrievably broken and that at this point there is no chance or desire of reconciliation between us; however I wish to emphasise that my marriage was never contrived for dubious reasons and that I feel that I have been the victim of particular damaging circumstances.
The Applicant then proceeded to outline the history of his relationship with Ms Miranda before concluding:
what I wish to draw attention to is that the fact that if ours had been a marriage of convenience I would have presented my case, my application much earlier than I did. Our sole intention was to together as husband and wife and lodging my application was late step after we had been married for long and after we were absolutely sure of our feelings for each other.
My situation now is that despite the disappointment of our failed marriage I would like to be considered for residence as I have become very fond of Australia and by staying here all this time I have renounced many things such as my usual way of living and work possibilities in Brazil.
I never acted with a bad intention and if Regina and I did not get together again it was not because of my fault but because of external circumstances beyond my control.
In view of the above I would be grateful if the Tribunal could give sympathetic consideration to my plight.
In his evidence to the Tribunal at the hearing of this matter, the Applicant confirmed that his relationship with Ms Miranda had finished so far as he was concerned in early November 1995 when he approached the Department to advise them that in his view there was not prospect of his reconciliation with his wife. He stated that whilst they had been separated for some time prior to that date, he regarded the relationship as continuing during that time because of his ongoing attempts at reconciliation with his former wife.
In his evidence the Applicant also refereed to his current defacto relationship with Ms De Bartolomeo, which he said had begun in December 1995. He stated he was currently waiting for a divorce from Ms Miranda so that he could marry Ms De Bartolomeo. The Applicant's evidence concerning his relationship with Ms De Bartolomeo was confirmed in her evidence to the Tribunal.
As the legislative provisions set out above indicate, the Tribunal is required to be satisfied on an application for a Class 820 entry permit that:
* the applicant is the spouse of an Australian citizen or permanent resident; and
* the marital relationship is between the Applicant and the Australian resident is genuine and continuing; and
* the Applicant is nominated by that Australian citizen or resident.
These criteria must be satisfied both at the time that the relevant application is lodged and at the time of the Tribunal's decision. Further, the Regulations are clear that the Applicant's Australian 'spouse' at the time of the application and at the time of the decision must be the same person.
The evidence before the Tribunal from the Applicant himself clearly establishes that he cannot meet these criteria as his relationship with Ms Miranda is no longer continuing. The Tribunal therefore finds that the Applicant is unable to satisfy the requirements of clause 820.731 of the Regulations. As the Regulations require that an Applicant satisfy all the relevant criteria for the grant of a visa, this application must therefore fail.
The Tribunal pursuant to section 349(2)(a) of the Migration Act of 1958 affirms the decision under review to refuse the grant of a Class 820 (extended eligibility (spouse) after entry) entry permit to Antonio Dutra Goncalves.
I certify that this and the six preceding pages are a true copy of the Decision and Reasons for Decision of Bruce Henry.
The Tribunal affirmed the decision under review to refuse the grant of a Class 820 (extended eligibility (spouse) after entry) entry permit to Antonio Dutra Goncalves.