Applicant: Mr Paul Joseph Hayes Principal: Mr Jee Wah Leng IRT Reference: N93/00597 #number 2993 [1993] IRTA 2993 (2 December 1993)

In order to be issued with visa or an entry permit under the Migration Act 1958 (the Act) and the Migration Regulations (the Regulations), an applicant must meet the criteria set out in the Regulations regarding that type of visa or entry permit.The Migration Regulations 1989 continue to apply to this application and this review by the operation of Regulation 8.2 of the Migration Regulations. Regulation 34A of the Regulations provides that applicants must satisfy the prescribed criteria, other than health and public interest criteria, at the time of the application for the visa or entry permit and as applicable at that time. In this case the relevant time is 5 August 1991.

The requirements Mr Leng must satisfy in order to be given the visa he seeks are set out in Schedule 2 to the regulations. Item 62 in Part 1 requires that an applicant meet the criteria specified in regulation 79A and two further items symbolised by the signs D and H1. These signs are explained in Schedule 1 to the Regulations. "D" means "the applicant meets relevant public interest criteria". "H1" refers to health criteria which it is unnecessary to set out in full. "[P]ublic interest criteria" are defined in regulation 2, and again it is unnecessary to set them out in full. The Tribunal notes that Mr Leng has already met both these requirements: the character test as recently as November 1992 and the health test in February 1992. However, if the Minister adopts the recommendation made by the Tribunal, it may be necessary to update these tests.

In this review the Tribunal is primarily concerned with reg 79A of the Regulations, which provides as follows (omitting matter irrelevant to this application):

79A. (1) The additional criteria for an interdependency (temporary) visa are that, at the time when the application for the visa is decided:

(A) is an Australian citizen or Australian permanent resident; and

(B) is not a member of the family unit, or other relative, of the applicant;

being a person who has a relationship with the applicant that is acknowledged by both and that involves:

(E) having a continuing commitment to mutual emotional and financial support; and

(ii) satisfies the Minister that the relationship with the sponsor:

(B) has existed for a period of at least 6 months (or such lesser period as the Minister specifies) immediately before the application is made; and

(3) An applicant referred to in paragraph (1)(a) who is less than 18 years of age at the time the application is made is not entitled to be granted an interdependency (temporary) visa.

Mr Leng is sponsored by a person (Mr Hayes) who is an Australian citizen and is not a member of the family unit, or other relative, of Mr Leng. The relationship is acknowledged by both. This means that Regulation 79A(1)(a)(i)(A) and (B) are satisfied.

The more difficult issue is whether it is possible to characterise the relationship between the two men as one which fits the statutory parameters set out in Regulation 79A(1)(a)(i) (C), (D) and (E) and 79A(1)(a)(ii). Not every intimate relationship between two persons will justify the granting of an interdependency visa: see for example Re Thapa (IRT Decision No. N92/01932, delivered 22 September 1993), at p 6.

It is appropriate to go to some detail in analysing the regulation. In this analysis the Tribunal keeps in mind that caution must be exercised in using as aids to interpretation judicial decisions on similar provisions in other legislation: see Pearce and Geddes Statutory Interpretation in Australia (3rd ed), 4-5. The Tribunal also keeps in mind that the use of dictionaries should not be a substitute for ascertaining the meaning of the language of the legislation in its context: see Pearce and Geddes, 63-64.

The regulation is hard to understand, and uses words that can bear a range of meanings. When a provision is ambiguous or obscure, it is permissible to consider material not forming part of the provision: Acts Interpretation Act 1901 (Cth) ss15AB(1)(b), 46. (Again, this technique should be used cautiously: Secretary, Department of Social Security v Sword (1991) 23 ALD 52, 55.) In the Senate the Statutory Rules introducing the provision (No 60 of 1991) were debated on 5 June 1991 (Hansard page 4336 ff). The speeches made in that debate support the following propositions. First, the legislation is beneficial: it was "mostly directed at giving homosexuals rights": (see especially p 4342, per Senator Ray). Beneficial legislation should usually be interpreted liberally or beneficially: see, for example, Pearce and Geddes) 164-165; MacAdam and Smith Statutes (2 ed), 240-241.

Second, the provision is not intended to directly reflect provisions dealing with heterosexual marriages (pp 4339, 4342, 4343 per Senator Ray). Third, the language used is purposely ambiguous to avoid expressly singling out homosexual relationships in the regulations (pp 4343-4344 per Senator Ray). (Indeed, it seems that the legislation could apply to relationships that are not sexual: p 4345 per Senator Bourne.) Fourth, that at least one of the problems sought to be remedied by the provision was that homosexual partners of Australian residents were forced to disguise their real reason for wishing to come to Australia in order to enter Australia (pp 4342-4 per Senator Ray). To this it should be added that there can be little doubt that the provision was enacted against the background of a situation where, in many cases, the two persons did not live in the same country.

A technique of interpretation that is sometimes useful in understanding statutes is to act on that proposition that: " It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently." (Pearce and Geddes at 79). The Tribunal is aware that this technique should be applied with caution.

The Tribunal has gained some further assistance from court and tribunal decisions dealing with heterosexual relationships. Although relationships of interdependence are not to be equated to heterosexual marriages or to de facto arrangements, it is clear that a common factor is a relationship between two persons which has a certain level of intensity. Decisions explaining how a court or tribunal ought to go about approaching and analysing criteria and evidence in heterosexual models of such relationships are, if used with caution, helpful in dealing with regulation 79A. An example is the approach to the term "bona fide domestic relationship" between two persons of the opposite sex which was adopted by Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128, 131:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case it will be question of fact and degree, a jury question, whether any relationship between two related persons of the opposite sex meets the statutory test.

A further example can be found in the expression "...the commitment of each to the other to a greater extent than, and in a manner qualitatively different from, the commitment of either to anyone else" (Re Donald v Director-General of Social Security (1983) 5 ALN N185).

In considering the elements of regulation 79A it should be borne in mind that the entire relationship is only required to be 6 months old. In such a relatively short time it is unlikely that the legislature expected that patterns or structures of behaviour, or arrangements between the parties, would have developed the stability, depth and sophistication that might be expected in a more mature relationship.

With these factors in mind, the Tribunal turns to the statutory criteria.

"Involves" The relationship must be one that "involves" the attributes of residing together, being closely interdependent and having the said commitment. The Maquarie Dictionary (2nd revised edition) defines "involve" as having, among other meanings, "1. to include as a necessary circumstance, condition, or consequence....". The word "involves" does not imply that the attributes included in the relationship must bear any necessary proportion to the entirety of the relationship.

"Residing Together" The expression "residing together " is not defined in the Act or the Regulations. The Macquarie Dictionary definition of "reside" commences "1. to dwell permanently or for a considerable time; have one's abode for a time..." (emphasis added). Interestingly, the Department's Procedures Advice Manual ("the manual") in its reference to this definition (Procedures Advice Manual Update No 122 19/1/93) omits the words underlined above, thereby perhaps giving the impression that permanent or quasi-permanent residence together is required.

Cases involving the use of the word "reside" occur in a number of contexts, including family law, taxation law and welfare law, and it would not be helpful to draw direct analogies from those areas to this very different context. However, it is useful to note that the word "reside" can have a range of meanings, which will depend on the wording and underlying context of the statute in which it appears: see Hazfa v Director General of Social Security [1985] FCA 164; (1985) 6 FCR 444, 449. It is possible, for example, for a person to be a "resident" simultaneously in more than one place: see Hazfa, 450. The word "reside" can refer to temporary residence at a hotel for a day or two, or residence at a holiday camp: see West v Coombes [1941] VicLawRp 31; [1941] VLR 134, 137-8; Phonographic Performance Ltd v Pontin's Ltd [1967] 3 All ER 736,739.

Regulation 79A does not expressly say that the applicant and his or her partner must live together for a continuous period of six months or for any specific time. If the legislature wished to so provide, it could easily have done so. Indeed, just such a provision was made in relation to heterosexual de facto partners at the time reg 79A was made. Regulation 3A, introduced along with reg 79A in Statutory Rule No 60 of 1991, defines such partners in part as persons of different sexes who "have lived together, for the whole of the immediately preceding 6 months...".

In Re Greinacher (IRT Decision No W92/01443, delivered 17 May 1993) the Tribunal observed:

It is now common ground that parties to a de facto relationship may be living together on a genuine domestic basis notwithstanding that they are temporarily separated: In Re Fagan, Deceased (1980) 23 SASR 454 and Re Hurrell and Director General of Social Security (1984) 7 ALD 33, where the Administrative Appeals Tribunal ("AAT") found that the test must be whether the parties in their minds regard the relationship as continuing despite the temporary physical separation. As was stated by Darling J. in R. v. Creamer [1919] 1 KB 564 at 569 and referred to in a decision of the AAT in Re Australian National Railways Commission and Gerlach (No. 2) (1987) 12 ALD 486, the question is whether the "consortium" between the parties has been determined by mutual consent. The various decisions on this question indicate that the reasons and circumstances surrounding the separation are of some importance.

In deciding whether a relationship involves residing together it may be appropriate to consider factors such as the total time spent in shared accommodation, the type of accommodation, the ease or difficulty with which co-residence could be accomplished, whether the parties shared their environment with others, and the overall context of the co-residence, including whether it was reasonably possible for the two persons to reside for significant periods of time in the same country. It is also relevant that the entire relationship need be no more than 6 months in length. To take an extreme example, then, the sharing of a room for a single night out of the 6 months would not be a period worthy of consideration. If the two persons were both resident in the same city for the entire 6 months of the relationship, then a period of 1 month's co-residence might not be worthy of consideration, although it might be if, for example, one of the parties was hospitalised for a significant proportion of the balance.

"Closely Interdependent" The word "interdependent" is defined in the Macquarie Dictionary as "mutually dependent; dependent on each other". Further reading of the dictionary reveals a thicket of intertwined definitions, further complicated by the existence of two similar words "dependent" and "dependant". The former is the preferred adjectival form, and its meanings include "1. Depending on something else for aid, support, etc". The word "depend" is in turn defined in part as meaning "1. to rely; trust....2. to rely for support, maintenance, help, etc...". Both the dictionary definition and the regulation leave unanswered and apparently unrestricted the question as to the matters in respect of which each partner should be dependent on the other. In ordinary speech we speak of persons being "dependent" for a number of needs. Friends, spouses or relatives may depend on one another psychologically, emotionally, spiritually, physically, financially, intellectually, or sexually. A person may be dependent even though he or she does not actually receive support, so long as there is a need to rely upon another for support: see Fisher and Spender JJ in Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 414-5, citing observations of Gibbs J in Kauri Timber Co (Tas) v Reeman [1973] HCA 8; (1973) 128 CLR 177 and Aatjes v Kearney [1976] HCA 5; (1976) 8 ALR 455. This last shade of meaning may be especially apposite when two persons who wish to be together are separated by oceans and national borders.

Some assistance may be gained in the light of the additional requirement of a continuing commitment to mutual emotional and financial support. It is not likely that the legislature would have separately mentioned those two aspects if it had been thought that the term "interderpendence" was to focus mainly or exclusively on them. It would seem that the term "interdependent" has work to do in the regulation other than, or in addition to, solely referring to financial and emotional support, although in the normal course of human events it may well be that there is overlap. The Tribunal has previously observed in Re MKR (IRT Decision No. V92/01642, delivered 21 May 1993) that the phrase "closely interdependent" refers to the parties relying closely on each other for emotional and/or financial support. This interpretation has been followed in Re SP (IRT Decision No. N93/00319, delivered 5 October 1993) and in Re Rondina (IRT Decision No. N92/01829, delivered 31 August 1993). The Tribunal as presently constituted does not understand these decisions as saying or necessarily implying that those concepts are the sole subject matter of interdependence.

The word "interdependent" is meant to refer to a state of affairs where the parties rely on or trust each other for a variety of types of support. Such a state of affairs could occur in a relatively wide range of relationships - for example, between friends or between business associates. The added requirement that they be "closely" interdependent narrows that range by describing a situation that is, relatively, close in the sense that the parties rely on or trust each other rather than or to a greater extent than outside persons or agencies. In appropriate circumstances interdependence may exist even though the parties are not in receipt of support in fact, so long as there is a need to rely upon another for support.

"Continuing commitment to mutual emotional and financial support" The next criterion is whether the relationship "involves ..... having a continuing commitment to mutual emotional and financial support". The term "mutual" has a range of meanings, depending on its context. The Macquarie Dictionary defines "mutual" thus: "1. possessed, experienced, performed, etc, by each of two or more with respect to the other or others; reciprocal: mutual aid. 2. having the same relation each towards the other or others: mutual foes. 3. of or pertaining to each of two or more, or common: mutual acquaintance. 4. pertaining to mutual insurance: a mutual company." In Gye v McIntyre [1991] HCA 60; (1991) 98 ALR 393, the High Court considered the phrase "mutual credits, mutual debts or other mutual dealings" in s86 of the Bankruptcy Act (1966). Although references from such contexts should be used cautiously when considering human relationships, it is helpful to note that the Court observed (at 402) that "[i]n the context of s 86, the word "mutual" conveys the notion of reciprocity rather than that of correspondence. It does not mean "identical" or "the same"."

It is not the support which is necessary, but the commitment. It is possible to be committed (and continually so) to a state of affairs even if that state does not yet exist. There are many religions and ideologies whose followers share a commitment to an as yet unrealised state of events and as yet unperformed activity. This use of language makes sense in the light of the fact that in many cases of interdependency the tyranny of distance will mean that, until the parties are together in Australia (or some other place) day to day factual support may not be possible. It also means that it is possible to take a long-term prospective view of the relationship, and to look for such commitment over time, even if at any one point in time the support is skewed in favour of one party or the other.

Support, or a commitment to support, should be considered in the context of the actual needs and desires of the parties. To the extent that those needs are minimised, so will be the degree of evidence necessary to show a commitment to support.

The words "continuing commitment to mutual... financial support" are chosen to bear a particular meaning which is somewhat open-ended. It would not be helpful to narrow that meaning by substituting for that phrase the expressions "pooling of resources" or "sharing of expenses" as those terms are sometimes used in analysing heterosexual relationships in relation to other legislation (see, for example, Re Tilley and Secretary, Department of Social Security 15 ALD 77, 79).

Finally, it is very relevant to note that the Tribunal in MKR, Rondina and Thapa (Supra) has observed that "financial support" can be construed broadly, to include money's worth as well as actual cash. Thus a jointly beneficial situation where one party was the breadwinner and the other the home-maker could be one in which there was mutual financial support.

"Genuine" The Tribunal interprets the word "genuine" in the regulation as meaning that the relationship should not be a sham. It should not be accidental or contrived: see Re Secretary, Department of Social Security and Villlani [1990] AATA 68; (1990) 20 ALD 49, 53. The term does not require the relationship to fit any particular pattern nor does it have any moral connotation. Provided the relationship as it is presented is what it appears to be then the requirement that it be "genuine" will be satisfied.

The Tribunal considered material contained in the Department's file and the Tribunal file. This included written submissions and statements of fact by both Mr Hayes and Mr Leng, together with summaries of interviews conducted by Departmental officers, and testimonials and statutory declarations made by family and associates of the two men. The Tribunal held a preliminary meeting before the hearing, following which detailed written submissions were made by the men, and in particular by Mr Hayes. Although not all the testimony was, strictly speaking, "sworn" evidence, the Tribunal sees no need to exclude it or to give it lesser weight on that account. See FC of T v Grbich and Shen (1993) ATC 4564, 4571. Evidence of communication and financial arrangements is corroborated by copies of envelopes, telephone bills, and bank statements.

In evidence, Mr Hayes and Mr Leng both appeared to be credible witnesses. Mr Leng was somewhat more diffident in his attitude, but at no stage did he attempt to evade questioning. He forthrightly admitted, for example, that apart from his relationship with Mr Hayes he stood to gain if he came to live in Australia. His demeanor can readily be understood when it is recalled that he was giving evidence about sensitive private matters in a foreign country and in a language that is not his first language. The Tribunal should be slow to make negative assumptions based on the demeanor of witnesses in a cross-cultural context: see, for some discussion of these issues, R v Anunga & Others (1976) 11 ALR 412; Dixon, Hogan, Werzbicka, "Interpreters: Some Basic Problems" (1980) 5 LSB 162. Although subjected to vigorous questioning on his credibility during the course of the hearing, Mr Leng did not change his evidence, nor were any contradictions revealed in his evidence.

Both Mr Hayes and Mr Leng had some difficulty articulating the essence of their relationship - but not more so, than would, perhaps, a party to a heterosexual marriage. Mr Hayes' and, to some extent, Mr Leng's written submissions (some parts of which are extracted below) went into more depth about the feeling the two men have for each other.

Paul Hayes met Leng Jee Wah while Mr Hayes was on holiday in Penang in September 1989. They spent one week together before Mr Hayes returned to Australia. It would seem that Mr Hayes made the first approach to Mr Leng. However, at this stage Mr Hayes was somewhat wary that Mr Leng might well have been using him as a so-called "ticket" to come to Australia. So although the men initially formed an attraction, Mr Hayes at that time did not suggest that Mr Leng come back to Australia with him.

Between September 1989 and September 1990 the men communicated by correspondence and telephone calls. In September 1990 Mr Hayes returned to Malaysia and stayed with Mr Leng for some six weeks. This stay was in the Federal Hotel in Penang. In verbal evidence the men dated their relationship from this time, although in the initial application form Mr Leng suggested it began in September 1989. This anomaly, which was not raised at the hearing, would not appear to affect the overall integrity of the evidence given by the men; in any event, the question of when the relationship became "closely interdependent" is largely one of definition. After Mr Hayes' departure, Mr Leng took unpaid leave in February 1991, entered Australia on a visitor's visa and stayed for almost a month with Mr Hayes. During this time they stayed at Mr Hayes' residence at Wollongong. During the time between September 1990 and February 1991 the men corresponded by telephone call and letters. Between February and July 1991 the men again communicated with letters and telephone calls and in July 1991 Mr Hayes returned to Penang and stayed for approximately three months, again staying at the Federal Hotel in Penang and returning to Australia in October 1991. On 5 August 1991 (that is, about a third of the way through the third stay), Mr Leng made an application for an interdependency (temporary) visa.

At the time of the application, therefore, the men had spent approximately fourteen weeks together in the twelve months preceding the application and a further week prior to that in September 1989. In January 1992 Mr Leng was interviewed at the High Commission in Malaysia. In March 1992 Mr Hayes was interviewed at the Wollongong Regional Office of the Department. In June 1992 Mr Hayes returned to Malaysia and with Mr Leng he went, in July, to the Australian High Commission of Australia to discuss the processing of the application. At that time he was asked for statutory declarations and phone bills. These were provided in August 1992. In March 1993 Mr Leng was advised that his application had not been approved. In April 1993 Mr Leng arrived in Australia for a one month visit, during which the appeal to the Tribunal was lodged. Mr Leng was on unpaid leave and he stayed with Mr Hayes at his Australian residence. In May 1993 Mr Hayes went to Malaysia to be with Mr Leng and stayed there for some four and a half months - the stay being interrupted by his recall to Australia to assist in the arrangements for the possible transfer of his mother to a nursing home.

During his time in Malaysia, Mr Hayes has come to know the family of Mr Leng. His most recent stay was spent living in the family home in an extension built for the two men with money supplied by Mr Hayes. Mr Leng's elder brother has provided a statutory declaration dated 22 July 1992 attesting to the family's knowledge and approval of the relationship. Mr Leng's parents have provided an earlier letter dated 22 February 1992 approving of Mr Hayes' sponsorship of Mr Leng. Photographs provided by the men show Mr Hayes with various members of Mr Leng's family, including his father.

When Mr Leng came to Australia he met a number of Mr Hayes' friends and relatives including Mr Varley, an officer-holder in the Australian Vietnam Veterans' Association and President of the Illawarra Sub-branch of the Vietnam Veterans' Association of Australia; Mr Hayes' cousin, Mr Martin Hennessy, and Ms Jean Johnson, a longtime friend of Mr Hayes. All these persons have provided statutory declarations attesting to the fact that they have met Mr Leng, that they are aware of the relationship, and that they believe it will be a lasting one. In a statutory declaration dated 28 July 1992, Mr Hayes' mother attests to her awareness of his "friendship" with Mr Leng, and that she looks forward to "his coming to be with Paul in the future". A photograph depicts Mr Leng with Mr Hayes' aunt.

The Departmental officer who made the previous recommendation to the Minister concluded that the relationship did not involve residing together. The recommendation said,

"I do not consider that they have a relationship that involves living together, despite their claims. Their claims are based on short periods together in Penang and a trip by the applicant to Australia. I consider these periods to be holidays and that they do not exhibit those characteristics of shared tenancy and shared costs and responsibilities that are expected of residing together."

The regulations do not specify that the relationship must be one that "involves living together", and it may be that the use of this word in place of the word "residing" has affected the decision. The assessment is perhaps based on the Department's Procedures Advice Manual Update No. 122 dated 19 January 1993. That document, in discussing the words "residing together", says "some applicants' claims in this area are based on holidays and periods of stay in hotels. These are not regarded as being within the normal dictionary meaning of what constitutes 'residing together'. 'Reside' is defined in the Macquarie Dictionary as 'to dwell permanently' in a place."

It will be apparent from the discussion of the word "reside" above that this is both a misquotation of the Macquarie Dictionary and an overly narrow interpretation of the meaning of "reside". The policy guidelines issued as Update No. 23 to the Procedures Advice Manual dated 8 July 1991 say:

"the decision-maker will have regard to the following factors:

- the basis on which responsibility for housework is distributed.

- joint utilities accounts (electricity, gas, telephone);

- correspondence addressed to the applicant at an address and correspondence addressed to the same address or correspondence addressed to both of them."

Although some of these factors, if proved, would be evidence that two people were residing together, their exclusive use suggests too rigid an interpretation of this requirement. The criteria suggested could, for the most part, only be satisfied by persons who were living together on a permanent basis and, in part, only by persons who had taken a number of formal legal steps pursuant to that arrangement. As has been observed this is not a requirement of the regulations. Indeed, the Procedures Advice Manual Update No. 122 dated 19 January 1993 concedes "There is no requirement that the couple reside together....continuously for the six month period immediately prior to application."

A similar formal and legalistic approach is apparent in the Departmental officer's observations that "I consider these periods to be holidays and that they do not exhibit those characteristics of shared tenancy and shared costs and responsibilities that are expected of residing together." This observation is based in part on a misreading of the facts. For Mr Leng the time the two were staying at the same premises in Malaysia was not a holiday: he went to work each day. In any event, there is no reason in principle why a relationship that develops or for the most part occurs during holidays need not be as worthy of consideration under regulation 79A as any other. The concept of "shared tenancy" does not appear in the regulations. If it is meant to mean permanent tenancy, or that the parties must be legally co-lessees or joint owners of property, it is obviously an impermissible addition to regulation 79A. If it is merely a synonym for "residence" then it is circular and unhelpful. If it is an oblique reference to a commitment to mutual financial support then it should be dealt with under that rubric.

In this case in almost 12 months between the commencement of the relationship (September 1990) and the application for an interdependency (temporary) visa the men spent approximately 14 weeks together. This time included a period of 6 weeks in Malaysia, a period of just under a month in Australia, and a further period of approximately 1 month in Malaysia, the latter followed immediately by another 2 months in Malaysia. The periods in Malaysia were spent at a hotel, the period in Australia in the flat occupied at the time by Mr Hayes. During the time Mr Leng was in Australia he was on unpaid leave. The period in Malaysia was a time of normal work responsibilities for Mr Leng. The two men were in each other's company as much as was reasonably possible during these times. (Of course, Mr Leng had to go to work during the day time, but Mr Hayes' practice was to take him there and collect him in the afternoon.) During the trip to Australia by Mr Leng the two men arranged a division of domestic tasks. Their times together since the application reflect a continuation of these arrangements. In these circumstances it is not difficult to find that the relationship involved residing together between September 1990 and the date of the application and that it still involves residing together.

Following the preliminary meeting Mr Hayes and Mr Leng provided some information about their domestic arrangements during the occasions when they were occupying the same premises. The men have arrived at a situation whereby they have mutually agreed on a distribution of tasks such as cooking, cleaning, washing and housework. It is also apparent from Mr Hayes' written submissions that when he is in Malaysia during the daytime, in particular when Mr Leng is at work, the situation is not particularly enjoyable. He refers to his days waiting for Mr Leng to come home from work as variously "monotonous", "plain boring" and "not a life of ease". Mr Hayes can only stay in Malaysia for two months at a time and every two months he has to travel to Thailand to renew his visa.

It is apparent from the submissions that the social activities of the two men are fairly restricted - they seem to prefer each other's company although from time to time in Australia they visit Mr Hayes' mother and other friends. For the most part, their time seems to be spent, in the words of Mr Leng, "stay in the house and watch TV and talk about our future". Mr Hayes has given evidence that he prefers to live in a country which he finds somewhat unpleasant and to be away from the company of his family, his fellow Vietnam veterans and his familiar environment in order to be with Mr Leng. Although Mr Leng honestly admitted that his material circumstances would clearly be enhanced if he came to live in Australia, nonetheless it is also clear both from his written statements and from the evidence he gave the Tribunal that he loves Mr Hayes and wishes to be with him in the future. The evidence of both men is that they are sexually faithful to each other. In those periods since September 1990 when the men were in the same country (before and after the application) the men have spent nearly all this time in each other's company. (See written submissions dated 26 March 1992, record of interview dated 30 March 1992.) Mr Hayes' evidence is that they have a great deal in common, they both like the same things, both prefer to stay at home and watch TV rather than to be going out to clubs, etc. Mr Hayes says:

"since we have met my whole life has revolved around Jee and his whole life has revolved around me."

"Finally, may I say in conclusion, that we are, due to our quiet dispositions, two lonely people drawn together and becoming more and more dependent upon each other for happiness." (Statement submitted at the time of the first interview on 26 March 1992: folio 58 in Departmental file .)

"I [sic] like to stay with Paul all my life in the future and be happy together." (Written submission made after the preliminary meeting: folio 122 on Tribunal file.)

The concept of the men's lives "revolving around" each other is repeated in a joint written submission made after the preliminary meeting (folio 126 on Tribunal file).

The Tribunal finds that the men were closely interdependent between September 1990 and the date of the application and that this situation continues.

The Departmental recommendation acknowledged that there was a continuing commitment to mutual emotional support. This assessment was based on interviews and consideration of written submissions. This assessment is borne out by the evidence of the two men. In written submissions Mr Hayes made after refusal of the original application he noted that when the men are apart they give each other emotional support through their weekly letters and telephone calls. To some extent it is apparent that Mr Hayes is less likely to communicate his feelings than Mr Leng: he says that he "bottles things up". His evidence was that nonetheless Mr Leng can tell by "looking at" Mr Hayes if something is wrong and offers assistance and support which is, sometimes at least, successful. Mr Leng offered to retrieve Mr Hayes' mother from a nursing home and look after her - a proposal Mr Hayes regards as impractical. Mr Hayes gave verbal evidence that he tells Mr Leng his problems. Mr Leng gave evidence that if he was, for example, depressed, Mr Hayes would offer support. He gave evidence that he found it easy to tell if Mr Hayes was unhappy and likewise would offer support. Extracts from written submissions cited above in relation to interdependence are relevant in this context. It is clear that the men not only provide each other with emotional support but that they have a continuing commitment to do so, and that the commitment existed from September 1990 to the date of application.

The Departmental officer did not find that there was a continuing commitment to financial support. The officer said "They have provided no evidence of shared assets and the only evidence of joint financial arrangements is a joint bank account, opened in 1990 and used only occasionally". This statement overlooks evidence of the commitment set out at folio 57 of the Department's file. This document signed by Mr Hayes and headed "Future Intentions of Paul J. Hayes and Leng Jee Wah should Jee be permitted to come to Australia" includes the following:

"As soon as Jee arrives I intend changing my will, making him the sole beneficiary of my assets.

We intend opening a joint account at the IMB Society....

As soon as he finds full time, permanent employment we intend to invest in buying a small house in the Wollongong area."

Mr. Hayes' evidence is that when the men are together, their finances are used jointly. (See submission at folio 64 of Tribunal file.) At present both the parties are in receipt of permanent income. Mr Leng is employed as a clerk in the Malaysian Department of Consumer Affairs. His income is RM 450 ($A250.00) per month. Mr Leng is able to save some money from his wages, and accordingly is not in need of any direct support from Mr Hayes, although Mr Hayes sends him about $10.00 Australian a week, which was previously about 25 per cent of Mr Leng's income. Mr Leng banks this amount and it is now in a joint account. Mr Hayes is in receipt of pensions arising out of his army service totalling $1325.00 per fortnight. (Defence Forces Retirement and Death Benefit - $741 per fortnight; TPI war pension - $584 per fortnight). When Mr Hayes was most recently in Malaysia the financial arrangement was that Mr Leng would pay the board of the two men and Mr Hayes would pay everyday expenses. Mr Hayes paid approximately $A2,000.00 for the construction of the extension to the Leng family home in which the men reside; Mr Leng is paying for the furniture.

Mr Hayes has a number of bank accounts in his name and Mr Hayes and Mr Leng also have two joint accounts. In Mr Hayes' name the evidence is that he has about $7,000.00 to $8,000.00. Whilst in Malaysia, Mr Hayes contributes from one of his accounts to the everyday living expenses of the two men. The amount in the joint accounts is approximately $A1600.00 in an Australian building society, and a small amount is in the Malaysian account, which was depleted to pay for Mr Leng's fare to Australia just prior to the hearing.

The two men plan (and have planned at least since their initial interview: see Departmental file folio 57) to purchase a house together if Mr Leng comes to Australia. Mr Leng readily acknowledges in evidence that until he is employed he will be dependent on Mr Hayes, but that if and when he gains employment he will contribute to the purchase of the house.

There is and has been some imbalance in the financial position of the two men. This may be in part explained by the relative wealth of the two societies. Mr Hayes has more money in his private accounts than in the joint accounts. Mr Hayes' pensions are paid into a private account, not into the joint accounts. Mr Hayes is in receipt of more money and has greater savings than Mr Leng. This might suggest that Mr Hayes' commitment is not total.

On the other hand, there is no evidence that Mr Leng has any particular unsatisfied financial needs. When Mr Leng has been in financial need - for example, when he has been on unpaid leave in Australia (both before and after the application) - Mr Hayes has made appropriate payments. What was a small payment for Mr Hayes was a significant income supplement for Mr Leng, especially when Mr Leng's income was lower than it is now. Both men contribute to their living expenses in Malaysia - Mr Hayes' contribution coming from one of his personal accounts. Mr Hayes contributed far more than Mr Leng to the extension at the Leng house in which they live, although Mr Leng provided the furniture.

There is nothing in the regulation, nor in the ordinary experience of human affairs which the Tribunal is entitled to bring to this review, which would suggest that it is a necessary ingredient of a relationship, no matter how close, that the participants should have totally joined or indistinguishable financial arrangements. As noted above, "mutual" need not mean identical or the same. It is consistent with the concept of a commitment to mutual financial support that one party might earn more than the other, contribute more or less than the other, or retain some relative financial independence. Again, it is relevant to consider, as the men's written submission says, "it is very hard to be financially dependent on each other living in 2 countries with a vast difference in wages and living conditions" (folio 128 on Tribunal file).

The parties have a continuing commitment to mutual financial support that existed between September 1990 and the date of the application and that has continued and developed.

The Departmental file indicates little doubt as to the genuineness of the relationship. There was some initial concern expressed by Departmental officers regarding the age difference between the two men. In the main, this appeared to involve concern that Mr Leng was relatively too immature fully to comprehend the nature of the commitment he was making. It may also have reflected an unconscious value judgement about the propriety of the relationship. However, although the age difference is part of the composite picture which must be considered, it is clear that it is a matter which both men have considered and which neither of them feels likely to threaten their relationship. Both men have now had ample time (and ample time separated from each other) to consider the relationship. Mr Hayes has not disregarded the issue: he has understandable concerns that, to quote him, "when I am 80, Jee will be 50", but it is clear that neither he nor Mr Leng considers this a barrier to a successful relationship. The relations and associates who gave statutory declarations attesting to their belief in the genuineness and prospective longevity of the relationship were all aware of the age difference.

Due to the time taken in the processing of this application and in the review process, the Tribunal is in a better position than the officers initially dealing with it were to assess whether or not it is likely that the relationship will continue. As noted above, friends and relations of the two men attested as long ago as June 1991 that the relationship gave every appearance of being a long lasting one. In sworn evidence both men testified that they intended and believed that the relationship would continue. There is nothing to suggest otherwise. It has continued and continues to date. It is likely to continue.

The Tribunal recommends that Mr Leng be granted an interdependency (temporary) visa, subject to his being found to meet the health and public interest criteria.