Asif v Minister for Immigration & Multicultural Affairs
[1999] FCA 1487
At a glance
Source factsCourt
Federal Court of Australia
Decision date
1996-10-18
Before
Lockhart J, Mansfield J
Source
Original judgment source is linked above.
Judgment (25 paragraphs)
REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") given on 28 April 1999. The Tribunal affirmed the decision of the respondent, both initially by his delegate and by a Migration Internal Review Officer, that the applicant is not entitled to the visa sought by his application dated 18 November 1995 and apparently lodged on 24 November 1995 ("the application"). 2 The application was for a Class TK Extended Eligibility (Temporary) Subclass 820 spouse visa ("the visa"). If the visa were granted, it would enable the applicant to remain permanently in Australia as a spouse of an Australian citizen. 3 The prescribed criteria for the visa include that, at the time of the application, the applicant be the spouse of a person who is an Australian citizen: reg 820.211(2)(a)(i) of the Migration Regulations ("the Regulations"). "Spouse" is defined in reg 1.15A. The relevant parts of that definition as then in force are:
"(1) For the purposes of these Regulations, a person is the spouse of another person if: (a) the 2 persons are: (i) married to each other under a marriage that is recognised as valid for the purposes of the Act; or (ii) de facto spouses of each other, as set out in subregulation (2); and (b) the Minister is satisfied that: (i) the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between the 2 persons is genuine and continuing; and (c) the Minister is satisfied that the 2 persons are: (i) living together; or (ii) not living separately and apart of a permanent basis. … (3) In forming an opinion for the purposes of paragraph (1)(b) and (c) in relation to an application for a visa of subclass 100, 801, 820 or 831, the Minister must have regard to all the circumstances of the relationship, including, in particular: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including; (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one." 4 The applicant married an Australian citizen Lilieta Kolomaka ("Ms Asif") on 4 November 1995. However, the Tribunal was not satisfied that the applicant had a genuine commitment to a shared life as husband and wife to the exclusion of all others at the time of the application, that is shortly after the marriage: definition reg 1.15A(1)(b)(i). Consequently, the application failed. The Tribunal did not proceed to determine whether such a commitment existed at the time of the decision: reg 820.221 of the Regulations. The ground of review 5 The applicant relies upon s 476 (1)(f) of the Migration Act 1958 (Cth) ("the Act"). He submits that the decision was induced or affected by actual bias on the part of the member of the Tribunal conducting the hearing of the review. It is contended that (1) the Tribunal as constituted engaged in a pattern of conduct indicating that the Tribunal had prejudged the case against the applicant and had acted with such partisanship or hostility so as to show the Tribunal as constituted had made up its mind against the applicant, and (2) the cumulative conduct of the Tribunal by inference demonstrates actual bias as the Tribunal had a closed mind to the issue as to the genuineness of the applicant's commitment to his marriage at the time of the application. 6 As the argument was advanced, no real distinction between those two propositions was developed. The foundation for the allegation of bias was the course of the conduct of the hearing before the Tribunal on 22 April 1999 leading up to the decision of which complaint is now made. The principles 7 There was no real dispute between the applicant and the respondent as to what may constitute actual bias. Each party referred me to the decisions of Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported) ("Singh") and of Davies J in Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 ("Durairajasingham"). I was also referred to Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 ("Sun Zhan Qui"). I have carefully considered those decisions. 8 In Sun Zhan Qui at 127 Burchett J said: