Jayasinghe v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1991-11-29|Before: O'Loughlin J, Middleton J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate McInnis of 27 July 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal ('the Tribunal') of 5 January 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 31 May 2004 to refuse to grant the appellant a spouse visa pursuant to s 65 of the Migration Act 1958 (Cth) ('the Act').

PROCEDURAL background and the appellant's claims 2 The appellant is a citizen of Sri Lanka. He arrived in Australia on 15 July 1998 as the holder of a student visa. On 10 October 2003, the appellant applied for a Partner (Temporary) (class UK) visa, subclass 820 (Spouse) ('temporary spouse visa') and a Partner (Residence) (class BS) visa, subclass 801 (Spouse) ('permanent spouse visa'). The appellant was sponsored by Ms Elvira Thompson ('the sponsor'), an Australian citizen originally from the Philippines who had previously been married twice. The appellant and the sponsor married in Sydney on 6 October 2003, however, at the time of the marriage, she was still married to another man. 3 Before the delegate, the appellant claimed their relationship came to an end when the appellant discovered a letter between the sponsor and another man which indicated that the sponsor was not only involved with this man but also that she intended to sponsor him. In its decision dated 31 May 2004, the delegate refused to grant the appellant a temporary or permanent spouse visa. The delegate was not satisfied that the appellant was the spouse of the sponsor as this relationship is defined in reg 1.15A of the Migration Regulations 1994 (Cth) ('the Regulations').

The Tribunal's decision 4 On 23 June 2004, the appellant applied to the Tribunal for review of the delegate's decision. In correspondence to the Tribunal dated 6 June 2005 a new representative for the appellant submitted that the appellant's relationship with the sponsor had broken down due to domestic violence committed against the appellant by the sponsor. 5 In its reasons for decision, the Tribunal stated, at [22], that: Before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal has considered whether, at the time of application, the sponsor and the visa applicant were in a spousal relationship for the purposes of the Regulations. Given that subclause 820.221(3) requires relevantly that the applicant would have continued to be the spouse of the sponsor except that the relationship between the visa applicant and the sponsor has ceased, it is incumbent on the visa applicant to establish that he was in a spouse relationship with the sponsor. If it did not exist it could not have ceased. {emphasis in original} 6 Therefore, the first question the Tribunal considered was whether or not the appellant was ever the spouse of the sponsor. In doing so, it considered the matters described in reg 1.15A of the Regulations which contains the test for determining whether one person is the 'spouse' of another person. The Tribunal, discussed the issues relevant to determining the nature of the relationship and had regard to the qualifying elements for a married relationship as described in subreg 1.15A(1A) of the Regulations. 7 One of the requirements is that the persons are married to each other under a marriage that is recognised as valid for the purposes of the Marriage Act 1961 (Cth). The Tribunal noted that whilst the sponsor was still validly married to someone else, this was not determinative of the outcome of whether the appellant and the sponsor were in a marriage relationship. 8 The other qualifying elements are that the persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing and, relevantly, that they live together. 9 The Tribunal, in accordance with subreg 1.15A(3), also considered the following circumstances of the relationship in forming its opinion as to whether the persons were in a marriage relationship: (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons' commitment to each other. 10 In relation to the financial aspects of the relationship, the Tribunal accepted that due to the couple's limited income it would be unrealistic to expect that they would have acquired any major joint assets or liabilities. However, the Tribunal noted that whilst the couple opened a joint account in October 2003, the sponsor still operated her own account into which her salary was paid. The Tribunal found there was no satisfactory explanation for this and as a result was not satisfied that the parties shared finances or had joint commitments. 11 In considering the nature of the household, the Tribunal found that whilst the appellant claimed to have moved in with the sponsor in July 2003, there was no evidence this actually occurred before October 2003. The Tribunal was not satisfied the household aspects of the relationship were established at the time the application was submitted. This was due to inconsistencies between the date the appellant started living with the sponsor, the sponsor's advice to departmental officers during a home visit in 27 April 2004 and the appellant's former agent's advice to the Department on 30 April 2004. The Tribunal found the inconsistencies were an embellishment designed to meet the requirements of the 'time of application' criteria and only served to undermine the appellant's credibility. 12 In considering the social aspects of the relationship, the Tribunal noted that there were five friends at the wedding, however the appellant could not remember the names of two of the three friends of the sponsor. The Tribunal was concerned that the friendship groups were separate, the sponsor did not approve of the appellant's friends and there was no evidence to suggest that the relationship was recognised by either set of parents. As a result, the Tribunal formed the view that the parties lacked a shared life together. 13 In considering the nature of their commitment to each other and also whether there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal found that the relationship lacked the companionship and emotional support contemplated by subreg 1.15A(3)(d). The Tribunal noted that subreg 1.15A(3)(d)(iii) contemplates mutual support and 'companionship' which indicates the support must flow from both parties. In relation to whether the appellant had the requisite commitment to the sponsor, the Tribunal noted, amongst other things, that the sponsor was 18 years older than the appellant, from a culturally different background, and the appellant's student visa was due to expire. The Tribunal did not reach a conclusion about whether the appellant was committed to the sponsor because of the difficulties it faced in assessing whether the appellant resided with the sponsor out of a commitment to her as his spouse or in order to qualify for the visa or a combination of both. 14 However, the Tribunal went on to find that, even if it accepted the appellant was genuinely committed to a spousal relationship with the sponsor, it was not satisfied that the sponsor herself was committed to a spousal relationship with him. In making that finding, the Tribunal referred to the evidence of the appellant at the hearing about the reason for the relationship ceasing, in particular the letter he found in February 2005 and the sponsor's reaction. The Tribunal noted that, according to the evidence of the appellant, the letter revealed that the sponsor had embarked on a planned sponsorship with another man. The tone and content of the letter made it clear to the appellant that the sponsor and this other man had been liaising for a long time before February 2005 and they knew each other intimately. The Tribunal noted that when the appellant confronted the sponsor about the letter she did not resile from the sponsorship of the other man and chastised the appellant for reading her mail. The Tribunal considered the sponsor's reaction significant, and on that basis it was not satisfied that the sponsor was genuinely committed to a shared life with the appellant to the exclusion of all others. The Tribunal noted that whilst this incident occurred in February 2005, the letter indicated an established history between the sponsor and the other man. 15 The Tribunal was therefore not satisfied that the parties were in a married relationship, the corollary being that the relationship could not have been one that ceased. 16 Accordingly, the Tribunal concluded that the appellant did not meet the criteria for the grant of a temporary spouse visa and, as a consequence, could not meet the criteria for the grant of permanent spouse visa. As a result, the Tribunal did not need to consider the remaining criteria in the appellant's visa application.

THE Federal magistrate's decision 17 By amended application filed 6 January 2006, the appellant appealed to the Federal Magistrates Court. The appellant's case before McInnis FM was that the Tribunal did not have jurisdiction to make the decision because it involved jurisdictional errors and copied errors of law such that the decision of the Tribunal was not a decision reasonably capable of reference to the power given to the Tribunal by Pt 5, div 2 of the Act. 18 Federal Magistrate McInnis held that the Tribunal did not rely on the fact that the sponsor was married in its finding, even though it had forwarded a s 359A letter, referring to information concerning the issue and inviting the appellant to comment. His Honour made this finding on the basis that the Tribunal did not make any adverse findings about that issue to the detriment of the appellant. 19 As to whether the union was a genuine spousal relationship, McInnis FM accepted that the Tribunal did not have the advantage of the letter the appellant had seen between his sponsor and another man. However, McInnis FM noted that the statutory declaration of the appellant combined with the evidence of the appellant, provided the basis upon which he found that the Tribunal analysed all other criteria in a manner free of error. Federal Magistrate McInnis ultimately ordered that the amended application be dismissed. 20 The appellant has appealed the whole judgment of McInnis FM. The appellant claimed that the Federal Magistrate erred in law for failing to find that the Tribunal did not have jurisdiction to make the decision because it involved jurisdictional errors, for failing to find that the Tribunal identified the wrong issues, and also that the Tribunal failed to conduct the review in accordance with the rules of natural justice. The appellant also claimed that the Tribunal misconstrued and misapplied the Regulations.

the legislative framework 21 Pursuant to s 65 and s 349 of the Act, the Tribunal was required to grant the appellant a temporary spouse visa if it was satisfied that, among other things, the criteria prescribed by the Regulations were satisfied. If the Tribunal was not satisfied that those criteria were met, it was obliged to refuse to grant the visa. 22 An application for a temporary spouse visa is relevantly assessed against the criteria set out in Pt 820 of sch 2 to the Regulations whereas an application for a permanent spouse visa is assessed against the criteria set out in Pt 801 of sch 2. In general terms, an applicant cannot be granted a permanent spouse visa unless he or she has been previously granted a temporary spouse visa. 23 The Tribunal therefore needed to assess whether or not, at the time of the visa application on 10 October 2003, the appellant's circumstances satisfied the criteria set out in subdivision 820.21 of Pt 820 for the grant of a temporary spouse visa. 24 In that subdivision, subcl 820.211(1) required that, at the time of the visa application, the appellant met the requirements of subcll 820.211(2), (3), (4), (5), (6), (7), (8) or (9). Subclauses 820.211(7), (8) and (9) concern visa applicants who hold or have held subclass 300 (prospective marriage) visas and were therefore not applicable to the appellant's circumstances. Each of the remaining subclauses in cl 820.211 required that, at the time of the visa application, the appellant was the spouse of the sponsor. 25 In order to assess whether or not, at the time of the visa application, the appellant was the spouse of the sponsor, it was necessary for the Tribunal to have regard to the definition of 'spouse' contained in reg 1.15A of the Regulations. Under subreg 1.15A(1) a person is the 'spouse' of another person if they are 'in a married relationship'. 26 Subregulation 1.15A(1A) provides that: Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis. 27 Subregulation 1.15A(3) relevantly provided that, in forming its overall opinion about whether the appellant and the sponsor were in a married relationship, the Tribunal must have regard to all of the circumstances of the relationship, including, in particular: (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons' commitment to each other. 28 If the Tribunal was not satisfied that, at the time of the visa application, the appellant was the spouse of the sponsor within the meaning of reg 1.15A, it was obliged to refuse to grant the appellant a temporary spouse visa. 29 Even if the Tribunal was satisfied that the appellant met the 'time of application criteria' (which it was not), it would remain necessary for the Tribunal to consider whether or not the appellant could meet the criteria to be satisfied at the time of its decision. Those criteria are set out in subdiv 820.22of Pt 820. 30 In that subdivision, subcl 820.221(1) required that, at the time of the decision, the appellant continued to meet the criteria applicable at the time of the visa application or, alternatively, met the requirements of subcll 820.221(2) or (3). 31 In the present case, the appellant asserted that he was a victim of domestic violence at the hands of the sponsor. He therefore claimed that he relevantly met the requirements of subcl 820.221(3). That provision, so far as is relevant, states that: The applicant meets the requirements of this subclause if: (a) the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6)except that the relationship between the applicant and the sponsoring spouse has ceased; and (b) either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a member of the 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) … 32 Each of subcll 820.211(2), (3), (4), (5) and (6) required that, at the time of the visa application, the appellant was the spouse of the sponsor.

consideration 33 At the hearing of this matter, and upon an elaboration of the appellant's outline of submissions, the real complaint made by the appellant is that the Tribunal did not properly assess the evidence relevant to the question of whether the appellant and his spouse were in a married relationship, and therefore whether he was the 'spouse' of the sponsor for the purposes of reg 1.15A. 34 The appellant submitted that the Tribunal misconstrued or misapplied reg 1.15A in making its determination of the nature of the relationship on the basis of evidence at the time of application. However, cl 820.211 of Pt 820 of sch 2 to the Regulations clearly requires the question of whether the appellant is the spouse of the sponsor within the meaning of reg 1.15A to be determined at the time of the visa application. It was therefore necessary for the Tribunal to assess whether or not, at the time of the visa application, the evidence supported a conclusion that the circumstances of the appellant's relationship satisfied the requirements of reg 1.15A. 35 This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it 'tends logically to show the existence or non-existence of facts relevant to the issue to be determined': see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. 36 As to the question of evidence of subsequent events, I have considered the case of Bretag v Immigration Review Tribunal (unreported, O'Loughlin J, 29 November 1991) ('Bretag'). In that case, the Tribunal had to answer the question of whether two persons in a relationship had a mutual commitment to the exclusion of others. The Tribunal had to determine the question at a particular point in time but made reference to evidence about subsequent events in assessing whether at the relevant time the relationship was exclusive. In reviewing the decision of the Tribunal, the court found that the Tribunal's undue reliance on the evidence of subsequent events disclosed error. The court did not hold that, in all circumstances, evidence of subsequent events was a relevant consideration which the legislation required the Tribunal to consider. Rather, the court held that in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. As stated by O'Loughlin: It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE - 7 February 1990. But the evidence of the subsequent history is only relevant so long as it tends to logically show the existence or non-existence of facts relevant to the issue to be determined. 37 However O'Loughlin J, in finding error in the Tribunal's reasoning process, explained that the Tribunal must be careful not to attribute too much weight to the evidence of subsequent events: In my opinion the Tribunal erred in law. It correctly identified the test that it had to apply, that is, the "Dhillon test", but having made that correct decision it erred in law by permitting itself to be influenced inappropriately by events that occurred subsequent to the events subsisting at the time of the application…The duty of the Tribunal was to assess the personal circumstances of the applicant and her husband as they existed at the time when the application for the PEPAE was made, that is, as at 7 February 1990. In terms of the "Dhillon test", the dominant question was this: as at 7 February 1990, can it be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others. It was a misconception of the limited evidence on the subject of Mr Bretag's state of mind to draw an inference that his relationship to the applicant was not, on that date, either genuine or continuing. … I have concluded that the Tribunal did not use subsequent events as an aid to determine the existence or non-existence of facts that were relevant to the issue (in the manner permitted by Pochi's case); rather, it permitted itself to be influenced inappropriately by the resumption of the relationship between Mr Bretag and Leanne some two months after this marriage to the applicant. 38 Contrary to the submissions of the appellant, the relevant regulations I am considering clearly focus attention at the time of application. The only relevance of Bretag is the extent to which evidence may impact upon that assessment, and particularly evidence of subsequent events. In my view, the Tribunal here undertook its task in looking at all the material before it, both at the time of application and thereafter. No error of the type identified in Bretag has occurred here. 39 The appellant also claimed that the Tribunal made findings of fact unsupported by the evidence. In particular, the appellant claims that the Tribunal did not give proper consideration to the evidence before it and did not make correct findings of fact based on the evidence. However, the Tribunal is not obliged to deal with in its reasons every piece of evidence submitted by the appellant. In WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, the Full Federal Court discussed a number of decisions of the Refugee Review Tribunal and stated at [46]-[47] that: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.… Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 40 The claim arises specifically in the context of the Tribunal's consideration of the circumstances prescribed by subreg 1.15A(3). However, an analysis of the Tribunal's findings shows that the Tribunal did consider all the material evidence before it and reveals no error law.

The financial aspects of the relationship 41 The appellant sought to impugn the Tribunal's consideration of the evidence about the financial aspects of his relationship with the sponsor. The appellant claimed that the Tribunal solely considered the evidence of the joint bank account and did not take into account the evidence of the joint utilities bills which post-date the time of the visa application. The appellant further claims that, given the appellant and the sponsor were married only 4 days before the date of the visa application, it was not realistic to expect joint financial commitment immediately, or at the time of the application. 42 As stated above, the circumstances prescribed in subreg 1.15A require an examination by the Tribunal of the circumstances of the relationship at the time of application. Whilst evidence post-dating the application may be relevant in tending to prove the existence or non-existence of facts relevant to the issue, the weight to be given to the evidence is a matter for the Tribunal. 43 In any event, in assessing the financial aspects of the relationship, the Tribunal did consider evidence post-dating the application. The Tribunal referred to evidence of a joint bank account opened in October 2003. It referred to the limited use of the bank account since that time. It also referred to the sponsor's maintenance and use of her own bank accounts since the time of the visa application. 44 Further, the Tribunal was entitled to consider the evidence before it in the context of the appellant's claims. The appellant claimed that he and the sponsor commenced living together in July 2003. It is apparent that the Tribunal reasoned that, if this were so, there would be some evidence of shared financial obligations prior to or at the time of the visa application on 10 October 2003. This reasoning was open to the Tribunal in the circumstances. Accordingly I find no error of law in the finding of the Tribunal that the financial aspects of the relationship were not established at the time of the visa application.

The nature of the household 45 The same situation arises in respect of the Tribunal's consideration of evidence concerning the nature of the household. The appellant challenges the Tribunal's assessment on the basis that it focused on the evidence of the nature of the household at the time of application. It is clear from its findings that the Tribunal did focus on the nature of the household at the time of application. However, in forming its opinion about the household at the time of application, the Tribunal also had regard to evidence about cohabitation after the date of application. Nevertheless, the Tribunal concluded that the household aspects of the relationship were not made out at the time of application, primarily due to inconsistencies in the evidence. This is clearly a finding of fact, which was open to the Tribunal in the circumstances, and accordingly I find no jurisdictional error in relation to this aspect of its findings.

The social aspects of the relationship 46 Similarly, the appellant complained about the Tribunal's assessment of the evidence relating to the social aspects of the relationship. The appellant claimed that the Tribunal erred in finding that the absence of the social aspect of the relationship of itself does not indicate an absence of genuine relationship, but when combined with other findings, reinforces the view of the Tribunal. 47 In accordance with subreg 1.15A(3) the Tribunal considered evidence about the social aspects of the relationship between the appellant and the sponsor. It did not consider that the evidence about a separate social life of the sponsor was determinative of the genuineness of the relationship. However, it found that this evidence, when considered in the context of other evidence about the relationship between the appellant and the sponsor, reinforced its opinion that the parties lacked a commitment to a share life together. This other evidence included, for example, the appellant's inability to remember the names of several of the five guests at his wedding and the absence of any evidence of family recognition of the marriage. This reasoning was open to the Tribunal in the circumstances and supported by the evidence. 48 I accept the first respondent's submissions that the Tribunal considered the social aspects of the relationship in the context of the appellant's claims and the history of his relationship with the sponsor. It is apparent that the Tribunal expected that if, as the appellant claimed, he and the sponsor had been involved in a relationship since March 2003 and had lived together since July 2003, there would be stronger evidence of a joint social life at the time of the visa application on 10 October 2003. In the performance of its fact-finding function, the Tribunal's approach was open to it. 49 To the extent that the appellant also claims that the Tribunal erred in confining its consideration of the evidence to the time of application, it is clear that the Tribunal, in referring to the sponsor's disapproval of the appellant's friends, her separate social life, and failure of both sets of parents to recognise the relationship, clearly took into account evidence of the social aspects of the relationship at and afterthe time of the visa application.

The nature of the persons' commitment to each other 50 Finally, the appellant claimed that the Tribunal erred in its consideration of the evidence of the nature of the parties' commitment to each other. The appellant claimed that the Tribunal overlooked the application of reg 1.15A(5) which provides that 'if 2 persons have been living together at the same address for 6 months or longer, that fact is taken to be strong evidence that the relationship is genuine and continuing'. However, as mentioned above, the Tribunal was obliged to assess whether or not the appellant was the spouse of the sponsor at the time of application. Therefore, whilst the Tribunal did not accept that the appellant and the sponsor had lived together from July 2003 onwards, even if it had accepted this claim, subreg 1.15A(5) would have had no bearing on the Tribunal's assessment of the relationship at the time of the application because, at this time, the appellant and the sponsor had not lived together for 6 months or longer. As such, the Tribunal was not required to have regard to this provision because it was not relevant to the question of whether or not the appellant was the spouse of the sponsor within the meaning of reg 1.15A. 51 In my view, the Tribunal's findings in relation to the parties' commitment to each other were reasonably open on the material before the Tribunal. It was open to the Tribunal to make its own findings about the sponsor's level of commitment to the relationship with appellant. The appellant's claims in substance appear to be no more than an attempt to review the merits of the case. The weight to be given to particular evidence is a matter for the Tribunal and there is no basis for me to conclude that it performed its obligations otherwise than in accordance with law.

conclusion 52 Once the Tribunal, in my view correctly, concluded that the appellant had not satisfied an essential criterion for the grant of the visa, it considered it unnecessary to make a finding in respect of the appellant's claims of domestic violence. On the basis of the above, the appeal should be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Solicitor for the Appellant: Goz Chambers Lawyers

Solicitor for the Respondent: Australian Government Solicitor

Migration Regulations 1994(Cth)reg 1.15A, cll

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