Minister for Immigration, Local Government and Ethnic Affairs v Dhillon

Mr Kumar is a citizen of Fiji who arrived in Australia on 15 February 1989. The class of visa he held was visitor with the expiry date of the last entry permit granted being 15 June 1989. After this date, no further entry permit was granted and he consequently became a prohibited non-citizen.

The basis of the original application and the application for review was that the Applicant had a genuine and continuing relationship as the de facto husband of an Australian citizen.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law has undergone significant changes. In accordance with regulation 23 of the Migration Reform (Transitional Provisions) Regulations, the Principal's application in this case is taken to be an application for a transitional (permanent) visa under the new law. For most purposes this will have the same effect as the entry permit that would have been granted under the law in force before 1 September 1994. The application is still to be decided according to the criteria that applied to the entry permit for which application was originally made. The Regulations which are applicable in this case are therefore the 1989 Migration Regulations (the Regulations).

In order to be issued with a visa or an entry permit, an applicant must comply with the criteria set out in the Act and the Regulations regarding that type of visa or entry permit.

The criteria for the grant of a December 1989 (temporary) entry permit are to be found in Item 59A, Class 2, Schedule 3 of the Migration Regulations. Specific criteria are set out in regulation 131A, which requires that the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989; has not left Australia after 18 December 1989 and applies before 19 December 1993 for the entry permit. So far as is relevant to this application, regulation 131A requires that on 15 October 1990 and continuously until the date of decision, the applicant has a genuine and continuing relationship with an Australian citizen or permanent resident. Other criteria deal with health and public interest, assurances of support and notification of any change of address.

The definition of spouse is found in regulation 2 of the Migration Regulations. It requires that the applicant for a visa or entry permit must have entered into a valid marriage that has not ended or resulted in separation, or be a de facto spouse. The definition of de facto spouse in regulation 3A requires that at the time of the application the couple have lived together during the preceding 6 months on 'a genuinely domestic basis as spouses'.

The Tribunal has taken note of the policy directions issued by the Minister under section 179 of the Migration Act as in force prior to 1 September 1994 in respect of regulation 131A.

Regulation 142C states that a person is not entitled to be considered for a December 1989 (permanent) entry permit unless at the time of the decision he/she is the holder of a December 1989 (temporary) entry permit.

In assessing the question of what is a genuine and continuing spouse relationship the Tribunal is guided by the Federal Court case of the Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Full Court of the Federal Court, 8 May 1990, unreported), where the Full Court in determining whether a marriage was genuine stated:

The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others_._

The Family Court of Australia has considered what constitutes a genuine relationship between two spouses: see, for example, In the Marriage of Todd (No 2) (1976) 9 ALR 401 at 403, (approved by the Full Court of the Family Court of Australia in In the Marriage of Pavey (1976) 10 ALR 259 at 263) where it was said:

What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

In undertaking its review the Tribunal has had regard to the material on the Department's file and has considered the oral evidence from the following:

Mr Toufic Laba Sarkis, a registered Migration agent, and adviser to the Applicant, was present during the hearings.

The Applicant's marriage to his former wife, Ranjani Devi, ended in divorce in April

1989, with his former wife being granted custody of their two children. The Applicant had been informed by his former wife that she loved another man when he returned from a holiday in Australia in 1988. The marriage ceremony had taken place in Fiji in 1981 and the divorce proceedings were also taken in Fiji.

The Applicant's former wife left Fiji at the end of 1988, taking the Applicant's two children with her. The Applicant came to Australia early in 1989 to ascertain whether his former wife would agree to his children returning to Fiji with the Applicant. The Applicant's former wife refused to relinquish custody but agreed to permit the Applicant reasonable access.

The Applicant met Mrs Tapae Kaiwai Watene (Mrs Kumar) in May 1989 at a restaurant in which she was working in Martin Place called Saras. A relationship developed between them and they commenced to live together in a house owned by Mrs Watene's brother, in about June or July 1989. They have lived together ever since. Initially Mrs Kumar financially supported Mr Kumar but lately Mr Kumar has been the sole breadwinner. They have shared friends, responsibility for domestic chores, bank accounts and their respective children.

The Applicant had gone to the restaurant to see his friend, Bass, whom he had known in Fiji and his former brother-in-law, Mr Brian Kumar who were both working in that restaurant. Mr Brian Kumar is married to Ragni Kumar who is the sister of the Applicant's former wife. The relationship between the Applicant and his former brother and sister-in-law had been friendly while they were in Fiji but they were not particularly close. Brian Kumar and Ragni Kumar had come to Australia from Fiji in January 1988 and they had met Mrs Kumar as a result of Mrs Kumar and Brian Kumar working together at Saras restaurant. Mrs Kumar had been a friend of Brian and Ragni prior to the Applicant meeting Mrs Kumar.

In 1989 Ragni and Brian Kumar had a prayer ceremony in their home at flat 8/51 The Avenue, Hurstville and they invited Ragni's sister, that is the Applicant's former wife, to that function. Mr Ivan Galick, who resided at flat 10 in the same block of flats, was one of 20-30 people invited to that function. Some six months later Mr Galick and Ramjani Devi were married and they lived together in Mr Galick's flat.

In December 1989, Mrs Kumar and the Applicant commenced to live in and to share flat 8/51 The Avenue, Hurstville with Brian Kumar and Ragni Kumar.

Both the Applicant and Mrs Ragni Kumar testified that the presence of both the Applicant and his former wife in the same block of flats was just a coincidence and was not an indication of any special relationship existing between the Applicant and his former wife. The Applicant did acknowledge that the proximity to his two children who were living with his former wife was an extra bonus.

The Applicant, Mrs Kumar, Brian Kumar and Ragni Kumar shared the flat at 51 The Avenue, Hurstville, for some two and half years after which they all moved to 3 Queens Road, Hurstville. They are still sharing this house in Hurstville.

The testimony of all of the witnesses was generally consistent and all testified as to the close and loving relationship between the Applicant and Mrs Kumar.

The witnesses, and particularly Mrs Kumar and Mrs Ragni Kumar, impressed the Tribunal as honest witnesses.

The Tribunal questioned the Applicant and Mrs Ragni Kumar closely in order to give them the opportunity to rebut the suspicions arising from the fact that the Applicant and his former wife lived for a time in the same block of flats at 51 The Avenue, Hurstville. The Tribunal is satisfied that this arose by co-incidence and by virtue of the relationship between Mrs Ragni Kumar and the Applicant and Mrs Ragni Kumar and her sister, the Applicant's former wife.

The Tribunal is satisfied from the totality of the evidence that Mr and Mrs Kumar have been in a de facto relationship continuously since the middle of 1989 and that their relationship involves a mutual commitment to a shared life as husband and wife to the exclusion of others.

Mr Kumar left Australia for a short period after the lodgement of the application, the subject of this review. This raises the question as to whether the criterion that the Applicant for the entry permit has not left Australia after 18 December 1989 is met in the present case. This Tribunal has in a previous matter determined that the criterion is met provided the Applicant has not left Australia between 18 December 1989 and the date of the lodgement of the application the subject of the review (see Re Komsavong, IRT Decision 3672, 5 May 1994). We agree with that interpretation and accordingly we find that the Applicant has satisfied the criterion in regulation 131A (1)(b).

In conclusion, the Tribunal is satisfied that Mr Ramesh Kumar meets the remaining criteria for the grant of a December 1989 (temporary) entry permit set out in the Regulations except for the prescribed public interest and health criteria. An assurance of support is not required.

The Tribunal remits this application to the Department of Immigration and Ethnic Affairs for reconsideration with the direction that Mr Ramesh Kumar has satisfied all prescribed criteria for the grant of a December 1989 (temporary) entry permit with the exception of the prescribed public interest and health criteria.