Migration Act 1958 (Cth) s 476(1)(g), (2) and (4)

Migration Reform Act 1992 (Cth)

Migration Regulations 1989 (Cth) reg 2(1), 34A, 44 and Schedule 2

Migration Reform (Transitional Provisions) Regulations reg 22

Palwinder Singh v Minister for Immigration and Ethnic Affairs and

Immigration Review Tribunal (unreported, Federal Court, von Doussa J, 31 January 1996)

Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Full Federal Court, 8 May 1990

Minister for Aboriginal Affairs v Peko Wallsend Ltd and Ors (1985) 162 CLR 24

Broussard v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Gummow J, 13 December 1989)

Solicitors for the Respondent: Australian Government Solicitor

2. The applicant is to pay the costs of the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BRANSON J By application dated 16 February 1995 the applicant has sought judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") whereby the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") not to grant to Surinder Kaur ("Mrs Kaur") a permanent entry visa (Class 100) (now known as Class 100 (spouse) migrant visa).

2. The applicant and Mrs Kaur were married on 28 August 1990 in Malaysia. By an application dated 20 October 1990, apparently lodged with the Australian High Commission in New Delhi, India on 5 November 1990, Mrs Kaur applied for immigration to Australia. A delegate of the Minister refused Mrs Kaur's application on 22 February 1991. This decision was affirmed by the Immigration Review Tribunal but following the commencement of proceedings in this Court the matter was remitted by consent to the Immigration Review Tribunal. The decision of the delegate was reviewed afresh by the Immigration Review Tribunal constituted by a different member. The decision not to grant to Mrs Kaur a Class 100 (spouse) migrant visa was again affirmed.

3. The Migration Act 1958 (Cth) ("the Act") was substantially amended by the Migration Reform Act 1992 (Cth) which, for present purposes, came into operation on 1 September 1994. The Migration Reform (Transitional Provisions) Regulations contain provisions as to applications unresolved on 1 September 1994. Regulation 22 of those regulations, so far as is here relevant, provides as follows:-

"(1) Subject to this Part, Division 2 of Part 2 of the old Act,

and Regulations made for the purposes of that Division, continue

to apply to a primary application for a visa made on or after

19 December 1989 and before 1 September 1994.

(2) If, on or after 1 September 1994, the Minister or a review

authority decides that a non-citizen is entitled to be granted a

visa under the provisions referred to in subregulation (1), the

visa to be granted is:

(a) (not here relevant); or

(b) if the application is for a permanent visa - a transitional

(permanent) visa."

4. Regulation 22 of the Migration Reform (Transitional Provisions) Regulations appears in Part 5 of those regulations. Nothing in that Part detracts from the requirement of regulation 22(1) that Mrs Kaur's application should be determined in accordance with the Migration Regulations 1989.

5. Regulation 34A of the Migration Regulations 1989 requires, in the circumstances of this case, that Mrs Kaur, as an applicant for a visa, must satisfy the prescribed criteria in relation to the relevant class of visa (other than public interest criteria and prescribed health criteria) at the time of the application and as applicable at that time. The prescribed criteria in respect of the class of visa for which Mrs Kaur applied are set out in item 1 of Schedule 2 of the Migration Regulations 1989. They include "the criteria specified in regulation 44". Regulation 44 of the Migration Regulations 1989 is in the following terms:-

"The additional criterion in relation to a spouse visa is the

following criterion, namely, the relationship is a genuine,

continuing relationship between the 2 spouses."

6. Regulation 2(1) of the Migration Regulations 1989 contains the following definition of "spouse":-

'"spouse" means:

(a) a person who has entered into a marriage recognised as valid

for the purposes of the Act, where:

(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; or

(b) a defacto spouse.'

7. It is the ability of Mrs Kaur to satisfy the criterion prescribed by regulation 44 which was at issue before the delegate of the Minister and before the Immigration Review Tribunal.

8. It was accepted by both parties before me that the jurisdiction of this Court to review the decision of the Immigration Review Tribunal dated 27 January 1995 arises under ss475-486 of the Migration Act 1958 - i.e. as amended by the Migration Reform Act 1992 (see Palwinder Singh v Minister for Immigration and Ethnic Affairs and Immigration Review Tribunal, unreported, Federal Court, von Doussa J, 31 January 1996).

9. It does not appear that the drafter of the application in this case gave consideration to the terms of s476 of the Act. Moreover, the application is deficient in particularity. Further and better particulars of the grounds were later filed. It is not easy to read these particulars with the application itself. The best indication as to the case of the applicant is to be found in the written submissions filed on his behalf. I shall disregard grounds raised in the application and the further and better particulars which are not referred to in the written submissions and were not touched upon by counsel for the applicant in his oral address to the Court.

10. The Tribunal found that the marriage between the applicant and Mrs Kaur was valid according to the law of Malaysia and thus valid for the purposes of the Act (see the definition of "spouse" contained in regulation 2(1) of the Migration Regulations 1989). However, on the issue of whether the relationship between the applicant and Mrs Kaur is a genuine and continuing one the Tribunal stated as follows:-

"In this instance, having considered the evidence of the various

witnesses as well as the evidence contained in the file, the

Tribunal is unable to reach the finding that on the balance of

probabilities, the relationship between the Applicant and the

Principal is a 'genuine and continuing' one as required under

regulation 44 of the 1989 Regulations. The Tribunal did not find

the Applicant to be a reliable witness. By his own admission,

he was untruthful in his evidence to the Tribunal during the first

instance. Instead of taking the opportunity to set the record

straight during the last hearing, he ignored the Tribunal's

counselling and again flouted his affirmation to tell the truth.

The Tribunal also did not find either Prithviraj Singh or his

mother to be reliable witnesses. Their respective evidence was

of variance with that of the Applicant and subsequent attempts to

modify the evidence given orally earlier did not in my view make

the picture any clearer. The Tribunal remains in a state of

uncertainty as to the standing of the relationship and finds the

evidence to be clearly deficient in disclosing a mutual

commitment on the part of the parties to a shared life to the

exclusion of others. I have also considered the evidence of

Bikkar Singh as well as the statements of Gurdip (David) Singh,

Sukhwinder Singh and George Mihalopoulos. They all generally

state that the Applicant had told them of his intention to

marry a woman in Malaysia under an arrangement by a family

friend. The Applicant then left for Malaysia and returned a

married man. With his submission lodged after the hearing, the

Applicant also sent copies of some bank documents indicating

that he had sent about A$2000 on two separate occasions - March

1993 and October 1994 - to the Principal. There were also copies

of telephone bills indicating metered calls, one international

operator connected call to India and four to Pakistan made during

the second half of August 1991 and two such calls to India of

three and four minutes duration made in February 1993. Given

the inconsistencies in the evidence referred to above, the

Tribunal attaches little weight to the various statements and

does not find them or the remittances and telephone calls to be

determinative of the issue before the Tribunal.

Given that all the criteria prescribed for the grant of the visa

sought must be satisfied and the Principal having failed to meet

one of them, she is not entitled to a spouse visa."

11. As to the above finding, counsel for the applicant contended that it was not based on logically probative material but was "partly based on mere suspicion and speculation inherent in the unsubstantiated and highly prejudicial material contained in the file ...". It seems to me that the above contention was intended to invoke the ground of review contained in s476(1)(g) of the Act, namely "that there was no evidence or other material to justify the making of the decision". Nothing was put to me which suggested that the applicant sought to rely on any other ground of review available under s476(1) of the Act.

12. It is appropriate to refer to s476(2) and (4). They provide as follows:-

"(2) The following are not grounds upon which an application may

be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in

connection with the making of the decision;

(b) that the decision involved an exercise of power that is so

unreasonable that no reasonable person could have so exercised the

power.

. . . . . .

(4) The ground specified in paragraph (1)(g) is not to be taken to

have been made out unless:

(a) the person who made the decision was required by law to reach

that decision only if a particular matter was established, and

there was no evidence or other material (including facts of which

the person was entitled to take notice) from which the person

could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the

existence of a particular fact, and that fact did not exist."

13. A marriage relationship is a genuine, continuing relationship within the meaning of regulation 44 of the Migration Regulations 1989 if "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" (see Minister for Immigration, Local Government and Ethnic Affairs v Dhillon, unreported, Full Federal Court, 8 May 1990 at pages 10-11). This test involves consideration of issues known only to the parties to the relationship. The test will not be satisfied if either of them, at the time at which the matter has to be decided, lacks the necessary commitment. Because the test involves consideration of the subjective intentions of the parties to the relationship, issues of credibility assume particular significance. Such issues are crucial to a determination of whether or not what each party asserts about his or her commitment to the relationship can be accepted.

14. Of course, there may be objective facts consistent with a finding of such mutual commitment, or alternatively, tending to suggest against any such mutual commitment. Proof of such facts is likely to be of assistance to the Tribunal in reaching a determination as to whether or not the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. The entering into of a legally valid marriage is a factor consistent with such a mutual commitment and will ordinarily be given significant weight. However, as the Act makes clear, it is not conclusive of the issue of whether the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. The weight to be given in any particular case to the fact of a legal marriage, as with other evidence, is a matter to be determined by the Tribunal having regard to the totality of the evidence before it.

15. In this case it is accepted that the applicant gave evidence to the Tribunal both at the first hearing and on the fresh review of the decision of the delegate which was untruthful. At the commencement of the hearing which led to the decision now under review, the Tribunal advised the applicant of the importance of his telling the truth. On the day following this hearing the applicant wrote to the Tribunal stating that:-

"On the advice of a friend I told a few things wrong what I should

told you true. Then when I came out my friends said that you

should have told true that Immigration will - must listen to you."

16. The applicant then sought in the letter to put forward a version of the circumstances surrounding his marriage which was significantly at odds with the version he had given orally to the Tribunal.

17. Evidence was also given by other witnesses before the Tribunal which was inconsistent with the evidence given by the applicant. For example, the applicant spoke of an exchange of photographs of himself and Mrs Kaur via Mr Prithviraj Singh. Mr Prithviraj Singh in his evidence denied being involved in any such exchange of photographs. Moreover, his evidence that the applicant first met Mrs Kaur at his home is inconsistent both with the applicant's evidence before the Tribunal and with the contents of his later letter to the Tribunal.

18. The state of the evidence before the Tribunal was such that no coherent picture emerged as to the circumstances in which the applicant made his decision to marry Mrs Kaur, the manner of their meeting or as to the time spent by them together before their marriage. The applicant admitted by his letter that certain of his evidence before the Tribunal had been untruthful.

19. The case of the applicant with respect to the above matters is set out as follows in the written submissions filed on behalf of the applicant:-

"It is submitted first that the inconsistency in his (i.e. the

applicant's) evidence and the evidence of his witnesses did not

relate to the material issue before the Tribunal namely the nature

of the marital relationship since marriage but related to the

issue as to how the Applicant and the Principal came to meet each

other before the marriage and secondly, that the motive for such

inconsistent statement has not been the fear of the truth about

their relationship but his desire to bolster validity of

marriage."

20. It is true that the inconsistencies in the evidence before the Tribunal did not directly relate to the nature of the relationship between the applicant and Mrs Kaur. The suggested motive for such inconsistent statement is essentially a matter of speculation. However, whatever the explanation for the discrepancies, the Tribunal was entitled to find that they seriously undermined the credibility of the applicant. For the reasons set out above, his credibility was necessarily central to the issue of whether he had a mutual commitment to a shared life as husband and wife with Mrs Kaur to the exclusion of others.

21. Some objective evidence was placed before the Tribunal which was consistent with such a commitment in the applicant. I refer to the evidence, which was limited in extent, as to the sending of money by the applicant to Mrs Kaur and the making of telephone calls by him to India and Pakistan. It is plain from its reasons that the Tribunal had regard to this evidence but did not find it "determinative of the issue before the Tribunal". The weight to be given to such evidence was a matter for the Tribunal (Minister for Aboriginal Affairs v Peko Wallsend Ltd and Ors [1986] HCA 40; (1985) 162 CLR 24 at 41).

22. Mr Patel, counsel for the applicant placed weight upon the following passage from the decision of Gummow J in Broussard v Minister for Immigration, Local Government and Ethnic Affairs at p14 (unreported, Federal Court, Gummow J, 13 December 1989):-

"No doubt it would be open to the decision maker in a particular

case to find the material put forward by the applicant to be of

insufficient weight in the absence of substantiation from other

sources. But it would, in my view, be a misconstruction of the

legislation for the delegate to take the view that as regards the

matters dealt with in the particular paragraphs in the s13

statement in question here, as a matter of law she could not act

solely on material put forward by the applicant. To act on that

footing, in my view, would be to fall into an error of law."

23. It does not seem to me that the Tribunal fell into the error identified by Gummow J in the above passage. Rather I read the reasons for decision of the Tribunal as indicating that the Tribunal found, as his Honour indicated it legitimately could, that the material put forward by the applicant was, in view of the problems of his credibility, of insufficient weight in the absence of substantiation from other sources.

24. In my view it is not the case that there was "no evidence or other material" to justify the Tribunal in taking the approach which it did. At issue was the nature of the applicant's commitment to his marital relationship with Mrs Kaur - i.e. his state of mind with respect to that relationship. On such an issue the credibility of the applicant was of pre-eminent importance. The concerns which the Tribunal expressed as to the integrity of the evidence placed before it, and particularly as to the credibility of the applicant, were, in my view, justified by the evidence and other material before it.

25. In view of my above conclusion, it is not necessary for detailed consideration to be given to the proper interpretation of s476(4)(a) of the Act which is set out above. Plainly an object of s476(4)(a) is to ensure that s476(1)(g) does not provide a grant of review based upon an examination of the sufficiency of evidence (Akers v Minister for Immigration and Ethnic Affairs [1988] FCA 459; (1988) 20 FCR 363 at 374: Myeong 11 Kim v Ron Wilton and Anor (unreported, Federal Court, Sackville J, 31 August 1995). No submissions were made to me as to whether the Tribunal "was required by law to reach (the decision reached by it) only if a particular matter was established". A determination of the significance of these words in s476(4)(a) should await a case in which this question is fully argued.

26. It is also, in my view, unnecessary in view of the terms of s476 of the Act to consider whether the Tribunal gave weight to the unsubstantiated and highly prejudicial material contained on the Departmental file. It is probably fair to record, however, that the reasoning process disclosed by the reasons for decision of the Tribunal, suggests that although the Tribunal read and considered the relevant Department file, and thus the material of which complaint is made, the process of reasoning adopted by the Tribunal was dependent upon the view which it took of the credibility of the witnesses who gave evidence before it. There was ample material before the Tribunal, quite independent of the material on the Departmental file of which complaint is made, to support the Tribunal's findings as to credibility.

27. The application should be dismissed with costs.