Nassouh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision of the Immigration Review Tribunal ("the Tribunal"), which decision was made on 30 March 1999. 2 The Tribunal's decision confirmed an earlier denial to Mr Hossam Nassouh, a Lebanese citizen and resident, of a Spouse (Provisional) visa of Subclass 309, for which visa he had applied on 15 July 1997. Mr Nassouh's application for the visa had apparently been lodged at the Australian Embassy in Beirut. 3 Mr Nassouh had been sponsored in respect of his application for the visa by Ms Ghazwa Nassouh, a Lebanese-born Australian citizen who is ordinarily resident in Australia, but who was temporarily resident in Lebanon at the date of Mr Nassouh's application. As well as being Mr Nassouh's sponsor, Ms Nassouh was also the applicant before the Tribunal and is also the applicant in the present proceeding. No question arises as to her standing to bring the present proceeding: see par 479(a) of the Migration Act 1958 (Cth) ("the Act"). By leave and without objection from the Minister, Ms Nassouh, who is not fluent in English, was represented at the hearing of the present proceeding by her niece, Ms Ammina Ali, who is not legally trained, but who is fluent in English. 4 In its statement of findings and reasons regarding its decision in respect of Mr Nassouh's visa application, the Tribunal stated that "Mr and Mrs Nassouh [the latter being the applicant in the present proceeding] … signed the Book in a valid Muslim [marriage] ceremony on 12 June 1997" in Tripoli, Lebanon. It then continued, "The Tribunal finds, however, that at the time Mr Nassouh lodged his spouse application in July 1997, there was insufficient evidence that this was a genuine spouse relationship in which Mr and Ms Nassouh were committed to sharing their lives to the exclusion of others…. The Tribunal finds, therefore, that Mr Hossam Nassouh was not the spouse of the Australian citizen who sponsored him at the time his application was lodged in July 1997 and did not meet the requirements of [Sch 2, subc] 309.211(2) [of the Migration Regulations 1994 (Cth)]." The Tribunal's statement just quoted that "there was insufficient evidence that [as of 15 July 1997] this was a genuine spouse relationship in which Mr and Ms Nassouh were committed to sharing their lives to the exclusion of others" should be read in light of the following statement which had been made by the Tribunal earlier in its statement of findings and reasons: "The Tribunal accepts that Ms Nassouh is committed to Mr Nassouh, … but does not believe this commitment is reciprocated". Presumably, the Tribunal's statement just quoted was intended to refer to Mr and Ms Nassouh's respective states of mind as of 15 July 1997, the date of Mr Nassouh's visa application, as well as to their respective states of mind as of 30 March 1999, the date of the Tribunal's decision with respect to that visa application. 5 Subclause 309.211(2) of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), to which the Tribunal referred in one of the passages from its statement of findings and reasons which I have quoted in the preceding paragraph of these reasons, prescribed one of the criteria which Mr Nassouh needed to satisfy at the date of his application for a Spouse (Provisional) visa of Subclass 309, namely, that he be the "spouse" of a person belonging to one of a number of classes of person, including (par (a)) that of Australian citizens. According to reg 1.03 of the Regulations, the general definition provision of the Regulations, in the Regulations, unless the contrary intention appeared, "spouse has the meaning set out in regulation 1.15A". At the dates both of Mr Nassouh's visa application and of the Tribunal's decision, reg 1.15A of the Regulations provided relevantly: "(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: (a) in a married relationship, as described in subregulation (1A)…. (1A) 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. … (3) In forming an opinion whether 2 persons are in a married relationship … in relation to an application for: … (ae) a Spouse (Provisional) (Class UF) visa … … the Minister must have regard to all of the circumstances of the relationship, including, in particular: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or any 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 …; (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) In forming an opinion whether 2 persons are in a married relationship … in relation to an application for a visa of a class other than a class specified in paragraph (3)…(ae), … the Minister may have regard to any of the factors set out in subregulation (3)." 6 One finds near the beginning of the Tribunal's statement of findings and reasons, under the heading "LEGISLATION", a summary of Sch 2, Pt 309 of the Regulations, which Part dealt with Spouse (Provisional) visas of Subclass 309. Following that summary, one then finds the statement, "The term 'spouse' is defined at [reg] 1.15A of the Migration Regulations". However, none of the terms of that Regulation, as they were both at the date of Mr Nassouh's visa application and at the date of the Tribunal's decision and as I have just set them out, were either set out or summarised (as Sch 2, Pt 309 of the Regulations was) in the Tribunal's statement of findings and reasons, whether under the heading "LEGISLATION" or otherwise. Likewise, there was no reference anywhere in the Tribunal's statement of findings and reasons to Sch 1, subitem 1220A(4) of the Regulations, which subitem had the effect at the dates both of Mr Nassouh's visa application and of the Tribunal's decision that a Spouse (Provisional) visa of Subclass 309 was a subclass of Spouse (Provisional) (Class UF) visa, so that subreg 1.15A(3) of the Regulations, rather than subreg 1.15A(4) of the Regulations, applied to the Tribunal's process of forming an opinion whether Mr and Ms Nassouh were in a married relationship at any particular point in time. 7 Although one finds in the Tribunal's statement of findings and reasons no explicit reference to the terms of reg 1.15A of the Regulations, it appears to me that, in adopting the terminology which it did in some at least of those passages from its statement of findings and reasons which I have quoted in par 4 above, the Tribunal was consciously reflecting some at least of the terminology used in subreg 1.15A(1A) of the Regulations. 8 For instance, par 1.15A(1A)(a) of the Regulations required that the two persons concerned be "married to each other under a marriage that is recognised as valid for the purposes of the Act". Section 12 of the Act dealt with deciding whether a marriage was to be recognised as valid for the Act's purposes. That section provided that for the purpose of deciding that question, Pt VA of the Marriage Act 1961 (Cth) applied, although it did so as if s 88E of that Act were omitted. Presumably, when stating that "Mr and Mrs Nassouh … signed the Book in a valid Muslim [marriage] ceremony on 12 June 1997", the Tribunal was intending to dispose, in accordance with the provisions (other than s 88E) of Pt VA of the Marriage Act, of the question whether Mr and Ms Nassouh were "married to each other under a marriage that is recognised as valid for the purposes of the Act". 9 Further, subpars 1.15A(1A)(b)(i) and (ii) of the Regulations spoke respectively of the two persons concerned "hav[ing] a mutual commitment to a shared life as husband and wife to the exclusion of all others" and of their having a "relationship between them [that] is genuine and continuing". Presumably, when stating that "at the time Mr Nassouh lodged his spouse application in July 1997, there was insufficient evidence that this was a genuine spouse relationship in which Mr and Ms Nassouh were committed to sharing their lives to the exclusion of others", the Tribunal was intending to dispose, although in a rolled-up way, of the matters set out in both subparagraphs of par 1.15A(1A)(b) of the Regulations. 10 However, one finds nowhere in the Tribunal's statement of findings and reasons it adopting terminology from which it appears that the Tribunal was consciously reflecting the terminology used in subreg 1.15A(3) of the Regulations, nor does one find anywhere in the Tribunal's statement of findings and reasons anything else betraying a consciousness on the Tribunal's part of the applicability of subreg 1.15A(3) of the Regulations to the review before it. That subregulation, it will be recalled, was expressed in mandatory terms. When it, rather than subreg 1.15A(4) of the Regulations, applied, it set out, among other things, particular circumstances of the relationship to which regard "must" have been had by the Minister (and, indirectly, by the Tribunal). 11 Incidentally, that subreg 1.15A(3) is to be construed as meaning just what it appears to say is confirmed by the decision of a Full Court of this Court (Drummond, North and Madgwick JJ) in Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228 (7 March 2000, unreported): see at [22] and [30], noting that, at [30], the Full Court referred to the Tribunal's having ignored entirely in its statement of findings and reasons in that case subreg 1.15A(3) of the Regulations. 12 By way of example of the effect of subreg 1.15A(3) of the Regulations, par 1.15A(3)(a) of the Regulations (indirectly) required the Tribunal, in forming an opinion as to whether Mr and Ms Nassouh were in a married relationship at any particular point in time, to have regard to "the financial aspects of the relationship" between Mr and Ms Nassouh, while par 1.15A(3)(b) of the Regulations (indirectly) required the Tribunal, in forming that opinion, to have regard to "the nature of the household" of Mr and Ms Nassouh. 13 It was conceded before me by the Minister that there was nothing in the Tribunal's statement of findings and reasons to suggest that, in forming the opinion which it did on the question as to whether Mr and Ms Nassouh were in a married relationship, it had had regard to the financial aspects of their relationship or to the nature of their household. 14 The Minister sought at first to overcome the effect of that concession by submitting, as I understood it, that the present case was one in which subreg 1.15A(4) of the Regulations, rather than subreg 1.15A(3) of the Regulations, applied to the Tribunal's process of forming an opinion as to whether Mr and Ms Nassouh were in a married relationship at any particular point in time. In that event, of course, the Tribunal's having regard to any of the factors set out in subreg 1.15A(3) of the Regulations would have been discretionary, rather than mandatory. 15 That submission, however, was no longer pressed when it was pointed out that, by virtue of Sch 1, subitem 1220A(4) of the Regulations (that subitem, as I have already pointed out in these reasons, not having been adverted to by the Tribunal in its statement of findings and reasons), a Spouse (Provisional) visa of Subclass 309 was a subclass of Spouse (Provisional) (Class UF) visa, the latter class of visa being expressly referred to in par 1.15A(3)(ae) of the Regulations as one application for which triggered the operation of the subregulation. 16 The Minister's fall-back submission, which conceded the prima facie applicability to Mr and Ms Nassouh's situation of subreg 1.15A(3) of the Regulations, was in two parts. 17 First, the Minister submitted that the Tribunal had been under no duty to have regard to either of the factors set out in pars 1.15A(3)(a) and (b) of the Regulations in Mr and Ms Nassouh's particular situation, namely, that they were not living together at the date of the Tribunal's decision. Paragraphs 1.15A(3)(a) and (b) of the Regulations, the Minister submitted, were only applicable if the two persons concerned were living together at the date with respect to which it became necessary to form an opinion as to whether they were in a married relationship, which in Mr and Ms Nassouh's case was said to be the date of the Tribunal's decision. 18 Secondly, although it was conceded that the Tribunal had been under a duty to have regard to both of the factors set out in pars 1.15A(3)(c) and (d) of the Regulations when forming an opinion as to whether Mr and Ms Nassouh were in a married relationship and had not expressly adverted to either of those factors in its statement of findings and reasons, still, the Minister submitted, it was apparent from that statement that the Tribunal had made findings with respect to both of those factors in any event. Reliance in that respect was placed on a statement by Kiefel J in Marshood v Minister for Immigration & Multicultural Affairs [1999] FCA 1415 (15 October 1999, unreported) about language used by the Refugee Review Tribunal in a statement of findings and reasons dealing with the question whether the fear of persecution for a Convention reason held by a particular claimant for refugee status had been a well-founded one. At [16], her Honour said, "Here the Tribunal has used the words 'remote and insubstantial' to describe its view of the applicants' fears, but the deployment of the correct words and the criteria of appropriate passages for the cases [perhaps what was intended was 'the citation of appropriate passages from the cases'] are not conclusive. It is necessary to scrutinise the reasoning to determine whether the correct approach was taken…." 19 The Minister's submissions as to pars 1.15A(3)(a) and (b) of the Regulations to which I have referred in the next preceding paragraph of these reasons proceeded on a misconception. As is apparent from those passages of the Tribunal's statement of findings and reasons which I have quoted in par 4 above, the task which the Tribunal had set for itself in the present matter was to form an opinion as to whether Mr and Ms Nassouh were in a married relationship, not at the date of its own decision (30 March 1999), but rather at the date when Mr Nassouh had made his visa application (15 July 1997). 20 It was not in issue before the Tribunal that, at the date when Mr Nassouh made his visa application, both he and Ms Nassouh were residing in Lebanon (even if temporarily, in Ms Nassouh's case). Further, the Tribunal, in referring to the evidence which was before it, referred to the fact that Mr Nassouh had given evidence before it (through an interpreter) that he had provided financial support to Ms Nassouh in Lebanon; it also referred to the fact that Ms Nassouh had given evidence before it (also through an interpreter) that, following her marriage to Mr Nassouh on 12 June 1997, "then they lived sometimes at his parents' place or her sister's place until she returned to Australia on 6 October 1997". (I add that I am not aware of the terms of the evidence either Mr or Ms Nassouh gave before the Tribunal, since no transcript of their testimony is before me; I can refer only to the Tribunal's summary of that testimony in its statement of findings and reasons.) 21 There was thus evidence before the Tribunal relating to the issues of the financial aspects of the relationship and the nature of the household, evidence which, one would think, might have tended in favour of the formation of an opinion that, as of 15 July 1997, Mr and Ms Nassouh were in a married relationship within the meaning of reg 1.15A of the Regulations. However, when the Tribunal came to set out in its statement of findings and reasons its findings on material questions of fact, it made no reference to that evidence and further made no findings of fact as to the financial aspects of the Nassouh relationship or the nature of the Nassouh household as of the date with which it was concerning itself, 15 July 1997. 22 In those circumstances, the obvious conclusion, which I draw, is that the Tribunal failed to act as it was required to do by subreg 1.15A(3) of the Regulations when forming an opinion as to whether Mr and Ms Nassouh were in a married relationship as of 15 July 1997. I note that it was not submitted by the Minister that any such failure by the Tribunal, if it occurred, was an immaterial error, nor is it apparent to me that it was. 23 Given the conclusions which I have just expressed, it is unnecessary for me to express any view on the Minister's submissions to which I have referred in par 18 above, although I must confess to having some difficulty in accepting the Minister's submission that the findings of fact which the Tribunal actually did make encompassed all of the factors set out in both pars 1.15A(3)(c) and (d) of the Regulations. 24 The Tribunal's decision must, in light of the reasons which I have given above, be set aside and Ms Nassouh's application to it reconsidered. It will be necessary for such reconsideration to be given by the Migration Review Tribunal: see the Migration Legislation