Nouv v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-11-10|Before: Heerey J

REASONS FOR JUDGMENT 1 The appellant, a Cambodian national, married an Australian citizen in Cambodia. She was then granted a provisional spouse visa (subclass 309, Partner (Provisional) (Class UF)). She applied for a permanent visa (subclass 100 Partner (Migrant) (Class BC)), which normally cannot be granted until two years have elapsed. However, in the meantime her husband, the "sponsoring spouse", returned to Cambodia on a business trip and died there. In this circumstance, under reg 100.221(3)(c) of the Migration Regulations 1994 (Cth), the decision-maker had to be satisfied that the appellant "…would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died." 2 A delegate of the Minister refused to grant the permanent visa. That refusal was affirmed on review by the Migration Review Tribunal. An application for judicial review was refused by Connolly FM: Chinda Nouv v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1101. The appellant now appeals to this Court. 3 The factual background, the relevant legislation and the terms of the Tribunal's decision are set out in the decision of the learned Magistrate and it is not necessary to repeat them. 4 The appellant's counsel contended that the learned Magistrate erred in that he should have set aside the Tribunal's decision on the grounds that:

The Tribunal failed to take into account a mandatory relevant consideration, namely the appellant's travelling to Cambodia to participate in her husband's funeral;
The Tribunal misconstrued the visa criteria in that it: (a) failed to fix a point in time at which the visa criteria were to be considered; and (b) failed to take proper account of the effect of the grant of the provisional visa.

Misconstruction of visa criteria 12 The appellant's argument involved two interrelated points. One of the requirements for the permanent visa is that the applicant is the holder of a provisional visa. Therefore, it was said, although the Tribunal had to consider other criteria as at the time of its decision, it should not have "re-agitated" the issue whether at the time of the grant of the provisional visa the criteria for the grant of that visa were or were not satisfied. In effect, the Tribunal should have proceeded on the basis that when the provisional visa was granted the appellant was a "spouse" of the sponsoring spouse, that is to say they were in a "married relationship" as defined in reg 1.15A. The Tribunal failed to identify the point in time at which the married relationship had to exist. 13 It seemed implicit in counsel's argument that the grant of the provisional visa created some kind of presumption and that the Tribunal could only refuse the permanent visa if it was satisfied that what was a genuine married relationship had ceased by the time of the death of the sponsoring spouse. 14 As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28], the Tribunal may have, and often will have, different and additional evidence bearing on the parties' relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitors for the Appellant: Clothier Anderson & Associates

Solicitor for the Respondent: Australian Government Solicitor

Migration Regulations 1994(Cth)reg 1.15A(3)(c)(i)

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