A spousal relationship - cl 801.221(2)(c)
17 In Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5, (2016) 236 FCR 303 at 305 ("Angkawijaya"), Kenny and Griffiths JJ commenced their analysis of what constitutes a "genuine spousal or de facto relationship" by reference to lyrics made famous by Frank Sinatra: "Love and marriage, love and marriage / Go together like a horse and carriage". Another assessment is that of Abraham Lincoln. When asked where he was going by his landlord's son as he was dressing for his marriage to Mary Todd in 1842, he is said to have replied, "To hell, I suppose": Donald DH, Lincoln (Simon & Schuster, 1995) p 93.
18 For present purposes, however, the task of the Tribunal was the far more mundane task of applying the statutory language relevantly found in the Migration Act and Migration Regulations.
19 Section 65(1)(a)(ii) of the Migration Act required the Minister to be satisfied (inter alia) that a visa applicant satisfied the "criteria … prescribed by this Act or the regulations".
20 The criteria in need of satisfaction in the present case were the criteria set out in cl 801.221 of Sch 2 to the Migration Regulations. Clause 801.221(2)(c) imposed a requirement that "the applicant is the spouse or de facto partner of the sponsoring partner".
21 A principal Ground of Appeal agitated in the present proceeding is whether the Tribunal applied the "wrong test" when concluding that Mr Singh did not meet the requirement imposed by cl 801.221(2)(c) and that the Federal Circuit Court Judge erred in not so concluding. Clause 801.221(2)(c), it was submitted, required an assessment to be made as at the date of decision as to whether an applicant is the "spouse" of the "sponsoring partner".
22 On the facts of the present case, the Tribunal was satisfied that Mr Singh and the sponsor of his application "were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a)" (at para [7]). But it was not satisfied that Mr Singh and his sponsor had "a mutual commitment to [a] shared life to the exclusion of other" and was not satisfied that "their relationship is genuine and continuing" (at para [47]). These findings mirror the language of s 5F(2)(b) and (c) of the Migration Act.
23 The error said to have been committed by the Tribunal in reaching its state of dissatisfaction as to the relationship had two limbs, namely that the Tribunal:
made an assessment of the motivation on the part of Mr Singh in initially entering into the relationship and that that assessment thereafter "poisoned" its conclusions as to whether the relationship was "genuine and continuing" as at the time of decision; and
failed to assess the genuineness of the relationship as at the time of its decision.
The findings made by the Tribunal as to events surrounding the commencement of the relationship between Mr Singh and his sponsoring partner, it was submitted, were such that the Tribunal applied the "wrong test" by not focusing its consideration on the nature of the relationship as at the date of its decision.
24 The Tribunal was clearly sceptical of the reasons why Mr Singh initially entered into the marital relationship, hence its finding (for example) that the date of marriage on 13 March 2012 and the date of expiration of his existing visa on 15 March 2012 was not "pure coincidence" (at para [8]). The Tribunal was of the view that Mr Singh was "using the present relationship solely as a means of obtaining the Australian residence" (at para [46]).
25 Each of the limbs to the present argument should be separately considered.
26 As to the first limb, no error is exposed in the Tribunal taking into account the motivation of Mr Singh in entering into the relationship as part of its reasoning process in not being satisfied that Mr Singh "views the relationship as a long term one or that he has any commitment to this relationship" (at para [46]).
27 In Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Northrop, Wilcox and French JJ, 8 May 1990) ("Dhillon") their Honours observed:
The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street C.J. in R. v. Cahill [1978] 2 N.S.W.L.R. 453 at p.458. As his Honour there pointed out, people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. 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. Mr Jolly never addressed that question. Accordingly, it seems to us that he failed to take into account a relevant consideration. This was the view of the learned primary judge, his Honour concluding that Mr Jolly "did not duly consider the nature of a marriage relationship and misdirected himself as to the nature of the discretion to be exercised by him."
28 Subsequently, in Angkawijaya the Full Court dismissed an appeal from a decision in which it had been held that the Tribunal had erred in imposing "its own value judgment in applying the relevant legislative provisions": [2016] FCAFC 5 at [6], (2016) 236 FCR at 305 per Kenny and Griffiths JJ. Allsop CJ concluded that a "couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love": [2016] FCAFC 5 at [3], (2016) 236 FCR at 304. Kenny and Griffiths JJ considered the earlier decision in Dhillon and concluded that in that case the "Court found … that it was not necessarily inconsistent with a genuine relationship that one or both parties entered into it with the hope of becoming eligible to reside in Australia": [2016] FCAFC 5 at [44], (2016) 236 FCR at 315. Provided that "the relevant time is firmly kept in mind", their Honours saw "no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship": [2016] FCAFC 5 at [64], (2016) 236 FCR at 320.
29 As to the second limb to the present argument, it is concluded that the Tribunal did not permit its findings as to the initial motivation on the part of Mr Singh in entering into the marital relationship and the "coincidence" as to the expiration of the visa and the date of marriage to later "poison" its conclusion as to whether at the time of decision there was a genuine relationship. Both at the outset of its reasons and in its concluding remarks the Tribunal acknowledged that cl 801.221(2)(c) "requires that at the time of this decision, the applicant is the spouse of the 'sponsoring partner'" (at para [5]). Similarly, at para [47] the Tribunal expressly stated that it was "not satisfied that at the time of this decision the parties are in a spousal relationship".
30 No error, it is concluded, is discernible in the Tribunal (for example) taking into account its assessment that Mr Singh was "using the present relationship solely as a means of obtaining the Australian residence" (at para [46]). That was but one of the considerations it took into account, albeit an important consideration, when reaching its ultimate assessment of the "mutual commitment" of Mr Singh and his sponsor and its assessment of whether their relationship was "genuine and continuing". So much is apparent from the Tribunal's acknowledgment (at para [46]) that what it concluded were attempts made by Mr Singh "to seek another option of remaining in Australia" did not "necessarily preclude the existence of a spousal relationship". This is an express recognition on the part of the Tribunal that circumstances may change from those prevailing at the date of the marriage in March 2012 and at the date of the Tribunal's decision over three years later in November 2016.
31 On the facts of the present case, the task entrusted to the Tribunal was to make findings of fact and to reach conclusions directed to (inter alia) s 5F(2)(b) and (c) of the Migration Act. Relevant to that conclusion was (inter alia) an assessment of whether Mr Singh was "using the present relationship solely as a means of obtaining the Australian residence". Also of relevance was an assessment of the genuineness of the relationship "at the time of [the] decision". A finding was made adverse to the claims made by Mr Singh. But it was a finding open to be made on the evidence available and was a finding of relevance to an ultimate conclusion being reached as to whether Mr Singh satisfied the requirements imposed by s 5F(2)(b) and (c) of the Migration Act and thereafter the requirement imposed by cl 801.221(2)(c) of Sch 2 to the Migration Regulations.
32 The Tribunal, it is concluded, did not apply the "wrong test". It clearly acknowledged that an assessment of the genuineness of the relationship had to be made "at the time of this decision" (at paras [5] and [47]) and that was the assessment it made. The assessments it made of the conduct of Mr Singh at the outset of the relationship did not thereafter "poison" the Tribunal's later deliberations such that it did not in fact focus its attention upon the nature of the relationship as at the date of its decision. There is no error discernible in the primary Judge reaching a like conclusion: [2018] FCCA 776 at [23] to [26].