Angkawijaya v Minister for Immigration - [2015] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANGKAWIJAYA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 450

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – Tribunal finding that the parties to the relationship were committed to a long term domestic relationship but were not committed to a shared life together – whether the Tribunal decision was irrational, arbitrary and capricious and whether the Tribunal misconstrued the test for whether a person is in a de facto relationship considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.5CB

Migration Regulations 1994 (Cth)

FTZK v Minister for Immigration (2014) 310 ALR 1; [2014] HCA 2
Kaur v Minister for Immigration [2014] FCA 915
Minister for Immigration v Dhillon [1990] FCA 144
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Tran v Minister for Immigration (2003) 126 FCR 199; [2003] FCA 44

First Applicant:

ANG YENNY ANGKAWIJAYA

Second Applicant:

LYDIA WIBISONO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1696 of 2014

Judgment of:

Judge Driver

Hearing date:

2 March 2015

Delivered at:

Sydney

Delivered on:

20 April 2015

REPRESENTATION

Counsel for the Applicants:

Mr N Poynder

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

DLA Piper

ORDERS

A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 27 May 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1696 of 2014

ANG YENNY ANGKAWIJAYA

First Applicant

LYDIA WIBISONO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

A marriage, whether solemnised under the Marriage Act 1961 (Cth) or not, may take diverse forms and be contracted for diverse reasons. According to popular culture, a marriage should be based on love, or at least a mutual attraction, but the reasons for a marriage may be complex. They may include financial considerations, a need for security, a spontaneous reaction to a previous disappointment or even a desire to project a particular public image. The issue was well framed by the Full Federal Court in Minister for Immigration v Dhillon[1] where Northrop, Wilcox and French JJ, referring to the remarks of Street CJ in R v Cahill[2] at 458 said, at [11]:
…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.
[1] [1990] FCA 144.
[2] (1978) 2 NSWLR 453.
The remarks of Street CJ in R v Cahill were as follows:
Quite apart from matters of religious teaching, it is known that marriages are at times contracted for reasons falling short of the more generally recognized purposes of entering into that relationship. In England in bygone days there were instances of celibate marriages being contracted for the purpose of affecting rights of inheritance of titles. The same situation exists both here and elsewhere in relation to marriages affecting rights of property succession. At times, marriages were or are entered into in connection with legitimation of existing or imminent issue of a since-terminated intimate relationship. The purposes and motives, equally as the hopes and anticipations, affecting two people when they enter into a marriage, are susceptible of too wide a variation to render it possible for the criminal law to classify some as offending, and the others as according with what is meaninglessly described as “community expectation”, in so far as this may travel beyond the specifically prescribed concomitants of a marriage.
The point is that, just as the Tribunal cannot set itself up as the arbiter of religious faith[3] neither can the Tribunal set itself up as the arbiter of community expectations in relation to what is a genuine marriage. This case tests that proposition by reference to its particular facts.
[3] MZJJO v Minister for Immigration [2014] FCAFC 80.
The following statement of background facts is derived from the submissions of the parties.
The first applicant, Ms Angkawijaya, is a citizen of Indonesia who, at the time of the decision under review, was 58 years old.[4] She had first arrived in Australia on a tourist visa in July 1997 and had unsuccessfully applied for protection visas between 1997-2000, after which she had remained unlawfully in Australia. During this time she married a person who was expected to sponsor her to remain in Australia; however that person was ineligible to sponsor her and she did not obtain a visa.[5] She was divorced from the person in April 2008.[6]
[4] Court Book (CB) 566 [4].
[5] CB 576 [82].
[6] CB 566 [5].
Ms Angkawijaya claimed to have met her present sponsor, Mr Limberiou, in May 2006[7] and the Tribunal accepted that they had been living together since at least 2008.[8] At the time of the decision under review Mr Limberiou was 89 years old.[9] He had previously been married and his former wife had passed away in March 2006.[10]
[7] CB 566 [6].
[8] CB 578 [95].
[9] CB 566 [4]..
[10] CB 566 [5].
On 12 November 2009 Ms Angkawijaya lodged her application for a subclass 820/801 partner visa, based on her de facto relationship with Mr Limberiou.[11]
[11] The migration agent’s covering letter and the application documents are at CB 1-121.
On 5 May 2010 Ms Angkawijaya was granted a temporary subclass 820 partner visa authorising her to remain in Australia until notified of a decision regarding her permanent subclass 801 partner visa.[12]
[12] CB 139-142.
On 30 March 2011 Ms Angkawijaya’s daughter (the second applicant), who had remained in Indonesia, was granted a visa as part of Ms Angkawijaya’s application, and on 15 April 2011 she arrived in Australia.[13]
[13] CB 566 [7].
On 20 April 2011 the Minister’s Department received an anonymous allegation that Ms Angkawijaya was not living with Mr Limberiou.[14]
[14] Applicant’s Documents (AD) 1.
On 23 September 2011[15] and 29 February 2012[16] Ms Angkawijaya’s migration agent provided further evidence of Ms Angkawijaya’s relationship with Mr Limberiou in support of the application for a subclass 801 visa.
[15] CB 145-167.
[16] CB 178-199.
On 18 June 2012 a delegate of the Minister was provided by Centrelink with information from its records to the effect that Ms Angkawijaya and Mr Limberiou had notified Centrelink that they had been in a de facto relationship since 1 May 2006 and that, on 12 January 2011, Ms Angkawijaya had notified Centrelink that she was living at the address of Mr Limberiou.[17]
[17] AD 3-10.
On 19 June 2012 the delegate and another officer of the Minister, Ms Bailey, conducted simultaneous telephone interviews with Ms Angkawijaya and Mr Limberiou, during which it was claimed that Ms Angkawijaya and Mr Limberiou gave conflicting answers about their relationship.[18]
[18] AD pp 11-14; CB 203-204.
On 20 June 2012 the delegate sent a letter to Ms Angkawijaya’s migration agent requesting Ms Angkawijaya’s comment on information that her marriage was arranged for the purpose of obtaining permanent residence and that it was not a genuine spousal relationship.[19]
[19] CB 207-208.
On 23 July 2013 Ms Angkawijaya’s migration agent provided a response to the delegate.[20]
[20] CB 212-228.
On 24 September 2012 the delegate made a decision to refuse the application for a subclass 801 visa.[21]
[21] CB 229-238.
On review by the Tribunal on 15 April 2014 Ms Angkawijaya’s representative provided further evidence and submissions in support of the application.[22]
[22] CB 280-466.
On 24 April 2014 a hearing was convened by the Tribunal. Relevantly to the present case, the following evidence was given:
a)the Tribunal asked Ms Angkawijaya about her relationship with Mr Limberiou, suggesting that it was one of caring for him, rather than a feeling of love towards him. Ms Angkawijaya’s response was that “the both are mixed together. There is love. I – I love all people. And, I felt so sad for him when he was crying”;[23]
b)the Tribunal asked Ms Angkawijaya whether the relationship was one where she “looked after” Mr Limberiou, rather than “being affectionate” towards him, to which she responded, “I love him. I love people, generally”.When asked whether she loves Mr Limberiou more than she loves people generally, Ms Angkawijaya said “I love all. Everybody”;[24]
c)the Tribunal ascertained that Ms Angkawijaya did not tell Mr Limberiou about her migration status when they first met, or when she moved in with him, because “He didn’t ask anything”;[25]
d)Ms Angkawijaya said that at first she was to look after Mr Limberiou, “then he was talking about sex. I said, ‘If it’s a matter of sex, then we should be married.’” When asked why she did not marry Mr Limberiou, Ms Angkawijaya said that he had lied three times by talking about their getting married, then “In the end, it was a de facto”;[26]
e)the Tribunal asked Ms Angkawijaya how many trips Mr Limberiou had taken out of Australia since she had known him and she said just one, in 2006.[27] The Tribunal raised new evidence, that according to the Department’s movement records Mr Limberiou had been absent from Australia for a period of three months in 2008.[28]   Ms Angkawijaya denied that this was the case, saying that his only absence had been in 2006.[29] After some discussion the hearing was briefly adjourned and, upon resuming, the Tribunal indicated that Ms Angkawijaya would be able to comment on or respond to the information about Mr Limberiou’s movement records in writing or at another hearing. [30]
[23]    Transcript, page 9, lines 19-29.
[24]    Transcript, page 33, lines 23-30.
[25]    Transcript, page 33, lines 32-43.
[26]    Transcript, page 34, lines 21-31.
[27]    Transcript, page 36, lines 6-9.
[28]    Transcript, page 36, lines 20-27.
[29]    Transcript, page 37, line 1.
[30]    Transcript, page 39, lines 33-36.
On 15 May 2014 Ms Angkawijaya’s representative provided further evidence and submissions in support of the application.[31] Relevantly to the present case, Ms Angkawijaya accepted that Mr Limberiou had made two trips outside Australia since they had been in a relationship; in 2006 and 2008.[32]

[31] CB 472-563.

[32] CB 487 [1]-[3].

The Tribunal’s decision

The Tribunal identified the issue as being whether Ms Angkawijaya is the “spouse” of Mr Limberiou at the time of its decision.[33]
[33] CB 576 [80]. The correct term ought to have been whether Ms Angkawijaya was the “de facto partner” of Mr Limberiou but no point is taken here.
The Tribunal noted Ms Angkawijaya’s migration history and considered that she had clearly demonstrated an intention to remain in Australia permanently, and that her lengthy illegal stay while working indicated a “complete disregard for Australian migration law”.[34]
[34] CB 577 [82].
With respect to the various elements required to be considered under regulation 1.09A(3) of the Migration Regulations 1994 (Cth) (Regulations) the Tribunal found:
a)on the financial aspects of the relationship, that Ms Angkawijaya did not have a detailed knowledge of Mr Limberiou's financial affairs, and does not have access to his funds other than the money that he puts into their joint account, which is for her own use and for the support of her children, that Mr Limberiou pays for almost all the household expenses, and that Ms Angkawijaya’s earnings are used to provide for her children;[35]
b)on the nature of the household, that the parties live together and have been living together since at least 2008, that they share a bedroom, and that Ms Angkawijaya does most of the household chores but Mr Limberiou occasionally prepares a meal;[36]
c)on the social aspects of the relationship, that that there is social recognition of the relationship between the parties and that they are known to be a couple, that Mr Limberiou's two sons recognise the relationship, although there is some caution and it is not embraced by the sons.[37] The Tribunal gave “limited weight” to the social recognition of the relationship because of a number of aspects about the relationship that caused the Tribunal “considerable concern”;[38]
d)on the nature of the persons' commitment to each other, the Tribunal found as follows at [103]:[39]
The Tribunal is of the view that Mrs Angkawijaya and Mr Limberiou are committed to an agreement that they have negotiated to meet particular needs, rather than committed to a relationship with each other. The Tribunal considers that they have agreed to exchange services, and the Tribunal accepts that to this extent they see the relationship as long term. Mrs Angkawijaya has agreed to stay with Mr Limberiou for as long as he lives, and in return her expenses for her and her children are provided for, and she secures permanent residency for herself and her children. When the Tribunal raised this issue stating that it appeared she was more a carer for Mr Limberiou, than in a committed relationship with him, she stated that both were mixed together. She loves all people. She had felt sorry for Mr Limberiou. The Tribunal accepts that Mrs Angkawijaya has prepared meals for Mr Limberiou, has assisted him with his medication and treatment, and that she accompanies him at home. It accepts that their relationship has been physically intimate. However it does not accept that this represents or demonstrates commitment to him in a shared life together as … partners.
[35] CB 578 [91]-[92].
[36] CB 578 [93]-[95].
[37] CB 579 [100].
[38] CB 579 [100].
[39] CB 579.
After referring to evidence from Mr Limberiou’s doctor which supported his “domestic relationship” with Ms Angkawijaya, the Tribunal repeated its acceptance that Ms Angkawijaya had agreed to care for Mr Limberiou in exchange for permanent residency and financial support; then:[40]
[40] CB 580 [104].
However, the Tribunal does not consider they are committed to a shared life together.
The Tribunal then gave several reasons why it did not consider Ms Angkawijaya and Mr Limberiou were committed to a shared life together.
From Mr Limberiou’s point of view, the Tribunal noted that during the hearing he was unable to pronounce and spell Ms Angkawijaya’s surname. The Tribunal considered that “this reflects a level of indifference in regard to Mr Limberiou's relationship” with Ms Angkawijaya, such that: [41]
…his interest appears to be that of having someone being with him rather than being committed to a relationship with Mrs Angkawijaya and to a shared life together.
[41] CB 580 [105].
From Ms Angkawijaya’s point of view, the Tribunal noted:
a)that when asked about the reason for her partner visa application Ms Angkawijaya had said that she loves Mr Limberiou and she loves people generally and, when asked if she loved Mr Limberiou more than she loves people generally, she said that she loves all; she loves everybody;[42]
b)that when asked why she and Mr Limberiou had not married, Ms Angkawijaya had said that he had promised to marry her but he had lied three times and then he forgot about it;[43]
c)that Ms Angkawijaya had not told Mr Limberiou about her illegal migration status at the time that she met him or when she moved in with him;[44]
d)that Ms Angkawijaya had not been aware that Mr Limberiou had been absent from Australia for three months in 2008.[45]
[42] CB 580 [106].
[43] CB 580 [106].
[44] CB 581 [107].
[45] CB 581 [108].
The Tribunal considered that each of the above pieces of evidence did not support Ms Angkawijaya’s claim to have been in a committed relationship with Mr Limberiou.
The Tribunal again referred to Ms Angkawijaya’s migration history and noted its concern that she had lodged her current application so that she can remain in Australia permanently, rather than there being a genuine commitment to a shared life with Mr Limberiou. The Tribunal said: [46]
…given her ambivalence about her feelings towards Mr Limberiou, and the other concerns discussed above, the Tribunal is not satisfied that there is a mutual commitment to a shared life together.

[46] CB 581 [110].

The judicial review application

The applicants rely upon their judicial review application filed on 23 June 2014:
1. The second respondent’s finding, that the first applicant and her sponsor were not at the time of the second respondent’s decision in a genuine de facto relationship, was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Particulars
(a) The second respondent made the following findings which strongly supported the genuineness of the de facto relationship:
(i)     That the first applicant and her sponsor live together, and that they had been living together since at least 2008.
(ii)    That the first applicant and the sponsor share a bedroom and that their relationship has been physically intimate.
(iii) That the first applicant does most of the household chores in the shared home.
(iv) That the first applicant assists the sponsor with his medication and treatment and that she accompanies him at home.
(v)     That the sponsor pays for all household expenses, including food, electricity and clothing, that he pays for things when he and the first applicant go shopping, and that he buys the first applicant presents.
(vi) That there is social recognition of the de facto relationship between the first applicant and the sponsor, that they are known to be a couple by the first applicants’ friends from church, and that the sponsor’s sons recognise that the first applicant and the sponsor are in a relationship.
(vii) The sponsor had from March 2009 until December 2013 put money for the use of the first applicant into a bank account held jointly by the sponsor and the first applicant.
(b) The second respondent’s finding that the first applicant and her sponsor were not in a genuine de facto relationship was in part based on its concern about the sponsor’s level of commitment to the first applicant and whether he views their relationship as a shared life together. This expression of concern was based solely on the sponsor’s inability to pronounce or spell the first applicant’s full surname at the hearing. In expressing this concern, the second respondent made the following assumptions for which there was no logical or rational basis:
(i)     That an 89 year old man of Greek ethnicity and language would necessarily be able in a hearing to speak or write a complex surname in the Indonesian language.
(ii)    That, where there was evidence that the first applicant is known socially and to the sponsor by the abbreviated surname, “Ang”, a person such as the sponsor would not always use that abbreviated form of the surname and have no need to speak or write the full surname.
(iii) That the use of the first applicant’s full surname in documents drafted by legal and migration representatives necessarily indicated that the sponsor had spoken or written that full surname.
(c) The second respondent’s finding that the first applicant and her sponsor were not in a genuine de facto relationship was in part based on its view that the first applicant had given evidence which indicated some ambivalence about her feeling towards the sponsor. In expressing this concern, the second respondent made the following assumptions for which there was no logical or rational basis:
(i)     That an expression by the first applicant that she loves the sponsor and loves everybody is not consistent with a person committed to a shared life together with the sponsor.
(ii)    That a minor allegation of “a lie” and the failure by the applicant to tell the sponsor of her unlawful status at the commencement of their relationship was not reflective of a genuine de factor relationship as at the time of the second respondent’s decision.
(iii) That the failure by the first applicant at the hearing to recall that her sponsor had made an overseas trip in 2008, before the first applicant had claimed to have entered into the de facto relationship and almost six years prior to the hearing, was not reflective of a genuine de facto relationship as at the time of the second respondent’s decision.
2. The second respondent’s finding that the first applicant and her sponsor were not at the time of the second respondent’s decision in a genuine de facto relationship was arbitrary, capricious, without common sense and plainly unjust.
Particulars
The first applicant refers to and relies on the above particulars.
3. The second respondent misconstrued the test for whether a person is the de facto partner of another person in s.5CB of the Migration Act 1958 (the Act).
Particulars
(a) The second respondent failed to recognise its finding that the first applicant had demonstrated an intention to remain in Australia permanently was consistent with the requirements of a de facto relationship in s.5CB of the Act.
(b) The second respondent failed to recognise its view that an agreement had been negotiated between the first applicant and the sponsor by which they have agreed to meet particular needs, to exchange services, and which they see as a long term relationship, is consistent with the requirements of a de facto relationship in s.5CB of the Act.
(c) The second respondent erroneously considered it to be a requirement for a de facto relationship that it be characterised by romantic love.

In addition to the court book filed on 28 July 2014, I have before me as evidence the affidavit of Ms Angkawijaya made on 23 June 2014, to which is annexed (among other things) a copy of a transcript of the Tribunal hearing on 24 April 2014. I also received as an exhibit[47] a bundle of additional documents tendered by the applicants.
[47] Exhibit A1.
The applicants and the Minister both made oral as well as written submissions.

Consideration

Relevant legislation

I accept the submissions of counsel for the applicants concerning the relevant legislation.
The criteria for a subclass 801 visa are set out in Schedule 2, Part 801 of the Regulations.
Subclause 801.221(2)(c) provides that, as at the time of decision, the applicant must satisfy the Minister that he or she is the “de facto partner” of the sponsoring partner.
“De facto partner” is relevantly defined in s.5CB of the Migration Act 1958 (Cth) (Migration Act) as follows:
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)the relationship between them is genuine and continuing; and
(c)they:
(i)     live together; or
(ii)    do not live separately and apart on a permanent basis; and
(d)     they are not related by family (see subsection (4)).
Section 5CB(3) provides that the Regulations may make provision in relation to the determination of whether one or more of the conditions in s.5CB(2)(a), (b), (c) and (d) exist. Regulation 1.09A relevantly states:
(1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
…
Regulation 1.15A(2) relevantly states that the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
Regulation 1.09A(3) then sets out the following matters:
(a)    the financial aspects of the relationship, including:
(i)any joint ownership of real estate or 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 person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b)    the nature of the household, including:
(i)any joint responsibility for care and support of children; and
(ii)the living arrangements of the persons; and
(iii)any sharing of responsibility for housework; and
(c)     the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(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; and
(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.

Applicants’ contentions

Ms Angkawijaya’s contention is that the Tribunal misconstrued those elements of the test for “de facto partner” and “de facto relationship” in s.5CB(2)(a) and (b) of the Migration Act; namely, the requirements that there be “a mutual commitment to a shared life to the exclusion of all others”, and a “genuine and continuing” relationship between the parties.
The Tribunal’s view of the relationship between Ms Angkawijaya and Mr Limberiou is most succinctly set out in the decision at [103].[48] It accepted that Ms Angkawijaya and Mr Limberiou were “committed to an agreement”, and that “they see the relationship as long term”. The Tribunal considered that, on the one hand, Ms Angkawijaya had agreed to remain with Mr Limberiou “for as long as he lives”, noting that Ms Angkawijaya prepares his meals, assists him with his medication and treatment, and accompanies him at home, while on the other hand, it noted that Mr Limberiou provides for Ms Angkawijaya and enables her and her children to secure permanent residency.
[48] CB 579.
Ms Angkawijaya submits that this alone should have compelled the Tribunal to find that Ms Angkawijaya and Mr Limberiou were in a “committed”, “genuine” and “continuing” relationship for the purposes of s.5CB(2)(a) and (b).
The Tribunal was entitled to reject Ms Angkawijaya’s evidence that the relationship had been entered into out of “love”. Even at its lowest, however, a relationship entered into for mutual convenience (care and companionship in return for financial security and permanent residency rather than for love) with the expressed commitment that it last for as long as the other party lives, met the requirements of “commitment” and “continuity”. This was further enhanced by the accepted evidence that Ms Angkawijaya and Mr Limberiou had been living together since at least 2008, that they shared a bedroom and their relationship had been physically intimate, and that there was social recognition of the de facto relationship.
Ms Angkawijaya submits that the Tribunal’s error, and its misconstruction of s.5CB(2)(a) and (b), was to look for intimacy, indeed love, beyond the nature of the relationship that it had described at [103]. Thus, the Tribunal at [105] considered that Mr Limberiou ought to have known Ms Angkawijaya’s rarely used and difficult surname; at [106] it looked for a direct expression of “love” from Ms Angkawijaya towards Mr Limberiou; at [107] it considered that Ms Angkawijaya ought to have confided her migration status to Mr Limberiou; and at [108] it considered that during the hearing she should have remembered that he had been overseas in 2008, at a time that the Tribunal had already accepted[49] that they had been living together.
[49] at [95].
The Tribunal was required to assess the nature of Ms Angkawijaya’s relationship with Mr Limberiou in light of its particular circumstances.[50] In light of the Tribunal’s finding as to the nature of the relationship at [103], none of the factors referred to above at [23] were necessary to establish that the relationship was “genuine”. There was no “rational connection” between these factors and the relationship as described at [103].[51] The decision is said therefore to have been unreasonable in the sense described by the High Court in Minister for Immigration v Li.[52]

[50] Tran v Minister for Immigration (2003) 126 FCR 199; [2003] FCA 44 at [14].

[51] cf FTZK v Minister for Immigration (2014) 310 ALR 1; [2014] HCA 2 at [6] and [18] (French CJ and Gageler J), [31] and [39] (Hayne J), [96] (Crennan and Bell JJ).

[52] (2013) 249 CLR 332; [2013] HCA 18 at [28] (French CJ), [70] (Hayne, Kiefel and Bell JJ).

The Minister’s contentions

The Minister contends that the grounds in the application seek merits review. Further, the Minister contends that the particulars do not support the grounds.
In relation to Ground 1, the Minister submits, as to particular (a), that it is not impossible for two people to have all the outward appearance of a couple and yet not be a couple at all. The high standard of illogicality or irrationality is not met here.[53]
[53] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130].
As to particular (b), the Minister submits that it is wrong to say that the Tribunal based its decision “solely” on Mr Limberiou’s inability to pronounce Ms Angkawijaya’s last name. The Tribunal in fact found that Mr Limberiou had a level of indifference to Ms Angkawijaya.[54] While the example used to support this was Mr Limberiou’s inability to pronounce Ms Angkawijaya’s name, the finding was also supported by other evidence such as his answer to what he would do if Ms Angkawijaya was refused a visa: “he would find someone else to help him. He needed someone to cook, wash and iron for him”.[55] There was also evidence that he lied to her three times about getting married.[56]
[54] at [105].
[55] at [50].
[56] at [27].
In any event, it is not irrational to expect someone to be able to pronounce a partner’s name; even a difficult one. The logical foundation for this was, as the Tribunal noted, the length of time they claimed they had been together and that, contrary to Ms Angkawijaya’s submissions, Mr Limberiou had used Ms Angkawijaya’s name in many documents.[57]
[57] at [105].
As to particular (c), the Minister submits that it was open to the Tribunal to conclude that Ms Angkawijaya gave evidence which demonstrated an ambivalence towards Mr Limberiou. When asked if she loved him, she responded “she loves him and she loves people generally”. When asked if she loved him more than people generally she responded “she loves all. She loves everybody”.[58] That is certainly ambivalent. The finding was open to the Tribunal.
[58] Applicants’ Submissions [15(b)].
As to Ground 2, the Minister submits that it is not clear how the ground differs from Ground 1. The same high standard of irrationality applies.[59] There was nothing arbitrary or capricious about this decision. It was not decided on a whim or caprice,[60] but rather was made on the basis of a considered approach to the evidence, and on findings made on the basis of that evidence.
[59] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130].
[60] See Kaur v Minister for Immigration [2014] FCA 915 at [63].
Ground 3 is based on three propositions:
a)that a desire to stay in Australia is consistent with the existence of a de facto relationship;
b)that an agreement as to domestic affairs is also consistent with such a relationship; and
c)that the Tribunal considered that there had to be “romantic love” in order for there to be a de facto relationship.
The applicants’ written submissions appear to be principally directed to this last point.
The Minister submits that particulars (a) and (b) are plainly misconceived. Ms Angkawijaya’s desire to stay in Australia may well be consistent with the existence of a de facto relationship, but the Tribunal’s point was different. Ms Angkawijaya, since her arrival in 1997, had done many things to stay in Australia. The formation and continuation of her relationship with the sponsor could be seen to be driven solely by that desire. That is relevant to whether the relationship is genuine. Similarly, just because an agreement about domestic affairs can be consistent with a de facto relationship, it does not mean that there is such a relationship. Ms Angkawijaya’s argument is said to entail a logical fallacy.
Particular (c) must also fail, in the Minister’s submission. It attacks a finding the Tribunal never made. The Tribunal did not say that romantic love was what it understood was required in a de facto relationship. To the contrary, it stated, over and over, that what was required was a “mutual commitment to a shared life together”. The Tribunal was ultimately not satisfied of the existence of such a commitment because of the apparent indifference of Mr Limberiou towards Ms Angkawijaya, and the ambivalence of Ms Angkawijaya towards Mr Limberiou.[61] In other words, they found a convenient way to meet their own needs: Mr Limberiou to be looked after, and Ms Angkawijaya to stay in Australia and bring her children here.[62] It was open for the Tribunal to not be satisfied that there was a mutual commitment. It is really just a question of fact, and there is nothing in the reasons to suggest legal error.

[61] at [105], [106], [110].

[62] at [103].

Resolution

In my opinion, jurisdictional error in relation to Ground 3 has been established. It is unnecessary to express a view in relation to Grounds 1 and 2. It can be readily accepted that the relationship between Ms Angkawijaya and Mr Limberiou is unconventional. There is a very substantial age gap. It is likely that Ms Angkawijaya was motivated to enter into a relationship with Mr Limberiou in order to obtain permanent residence in Australia. It is also likely that Mr Limberiou was motivated to enter into the relationship in order to obtain the physical and emotional support that he perceives he needs in his old age. It does not follow, however, that the relationship does not meet the test of a de facto partnership for the purposes of s.5CB of the Migration Act. At the time of the Tribunal’s decision, the relationship between the parties had been a long standing one (since at least 2008) and the financial aspects of the relationship were well established. The parties lived together in a relationship which was undoubtedly intimate (whether or not it was sexual). The Tribunal acknowledged that there was social recognition of the relationship and that Ms Angkawijaya and Mr Limberiou are known to be a couple.[63]
[63] see CB 579 [100].
Critically, and as noted in the applicant’s submissions, the Tribunal’s negative conclusion rested upon its reasoning at [103][64] where the Tribunal said:
The Tribunal is of the view that Mrs Angkawijaya and Mr Limberiou are committed to an agreement that they have negotiated to meet particular needs, rather than committed to a relationship with each other. The Tribunal considers that they have agreed to exchange services, and the Tribunal accepts that to this extent they see the relationship as long term. Mrs Angkawijaya has agreed to stay with Mr Limberiou for as long as he lives, and in return her expenses for her and her children are provided for, and she secures permanent residency for herself and her children. When the Tribunal raised this issue stating that it appeared she was more a carer for Mr Limberiou, than in a committed relationship with him, she stated that both were mixed together. She loves all people. She had felt sorry for Mr Limberiou. The Tribunal accepts that Mrs Angkawijaya has prepared meals for Mr Limberiou, has assisted him with him medication and treatment, and that she accompanies him at home. It accepts that their relationship has been physically intimate. However it does not accept that this represents or demonstrates commitment to him in a shared life together as … partners.
[64] CB 579.
The reality (on all of the material before the Tribunal), was that Ms Angkawijaya and Mr Limberiou had entered into an agreement to remain together until his death and to support each other in a personal relationship. The elements of that relationship went well beyond a contractual agreement to provide care services. It was unrealistic for the Tribunal, given the circumstances of the relationship, and the age gap between the parties to it, to expect a demonstration of romantic love and Ms Angkawijaya was honest in not attempting falsely to assert any romantic love. What was or should have been apparent to the Tribunal was that Ms Angkawijaya showed a genuine commitment to a shared life with Mr Limberiou. He at least arguably had a similar commitment to her.
The reasons for entering into that commitment were no doubt calculated to obtain a personal advantage on both sides. She was to get residency. He was to get care and support. Some may disapprove but that is a value judgement. Mr Limberiou was honest when he told the Tribunal that if Ms Angkawijaya were denied a visa he would find someone else. That is what many people do when they are deprived of their partner by circumstances beyond their control. It is neither for this Court, nor the Tribunal, to make a value judgement on the motivation for the relationship.
In my opinion, the Tribunal imposed a value judgement in its application of the criteria in regulation 1.09A for the purposes of s.5CB of the Migration Act which led it into error. By applying a value judgement, the Tribunal lost sight of what the Full Federal Court in Minister for Immigration v Dhillon[65] emphatically stated was the true and only test in relation to a partner visa: that 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 a husband and wife to the exclusion of all others. The reasons for entering into that commitment are immaterial.

[65] [2014] FCAFC 1587.

Conclusion

The applicants have succeeded in establishing that the Tribunal decision is affected by jurisdictional error. They should therefore receive the relief they seek.
I will hear the parties as to costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 20 April 2015