Beach Petroleum Nl v Johnson

[1992] FCA 110

Re: ALICE BENLOT
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G372 of 1991
FED No. 110
Migration
(1992) 26 ALD 708 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Migration - refusal to grant an extended eligibility (spouse) permit - alleged de facto marriage - issue of fact - whether the Court should review findings of fact - whether officer investigating the alleged marriage was under a duty to inquire of all persons who might be able to throw light on the application.

HEARING

SYDNEY

#DATE 13:3:1992

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the Respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application brought by Alice Benlot, seeking orders of review with respect to a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs which refused to grant to Mrs Benlot an extended eligibility (spouse) entry permit which, if granted, would have entitled Mrs Benlot to remain permanently in Australia. Relevant provisions of Regulation 126 of the Migration Regulations read when the decision was made:-

"126 (1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application for the permit is decided:

(a) the applicant:

(i) is the spouse of:

(A) an Australian citizen; or

(B) an Australian permanent resident;

who:

(C) was the spouse of the applicant when the

application was made; and

(D) nominated the applicant for grant of the

entry permit; and

(E) has a marital relationship with the applicant

that is genuine and continuing; ..."

Regulation 2(1) defined spouse to mean:-

"(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 de facto spouse."

1. Mrs Benlot, who was then a 46 year old Filipino citizen in Australia pursuant to a visitor's entry permit, made application on 22 March 1991 for an extended eligibility (spouse) permit under r.126. Her application was supported by Mr Guiseppe Martelli, who nominated Mrs Benlot for the grant of the entry permit. I have been informed by counsel for Mrs Benlot that Mr Martelli was a 75 year old Italian who had been in Australia for many years. The application was made on the ground that Mrs Benlot and Mr Martelli had a de facto marital relationship. The issue on which the grant or refusal of the permit turned was whether or not Mrs Benlot and Mr Martelli had that marital relationship and, if so, whether the relationship was genuine and continuing.

2. The investigation of the facts was undertaken not by the decision-maker himself but by Mr Adam Kosack, an officer of the Department of Immigration, Local Government and Ethnic Affairs. No challenge is made with respect to that. However, a number of grounds of challenge have been put forward by Mr N. Mayell, counsel for Mrs Benlot. Mr Mayell encompassed these grounds under the general heading of natural justice, using that term in an all embracing sense and not limited to the issue of procedural fairness discussed in cases such as Kioa v. West (1985) 159 CLR 550.

3. I do not propose to discuss Mr Kosack's reasons at length for I am satisfied that no ground of review has been established. The issue which Mr Kosack had to consider was an issue of fact. It is not for this Court to review findings of fact. The determination of facts is committed to the decision-maker and his view must stand unless the determination was so perverse or unreasonable that no reasonable decision-maker could have arrived at it. See Mason C.J. in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 358-359.

4. Mrs Benlot first arrived in Australia on 6 November 1988. It was alleged that she and Mr Martelli formed a relationship during November 1988 but Mr Martelli's wife, who suffered considerable ill health, was at that time living. On 8 January 1989, Mrs Benlot applied for and was granted a further temporary entry permit. Mrs Benlot departed Australia on 5 August 1989. She returned on 11 November 1990 and was granted a temporary entry permit valid until 11 February 1991. On 4 February 1991, Mrs Benlot applied for the grant of a further entry permit claiming that she wished to see relatives in and to visit more of Australia. In this application, Mrs Benlot stated her marital status as married, referring thereby to her husband in the Philippines. Mrs Benlot did not complete the space provided with respect to a de facto relationship. In this application form as in the previous application forms, Mrs Benlot gave her residential address as 4/28 St Luke Street, Randwick, which was her sister's home. No mention of Mr Martelli was made in any of the application forms lodged in respect of the abovementioned periods though provision was made for a list of friends and relatives in Australia.

5. The allegation made to Mr Kosack was that Mr Martelli's wife died on 2 January 1991 and that Mrs Benlot was informed of this on 8 January 1991, that shed moved into Mr Martelli's home on the afternoon of 9 January 1991 and that she resided with him in a de facto marriage thereafter.

6. Mr Kosack interviewed Mrs Benlot and Mr Martelli and made it clear what was the issue. He was provided with letters addressed to Mr Martelli's home, with some bank records, with medical fund books, with photos showing Mrs Benlot and Mr Martelli together, with copies of a telephone account and with documents relating to international money transfers. Mr Kosack also received statutory declarations from Mrs Benlot's sisters.

7. Several factors led Mr Kosack to a lack of satisfaction that there was a genuine marital relationship as at 22 March 1991, the date of the application.

8. Mr Kosack was not satisfied that Mrs Benlot did reside with Mr Martelli from 9 January 1991 onwards. Mr Kosack took account of the application for the visitor's visa which was lodged on 4 February 1991 which gave the Randwick address and made no reference to Mr Martelli. Mr Kosack had regard to the fact that, on 15 May 1991, an officer of the Department telephoned the sister's home and was advised that Mrs Benlot resided there. Mr Kosack further thought it strange that he was given 11 letters from 22 February 1991 onwards sent by the sister at Randwick to Mrs Benlot at Mr Martelli's address and concluded that it was likely that the letters were sent "solely or substantially to evidence that the applicant resides with the nominator".

9. Secondly, Mr Kosack took account of the general policy of the Department of Immigration, Local Government and Ethnic Affairs not to accept the de facto relationship as genuine and continuing unless it had existed for 6 months prior to the lodgement of the application for the permit. Mr Kosack referred to the policy which stated:-
   

"Only those applicants who are able to fully demonstrate their mutual support and co-operation in financial and domestic

matters can be seen as meeting the genuineness criterion if their relationship began less than 6 months before

application."

Mr Mayell did not raise any ground of challenge based on the taking into account of this general policy.

1. Thirdly, Mr Kosack doubted that the relationship between Mrs Benlot and Mr Martelli constituted a relationship in the nature of a de facto marriage. Mr Kosack noted that Mrs Benlot had said "that she massages the nominator, reminds him to take his tablet and prepares food for him" and further that "both the applicant and the nominator claim to watch television together. From the content of the interview, this would appear to be the major recreational interest they share." Mr Kosack noted that Mrs Benlot spoke only a little Italian and Mr Martelli spoke only a little English and noted that "they do not share fluency in a common language nor do they appear to be able to share substantial conversation."

2. I have omitted many of the matters which Mr Kosack took into account, for his report was comprehensive and his inquiries appear to have taken some months. However, the above description is sufficient to outline the general structure of Mr Kosack's thinking and sufficient to make it clear that there were factors pointing both ways for and against a genuine de facto relationship. No challenge taken to the decision could succeed on the ground that it was perverse or so unreasonable that no reasonable decision-maker could have come to it. The decision taken was open on the material before the decision-maker.

3. Mr Mayell submitted that there was a breach of procedural fairness and a failure to take into account material which could and should have been obtained because Mr Kosack failed to interview Mrs Benlot's sister Lota Parczewski, failed to interview Mr Martelli's daughters and failed to interview Mr Remy Nukum, who lived in a flat behind Mr Martelli's home. Mr Mayell submitted that Mr Kosack should not have formed a view adverse to Mrs Benlot without making inquiries of these persons.

4. However, although it is sometimes said that a decision-maker should not fail to take into account all the material that was or should have been before him, such a reference to the material which the decision-maker should have but did not have before him is a reference to material which the decision-maker is deemed by law to have had or should have had because it was information held by the Department which should have been passed to him or was information so vital that it would have been unreasonable for the decision-maker to come to a decision without obtaining it. These matters have been discussed by Keely, Wilcox and Gummow JJ. in J. Wattie Canneries Ltd v. Hayes (1987) 74 ALR 202 at 216-7 and by Wilcox J. in Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. I need not add to their Honours' observation.

5. A decision-maker is not bound to accept an allegation of fact put to him unless he can prove the contrary and he is not bound to make an applicant's case for him. The rules of procedural fairness as expounded in Kioa v. West merely require a decision-maker to give to an applicant a fair opportunity to put his or her case. This may involve giving to an applicant both an opportunity to make representations and an explanation of matters of substance that may be taken into account contrary to the applicant's case, so that the applicant has an opportunity of answering or otherwise dealing with such matters. However, it is not the task of busy officers of the Department of Immigration, Local Government and Ethnic Affairs, whose duty it is to consider applications lodged in writing in accordance with the regulations, to make inquiries of all persons who may be able to throw light one way or another upon an application being considered.

6. Mrs Benlot understood what was in issue and it was for this reason that she supported her written application with a good deal of documentary material such as the letters I have mentioned and also the statutory declarations on which she relied. According to Mrs Benlot's affidavit in these proceedings, it was Mr Kosack who raised the issue of Mr Martelli's family, for he asked Mrs Benlot "What do Guiseppe Martelli's family think about your relationship with him?" That Mr Kosack asked this question shows that he was genuinely interested to understand what was the nature of the relationship. It was not his task or task of the decision-maker to go out and to interview the daughters nor was it Mr Kosack's task to seek to interview Mrs Benlot's sister or Mr Nukum. I see no reviewable error on this aspect of the matter.

7. Mr Mayell submitted that it was unreasonable for Mr Kosack to draw any conclusion with respect to or arising from the lack of fluency in a common language which Mr Kosack had perceived. However, the ability of Mrs Benlot and Mr Martelli to communicate with each other was a relevant factor for Mr Kosack to take into consideration in deciding what was the relationship between them. What conclusion of fact he drew and what use he made of the fact was a matter for him, for he was the decision-maker of fact. There was no error of law in this respect.

8. Mr Mayell went so far as to submit that the view of Mr Kosack on this point was so unreasonable that it demonstrated that Mr Kosack was racially biased against Mrs Benlot. However, Mr Kosack's reasons for his decision do not support that contention in any way. Mr Kosack seems to have considered carefully and comprehensively all the available material in this difficult case.

9. It was next submitted that Mr Kosack did not adequately investigate the financial arrangements between Mrs Benlot and Mr Martelli. But this issue is similar to the allegation respecting a lack of inquiry of Mr Martelli's daughters and others. Mr Kosack was under no duty of investigation to do other than to make it clear to Mrs Benlot what were the issues to be considered and to consider the material which Mrs Benlot produced to him. Prior to interviewing Mrs Benlot and Mr Martelli together, Mr Kosack had received from Mrs Benlot a joint bank account in the name of herself and Mr Martelli. At the joint interview, he received further documents including a photocopy of a bank book evidencing a joint account opened 26 February 1991 and a health fund membership book in Mr Martelli's name showing "Alice" as Mr Martelli's spouse. Accordingly, it was known by Mrs Benlot what was the type of information which would support her claim. The information she produced was considered by Mr Kosack. Mr Kosack in fact himself made some enquiry. The affidavit of Mrs Benlot filed in these proceedings shows that during the joint interview Mr Kosack questioned her as to how she supported herself and how she supported or assisted her children in the Philippines. According to Mrs Benlot, she responded that she supported herself and assisted her children from money given to her by Mr Martelli and she informed Mr Kosack that there were chequebooks and bank statements to support this. Whether or not Mr Kosack accepted this information or, if he did, what use he made of it was a matter for him and for the decision-maker. They were not bound to accept Mrs Benlot's statements of fact or conclude from what she said that there was a genuine de facto marital relationship between her and Mr Martelli.

10. In my opinion, no ground of judicial review has been established. In the circumstances, the application will be dismissed with costs.