Besetimoala v Minister for Immigration

[2015] FCCA 1083

FEDERAL CIRCUIT COURT OF AUSTRALIA

BESETIMOALA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1083

Catchwords:
MIGRATION – Spouse visa – review of Migration Review Tribunal (“Tribunal”) decision – extension of time.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to apply the correct criteria to the issues of review and failed to recognise that the first applicant was in a genuine spousal relationship.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 415, 476(2)(a), 477

Migration Regulations 1994 (Cth), regs.1.03, 1.15A, cls.100.221 and 100.511 to sch.2
Migration Amendment Regulations 2009 (No.7) (Cth), sub-regs.3(4) and (11)
Migration Amendment Regulations 2010 (No.1) (Cth), reg.3 and item 2 of sch.1

Prodduturi v Minister for Immigration & Border Protection [2015] FCAFC 5
Attorney-General (NSW) v Quin (1990) 170 CLR 1

First Applicant: ARTHUR SAUAKI BESETIMOALA

Second Applicant: CYRIL JABRA BESETIMOALA SAWAKI

Third Applicant: DARREN-LEE BESETIMOALA SAWAKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1863 of 2014

Judgment of: Judge Smith

Hearing date: 3 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 29 April 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms A. Carr of DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1863 of 2014

ARTHUR SAUAKI  BESETIMOALA

First Applicant

CYRIL JABRA BESETIMOALA SAWAKI

Second Applicant

DARREN-LEE BESETIMOALA SAWAKI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of Fiji.  The first applicant is the father of the second and third applicants.  It is convenient to refer to him as the applicant.

2. On 29 January 2009 the applicant applied for both a Class UF (Partner-Provisional)(subclass 309) visa and a Class BC (Partner-Migrant)(subclass 100) visa on the basis of his marriage to an Australian citizen.  The applicant was granted a subclass 309 visa on 9 February 2010 and came to live in Australia on 15 February 2010.  However, on 11 September 2012 a delegate of the first respondent (“Minister”) decided to refuse to grant the applicant a subclass 100 visa.  The applicant applied to the second respondent (“Tribunal”) for review of that decision.  On 29 May 2014 the Tribunal affirmed the delegate’s decision.

Consideration

Extension of Time

1. An application to this Court for judicial review of the Tribunal’s decision must be made within 35 days of the date of the decision: Migration Act 1958 (“Act”) s.477(1). This application was commenced on 4 July 2014, one day out of time. However, on 14 October 2014 the Court made an order under s.477(2) of the Act extending the time within which to make the application.

Ground 2

1. There are two grounds in the application. It is convenient to deal with the second ground first. The ground raised is that the Tribunal “failed to abide by the Partner Visa Offshore and Permanent Act (Subclass 309 and 100)”. However, that Act does not exist and never has existed. The particulars shed some light on the ground. They state that “a permanent visa may be granted, if at the time of the application, I have been married for more than 2 years and that we had been in a relationship more than 3 years.”

2. The particulars reflect the following submission made by the applicant to the Tribunal in an undated letter:

   2) I am also appealing for a review of the decision not to grant me Permanent Residency Sub-Class 100, by my case officer in Fiji, when the decision to Grant me provisional visa Sub-Class 309 was made.

3. The applicant’s point is that, because he was married to his sponsoring spouse on 11 February 2006 and had been in a de facto relationship with her since 2005, he was entitled to a subclass 100 visa immediately, rather than having to wait for 2 years for the grant of that visa.

4. As noted at [2] above, on 29 January 2009 the applicant applied for both a Class UF (Partner-Provisional)(subclass 309) visa and a Class BC (Partner-Migrant)(subclass 100) visa. It is necessary to say something about the scheme of these classes of visas.

5. In brief, the scheme of these classes of visas is that an application is made offshore (that is, outside Australia) for both visas and, while the applicant is still offshore, the Class UF (in this case, a subclass 309) visa is granted if the relevant criteria are satisfied. The applicant can then travel to Australia. That visa then lasts until the application for the Class BC visa is determined. A Class BC visa (here, a subclass 100) is described as a permanent visa: cl.100.511 of sch.2 to the Migration Regulations 1994 (“Regulations”).

6. In the applicant’s circumstances, subject to certain exceptions, it was a criterion for the grant of a subclass 100 visa that at least 2 years had passed since the application for the visa was made: sub-cl.100.221(2)(c) of sch.2 to the Regulations. One of the exceptions to that requirement was that, at the time of the visa application the applicant was in a “long-term spouse relationship” with the sponsoring spouse: sub-cl.100.221(5) of sch.2 to the Regulations.

7. The applicant relies on the “long-term spouse relationship” exception as the basis for his argument that he should have been granted the subclass 100 visa on 9 February 2010 instead of the subclass 309 visa. In essence, this ground of the application is that the Tribunal failed to apply the correct criteria to the issues on review.

8. While there are many reasons why this ground must fail, it is necessary to rely on only two short answers.

9. The first is that the definition of “long-term spouse relationship” relied on by the applicant was introduced by operation of reg.3 and item 2 of sch.1 of the Migration Amendment Regulations 2010 (No. 1) (“Amending Regulation”) and only applied to applications for visas made after 27 March 2010. That phrase is defined in reg.1.03. At the time of the visa application it provided:

   Long-term spouse relationship, in relation to an applicant for a visa, means a relationship between the applicant and another person, each as the spouse of the other, that has continued:

   (a)if there is a dependent child (other than a step-child) of both the applicant and the other person - for not less than 2 years; or

   (b)in any other case - for not less than 5 years.

10. The Amending Regulation changed “5” to “3”. There is also no evidence that the applicant and his wife had a dependent child together. Thus, even if it were accepted that the applicant was in a spouse relationship with his wife from 2005 (as the evidence before the Tribunal suggested) his relationship would not have been a “long-term spouse relationship” at the time that he applied for the visas in January 2009. For that reason, the exception to the 2 year requirement did not apply to him and he could not have satisfied the criteria for the subclass 100 visa in February 2010.

11. The second short answer is that the criteria in cl.100.221(2) are cumulative. That means that the Tribunal’s conclusion that the applicant did not satisfy one of those criteria was determinative of the review. A different decision may well have been made by the delegate who considered the application for and granted the subclass 309 visa. It appears that the delegate was satisfied that there was a genuine relationship between the applicant and his wife and, on that basis, if the two year period had not applied the delegate may well have granted the subclass 100 visa. However, this Court has no jurisdiction to review the decision of a delegate that is subject to review under pt.5 of the Act: s.476(2)(a); Prodduturi v Minister for Immigration & Border Protection [2015] FCAFC 5.

12. For both of those reasons, the second ground must fail.

Ground 1

1. The first ground is that the Tribunal failed to recognise that the applicant was in a genuine spousal relationship. This ground does not raise any jurisdictional error. It was a criterion for the grant of the subclass 100 visa that, subject to certain irrelevant exceptions, at the time of the decision, the applicant be the spouse of the sponsoring spouse. “Spouse” is defined in s.5F of the Act. That section provides:

   (1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i) live together; or

   (ii)    do not live separately and apart on a permanent basis.

   (3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   Note:     Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

2. Regulation 1.15A prescribes certain matters for the purposes of s.5F(3) of the Act. At the time that the applicant applied for the visa, reg.1.15A relevantly provided:

   (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); or

   (b)in a de facto relationship, as described in subregulation (2).

   (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, or a de facto relationship, in relation to an application for:

   (ad)a Partner (Migrant) (Class BC) visa; or

   (ae)a Partner (Provisional) (Class UF) visa; or

   (af)a Partner (Residence) (Class BS) visa; or

   (ag)a Partner (Temporary) (Class UK) 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 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 or in a de facto relationship with each other;

   (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.

   …

3. That regulation was subsequently amended by the Migration Amendment Regulations 2009 (No.7). However, pursuant to sub-regs.3(4) and (11) of that amending regulation, the version of reg.1.15A that applied at the time of the applicant’s visa application remained in force in respect of the applicant’s application.

4. Thus, in determining whether the applicant satisfied the criteria for the grant of the visa, the Tribunal had to consider whether his relationship with his wife met the description in s.5F by reference to the matters prescribed by reg.1.15A.

5. The Tribunal did just that.  First, it considered whether the applicant’s marriage was valid as required by sub-reg.1.15A(1A)(a).  Next, it turned to and dealt with each of the matters specified in reg.1.15A(3): the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment of the applicant and his wife to each other.  Having made findings in respect of each of those matters, the Tribunal weighed each of the matters and arrived at what was, in essence, an evaluative judgment as to the nature of the relationship.

6. The applicant contends that this evaluation was wrong. In particular, he claimed that the second sentence in the following statement by the Tribunal was wrong:

   [13]The review applicant and his wife pay $500 per week rent. His wife pays $350 from her account. …

7. He claimed that he gave the Tribunal receipts to show that he in fact paid $250 rather than $150 of the rent. Even if that were the case, it would have made no difference to the decision. The critical aspect of the Tribunal’s reasons in respect of the financial aspects of the applicant’s relationship was that he and his wife had little knowledge of each other’s income and that there was little pooling of their resources. Thus, the point was not that the applicant paid less money than his wife for rent, but that they paid it and almost everything else from separate accounts. For that reason, any error of fact made by the Tribunal did not affect the exercise of its jurisdiction.

8. Finally, the applicant’s contention that the Tribunal was wrong about his relationship with his wife does not raise any jurisdictional error. While it may well be that the applicant and his wife are in a genuine long-term relationship that is not a matter for determination by this Court. That was a matter of which the Tribunal had to be satisfied in determining whether or not the applicant satisfied the criteria for the grant of the visa: ss.65 and 415 of the Act. So long as the Tribunal considered that issue on a proper understanding of the law and based its conclusions on findings of fact that were reasonably open to it and an evaluation of those facts that was reasonable then it is not open to this Court to interfere with the Tribunal’s decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

9. For those reasons, the first ground is rejected.

Conclusion

1. As there is no jurisdictional error in the Tribunal’s decision, the application will be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  29 April 2015