Bretag v IRT

[1991] FCA 755

Re: BARBARA JUNE BRETAG
And: IMMIGRATION REVIEW TRIBUNAL and MINISTER OF STATE FOR IMMIGRATION, LOCAL
GOVERNMENT and ETHNIC AFFAIRS
No. S G72 of 1991
FED No. 755
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Immigration - Application for a permanent entry permit after entry of the spouse class (801) - PEPAE - Tribunal to assess application by having regard to circumstances at the time of the application - subsequent events can be used as an aid but in the absence of relevant evidence are not to be treated as determinative.

HEARING

ADELAIDE

#DATE 29:11:1991

Counsel for the Applicant : Mr M. Boylan

Solicitors for the Applicant : McDonald and Co

Counsel for the Respondent : Ms S. Singh

Solicitors for the Respondent: The Australian Government Solicitor

JUDGE1

The applicant, Barbara June Bretag, seeks an order of review in respect of the decision of the first respondent, the Immigration Review Tribunal ("the Tribunal") whereby it affirmed an earlier decision not to grant to the applicant a "permanent entry permit after entry of the spouse class (801)"; such a permit is commonly known by the acronym PEPAE.

1. The facts, although unusual, can be briefly stated. About Christmas 1988, on her second visit to her sister in Moonta, South Australia, the applicant, a United Kingdom national, met Gregory Bretag; they commenced living together some 4 or 5 months later. The applicant returned to the United Kingdom in July 1989 but on the eve of her departure Mr Bretag proposed marriage to her and she accepted. She settled her affairs in the United Kingdom and returned to Mr Bretag at Moonta in September 1989 where they planned their marriage which took place on 28 January 1990. Ten days after the marriage on 7 February 1990, an application for a PEPAE was lodged with the Department of Immigration, Local Government and Ethnic Affairs. Unfortunately, the marriage was short-lived; Mr Bretag left the applicant on 22 March 1990. Save for a short period of cohabitation of a day or so some two months later, they have lived separately and apart ever since. In fact, when Mr Bretag left the applicant he returned to live with his first wife Leanne and the two children of their former marriage. The fact of their separation was made known to the Department first by Mr Bretag and later by the applicant.

2. On 29 August 1990 the Department refused the applicant's application for a PEPAE, finding that she had failed to satisfy all the prescribed criteria for the relevant entry permit. On 20 September 1990, the applicant applied for a review of that decision pursuant to the provisions of regulation 21 of the Migration (Review) Regulations; that application was unsuccessful. On 14 January 1991 the applicant applied to the Tribunal for a review of the two earlier decisions. That application was also unsuccessful and it is the decision of the Tribunal that is now the subject of this application for review.

3. The first two decisions were, as the Tribunal correctly pointed out, affected by error. The respective decision makers had assessed the application for a PEPAE by having regard to the applicant's circumstances as at the time of the making of the decision. The Tribunal correctly pointed out that regulation 34A of the Migration Regulations (as in force from 15 January 1990 to 20 August 1990) governed the application for a PEPAE and that the regulation clearly stated that the applicant for an entry permit "must satisfy the prescribed criteria in relation to the relevant class of... entry permits... at the time of application and as applicable at that time" (emphasis added).

4. The criteria were numerous but it is only necessary to have regard to the provisions of regulation 135(b) of the Migration Regulations (as in force from 19 December 1989 to 20 August 1990). That provision nominated, as one of the criteria for a PEPAE that:-
   

"The relationship between the spouses is a genuine and continuing relationship."

It is common ground that all other relevant criteria had been met by the applicant.

1. The Tribunal took evidence from the applicant and Mr Gregory Bretag. Of the applicant the Tribunal had this to say:-
   

"The applicant herself provided forthright and candid evidence concerning the relationship which was of considerable assistance to the Tribunal. In this regard, her genuineness could not be impugned. We are prepared to accept implicitly that as far as the applicant was concerned, her commitment to the relationship and marriage with Gregory Bretag was a total and genuine one."

1. On the other hand Mr Bretag made a most unfavourable impression upon the Tribunal. It said of him that it was "generally unimpressed" with him as a witness. The Tribunal then proceeded to make certain findings, two of which have been distilled as being critical to this application. First the Tribunal stated that it had come to the conclusion that Mr Bretag:-
   

"... had never lost the desire to be reunited with his former wife Leanne, and that constantly in the back of his mind remained the hope and possibility that he would one day do so notwithstanding the relationship with the applicant."

A few sentences later the Tribunal expressed its conclusions in these words:-

"... it is not prepared to accept that his commitment to the marriage with the applicant was such as to exclude the possibility of him sharing a life with his former wife at some stage in the future. Although therefore the parties in this instance may be said to have had a mutual commitment to the marriage, unfortunately for the applicant, this commitment was not one that her husband shared with her 'to the exclusion of others'..."

(Emphasis added)

The reference by the Tribunal to "the exclusion of others" was, so it would seem, a reference to the test laid down by a Full Court of this Court in the Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported: judgment delivered 8 May 1990). That case was also a case dealing with an application for a permanent entry permit based upon marriage to an Australian citizen. In the course of propounding the test to which reference was made by the Tribunal, the Full Court said:-

"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 NSWLR 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."

1. It is apparent from the manner in which the Tribunal emphasised the phrase "to the exclusion of others" that the Tribunal was heavily influenced by the role that Leanne (Mr Bretag's first wife) had played in Mr Bretag's life subsequent to their separation. Indeed the Tribunal took time to investigate the evidence on this subject in some detail. For example, it was Leanne who left Mr Bretag and the separation was against his wishes. Furthermore, he had a very strong attachment to the two children of the marriage and he was strongly influenced by his mother who favoured Leanne and a reconciliation with Leanne. But on the other hand, it was Mr Bretag who was instrumental in obtaining a divorce from Leanne and it was he who proposed to the applicant in July 1989, some seven months before their marriage and approximately two or three months after they commenced living together.

2. Ms Singh, counsel for the respondent, conceded that during the questioning of Mr Bretag before the Tribunal it had not been put to him specifically that he "...had never lost the desire to be reunited with his former wife ..."; Ms Singh also conceded that it had not been expressly put to him that "constantly in the back of his mind remained the hope and possibility that he would one day" be reunited with Leanne notwithstanding his relationship with the applicant. But, said Ms Singh, these were findings that were available to the Tribunal upon the evidence that was before it, as was the further finding that Mr Bretag's commitment to marriage with the applicant was not such "as to exclude the possibility of him sharing a life with his former wife at some stage in the future".

3. With respect I find myself unable to agree with such propositions. Although the Tribunal is not bound by the rules of evidence, its findings that are set out above were critical to the applicant's claim. Mr Bretag was questioned at length by a member of the Tribunal who had every opportunity to put these propositions to him. In fact, the subject was addressed in a sense when Mr Bretag was asked by the Tribunal member about his feelings on the day of the marriage. His evidence was:-
   

"... for me it was the real thing, and it was going to be forever, and I believe that Barbara felt the same way."

1. This passage from Mr Bretag was quoted in the Tribunal's reasons but without comment. Presumably, the Tribunal did not believe him having regard to their general observations about him, but rejection of an assertion by a witness does not prove the opposite. The "possibility" of Mr Bretag sharing a life with his former wife at some stage in the future did not arise on the evidence until a date subsequent to his marriage to the applicant when he contacted Leanne about access to the children. This contact led Leanne to broaching the subject of him returning to her. A review of the whole of Mr Bretag's evidence indicates that he said nothing to suggest that he had applied his mind, at the time of or immediately prior to his marriage to the applicant, to the possibility of him returning to Leanne.

2. Notwithstanding that he was an unsatisfactory witness, notwithstanding that the Tribunal was generally unimpressed with him, notwithstanding that any right thinking person would regard his conduct as outrageous, his willingness in March 1990 to return to Leanne can not without more, lead to a conclusion that the possibility of him so returning was a live issue at the time of his marriage to the applicant. It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE - 7 February 1990. But the evidence of the subsequent history is only relevant so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at p.160 per Deane J. It is true that the Tribunal only quantified a reunion between Mr Bretag and Leanne as a "possibility" at the time of his marriage to the applicant but, even so, "a possibility cannot be created by a mere flight of the imagination; the possibility that will suffice must be one which is 'real' only in the sense that it is not merely 'fanciful'." O'Brien v Repatriation Commission (1984) 53 ALR 477 at p.503 per Keely and Fitzgerald JJ.

3. In my opinion the Tribunal erred in law. It correctly identified the test that it had to apply, that is, the "Dhillon test", but having made that correct decision it erred in law by permitting itself to be influenced inappropriately by events that occurred subsequent to the events subsisting at the time of the application for the PEPAE.

4. The duty of the Tribunal was to assess the personal circumstances of the applicant and her husband as they existed at the time when the application for the PEPAE was made, that is, as at 7 February 1990. In terms of the "Dhillon test", the dominant question was this:- as at 7 February 1990, can it be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others. It was a misconception of the limited evidence on the subject of Mr Bretag's state of mind to draw an inference that his relationship to the applicant was not, on that date, either genuine or continuing. Indeed, I am constrained to say that the Tribunal misconceived the meaning of the phrase "to the exclusions of others..." by giving to it an unnecessarily literal meaning. History and literature are full of examples of long lasting and happy marriages which were formed in a variety of circumstances. Marriages of convenience, marriages of necessity and even some marriages which were preceded by an element of "duress" have withstood the tests of time. The motives of a marriage partner are none the less genuine and continuing even though his or her predilections may have led, in different circumstances, to another preferred path (or partner).

5. I have concluded that the Tribunal did not use subsequent events as an aid to determine the existence or non-existence of facts that were relevant to the issue (in the manner permitted by Pochi's case); rather, it permitted itself to be influenced inappropriately by the resumption of the relationship between Mr Bretag and Leanne some two months after his marriage to the applicant. It treated that resumption as determinative and assumed, despite the absence of evidence, that his willingness to return to his first wife must have meant that his marriage to the applicant was thereby flawed in the manner described by the Tribunal in its decision. The Tribunal therefore took an irrelevant consideration into account - and this constituted the making of the decision an improper exercise of a power: paragraph 5(1)(e) of the Administrative Decisions (Judicial Review) Act, 1977 ("the Act"). The Tribunal further erred in that in terms of paragraph 5(l)(h) of the same provision there was "no evidence or other material to justify the making of the decision".

6. At the conclusion of argument I informed the parties that I had reached a decision that this was a case that warranted the intervention of the Court and the making of orders within the ambit of s.16 of the Act. Discussion with counsel failed to resolve the nature of the orders that could or should be made. I accordingly adjourned the matter for further argument with the intimation that I would prepare and publish reasons as soon as possible; these reasons are published in pursuance of that intimation. I will, on the resumed hearing, hear further argument from counsel on all consequential matters.