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.

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.
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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bretag v IRT

Details

AGLC: Bretag, B.J. v. Immigration Review Tribunal & Anor [1991] FCA 755
Case: [1991] FCA 755
Decision Date: 29 NOVEMBER 1991

CaseChat Overview and Summary

In the matter of Bretag v IRT, the applicant, a citizen of South Africa, had entered Australia on a temporary visa. She subsequently married an Australian citizen, who applied on her behalf for a permanent entry permit under the spouse class. The Department of Home Affairs refused the application, but the matter was remitted to the Tribunal for reassessment. The Tribunal again refused the application, and the applicant sought review in the Federal Court.

The central issue before the court was whether the Tribunal had correctly applied the law in reassessing the application for the permanent entry permit. The applicant contended that the Tribunal had failed to have proper regard to the circumstances at the time of the application and had instead relied on subsequent events that had occurred after the application was made. The respondent, the Immigration Minister, argued that the Tribunal had correctly exercised its discretion and that it was entitled to consider subsequent events as an aid to its decision-making, provided it did not treat them as determinative in the absence of relevant evidence.

The court found that the Tribunal had indeed erred in its approach. The court noted that the primary consideration for the Tribunal was the circumstances at the time of the application and that subsequent events could only be used as an aid in the absence of relevant evidence. The court held that the Tribunal had placed undue emphasis on events that occurred after the application was made and had failed to give sufficient weight to the circumstances at the time of the application. The court further held that the Tribunal's decision was therefore flawed and remitted the matter back to the Tribunal for reconsideration.

The court ordered that the decision of the Tribunal be set aside and that the matter be remitted back to the Tribunal for reconsideration in accordance with the principles set out in the judgment. The court did not make any orders as to costs.

Orders