Cahyana, Surya v Minister for Immigration and Multicultural Affairs

[1998] FCA 390

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - review of decision of Immigration Review Tribunal - refusal to grant class 100 visa - definition of “marriage” for the purpose of Migration Regulations - whether visa applicant is defacto spouse of applicant.

Migration Act 1958 (Cth)
Migration (1993) Regulations (Cth) 1.3 and 1.6

Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court unreported, 8 May 1990), applied
Lynam v Director-General of Social Security (1984) 52 ALR 128, applied

SURYA CAHYANA v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 167 OF 1997

TAMBERLIN J
SYDNEY
15 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 167 of 1997

BETWEEN:	SURYA CAHYANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 APRIL 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The applicant is to pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 167 of 1997

BETWEEN:	SURYA CAHYANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Immigration Review Tribunal (“IRT”), affirming a decision refusing to grant a Class 100 (Spouse) visa to the visa applicant, Ms Tirtawidjaja.  In the notice of application, the applicant claims to be a person aggrieved.  The applicant and the visa applicant have a mutual commitment to a shared life together to the exclusion of others, and they have lived as a married couple or de facto couple since 13 December 1993, except for a period between September 1996 to the date of the application.  The applicant has been in Australia attempting to reverse the decision of a delegate of the Minister refusing the grant of a visa.

The grounds of the application are:

1.That the decision was an improper exercise of the power conferred by the Migration Act 1958 and the Migration Regulations.  The particulars are that the Tribunal failed to take into consideration that the applicant and the visa applicant were in a genuine, de facto, marital relationship and that there were exceptional circumstances why a lesser period of six months cohabitation was to apply in respect of when the application was filed.  The decision failed to take into account that they had a mutual commitment to a shared life together.

2.There was no evidence or other material to justify the making of the decision and the same particulars are relied on.

3.The decision involved an error of law, whether or not it appears on the record of the decision.  Again, the particulars are identical with those under 1. above.

The IRT, after setting out the relevant legislation and reviewing the evidence, found that at the date of the visa application, on 17 January 1994, the visa applicant did not come within the definition of spouse in reg 1.3 of the Migration (1993) Regulations (“the Regulations”).

Regulation 1.3 relevantly reads:

“(a)a person who has entered into a marriage recognised as valid for the purposes of the Act, if:

(i)a 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 fact spouse.”

The term “de facto” spouse is defined in Regulation 1.6 as follows:

“(1)For a person to qualify as the de facto spouse of another person, those persons must, at the time the relevant application is made:

(a)be living together as spouses in a genuine domestic relationship that has continued for:

(i)        the period of 6 months; or

(ii)a lesser period specified under subregulation (2);

immediately preceding the application; and

(b)      not be legally married to each other; and

(c)       be of opposite sexes; and

(d)      have both reached:

(i)the age of 16 years, if neither of them has an Australian domicile; or

(ii)       the age of 18 years, in any other case.

(2)On written application, the Minister may specify that a lesser period than 6 months is to apply under paragraph (1)(a) for the purposes of a particular application, if the Minister is satisfied that:

(a)there are exceptional circumstances affecting the persons to whom the particular application relates; and

(b)       there are compelling reasons for specifying that lesser period.”

Sub-division 100.33 of the Regulations refers to the criteria which must be satisfied at the time of the decision. It requires that the Minister be satisfied that the marital relationship between the applicant and the applicant’s spouse is “genuine and continuing”. It further requires that public interest criteria be satisfied. These relate to the health and character of the applicant and the need to satisfy the Minister that the applicant could obtain support in Australia from other members of the family unit.

The Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, 8 May 1990), found that the true test of whether a marriage is genuine 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.

The test must be applied with a due appreciation of the cultural context in which the marriage takes place.  In Lynam v Director-General of Social Security (1984) 52 ALR 128 at 131, Fitzgerald J pointed out that:

“... it is ... important that the departmental officers or tribunal charged with the task at least take into account what is the norm for the peer group of the applicant.  Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society.”

Having considered the evidence, the IRT, in the present case, was satisfied that the parties did not co-habit before the marriage ceremony in December 1993 and therefore did not satisfy the requirement that, as at the date of the visa application in January 1994, they had been together as husband and wife for six months.  The IRT was not satisfied under reg 1.6(2) that there were any exceptional circumstances or compelling reasons to justify a period of less than six months as the qualifying period.  In addition, the IRT noted that at the time of the ceremony in December 1993 the applicant was not legally divorced from his then wife.  Accepting, for the purposes of argument, that this may not have been a barrier to the recognition of the marriage as valid under Indonesian law, the IRT considered it was a barrier to the recognition of the marriage as valid under Australian law and that therefore the applicant could not be described as a person who has entered into a marriage recognised as valid for the purposes of the Act.

In the light of these findings the IRT directed that the applicant did not meet the criteria for the grant of a Class 100 visa.

On the hearing before me, the applicant re-emphasised the genuineness and closeness of his relationship with the visa applicant and his deep-seated concern that the IRT had not taken this matter into account.  He stressed the depth and extent of his emotional commitment to a shared life with the visa applicant.

It appears to me, that the gravamen of the complaint by the applicant is a concern with the merits of the matter and the weight given to the evidence by the IRT.  It is not the role of this Court to review the merits of the IRT decision.  Having examined the reasons for decision in the light of the material placed before me, I am not persuaded that the IRT has erred in any way in principle, law or in relation to the evidence in reaching its conclusion.  Accordingly, I dismiss the appeal with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             15 April 1998

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Miss R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 February 1998
Date of Judgment:	15 April 1998