Canete v Minister for Immigration
[2009] FMCA 1215
•11 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANETE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1215 |
| MIGRATION – Migration Review Tribunal – spouse visa – judicial review – whether mutual commitment to a shared life as husband and wife – whether relationship genuine and continuing – whether living separately and apart on a permanent basis – whether jurisdictional error. |
| Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15A, sch.2 cl.100.22 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 SZFNX v Minister for Immigration & Anor [2009] FMCA 1159 |
| Applicant: | EDMUND SEDANO CANETE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 171 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 7 December 2009 |
| Date of Last Submission: | 7 December 2009 |
| Delivered at: | Perth |
| Delivered on: | 11 December 2009 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Mr D Estrin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 171 of 2009
| EDMUND SEDANO CANETE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application seeking review under s.476 of the Migration Act 1958 (Cth)[1] of a decision[2] of the Migration Review Tribunal[3] affirming a decision of a delegate[4] of the first respondent[5] to refuse to grant Mr Canete a Spouse (Partner-Migrant) (Class BC) visa.[6]
[1] “Migration Act”.
[2] “Tribunal Decision”.
[3] “Tribunal”.
[4] “Delegate’s Decision”.
[5] “Minister”.
[6] “Spouse Visa”.
Background
The applicant, Mr Canete, is a 39 year old citizen of the Philippines, who applied for a Partner (Provisional) Class UF visa[7] on 29 April 2005 in the Philippines, having been sponsored by an Australian citizen, a Ms Arlene Wilson.[8] Mr Canete was refused a Provisional Spouse Visa by the Australian Embassy in Manila on 4 July 2005.[9] The application was remitted to the Department of Immigration and Citizenship[10] by a previous Tribunal.[11] As a result of this remittal, a delegate granted Mr Canete a Provisional Spouse Visa on 16 November 2007.[12] Shortly after this, on 10 December 2007, Mr Canete entered Australia on the Provisional Spouse Visa.[13]
[7] “Provisional Spouse Visa”.
[8] “Sponsor”.
[9] Court Book (“CB”) 43.
[10] “Department”.
[11] CB 48.
[12] CB 87.
[13] CB 124.
On 17 December 2007 the Department sent a letter to Mr Canete advising him that his Spouse Visa application had reached the final stage of processing and requested him to provide further information and documents.[14]
[14] CB 90.
On 10 March 2008 the Department sent an email to Mr Canete requesting that he contact the delegate about his Spouse Visa application.[15]
[15] CB 91.
On 13 March 2008 the Department sent a further letter to Mr Canete, requesting that he contact the delegate regarding his Spouse Visa application and that if he did not respond within 14 days, the Spouse Visa application may be refused.[16]
[16] CB 92.
On 26 March 2008, the Department received a letter from the Sponsor[17] indicating that she:
a)did not wish to continue with the sponsorship of Mr Canete’s Spouse Visa application; and
b)would like to “make it clear that the relationship between her and … [Mr Canete] had broken down, with no chance of reconciliation”.
[17] CB 107; “26 March 2008 Sponsor Letter”.
On 7 April 2008 the Department received an email from Mr Canete[18] advising that there had been a breakdown of the marriage and that the Sponsor had informed him that she did not love him any more.[19] Part of the poignant text of the 7 April 2008 Email is as follows:
“…i don’t know how to start but i felt lonely and stressed to what is a reality in our relationship (Arlene Canete or Wilson) almost four months ago when i arrived here in perth, i found out many things in differences. i make her suprise entry since my arrival but suddenly its not the way i spec-ting. i am here husband but she always go to her ex husband. i already inform her regarding this matter in many occasion but she did not reply i call her friend prycila to give us some advice she inform to spent holiday or vacation together so you could discuss the differences.
today she inform me that she don’t love me anymore i reply because of gary wilson she reply no one can replace gary in my hearth and i inform here why do you marry me instead answering she go.”[20]
[18] “7 April 2008 Email”.
[19] CB 97.
[20] CB 97. Transcribed without amendment.
On 8 April 2008 the Department sent a letter to Mr Canete acknowledging receipt of the 7 April 2008 Email, and a telephone call of the previous day, and suggested that he may wish to withdraw the Spouse Visa application.[21]
[21] CB 99.
The Delegate’s Decision on 21 April 2008 refused the Spouse Visa application on the basis that Mr Canete did not satisfy a prescribed criterion for the grant of a Spouse Visa.[22]
[22] CB 102-106.
Mr Canete, assisted by his registered migration agent, applied to the Tribunal on 25 June 2008 for review of the Delegate’s Decision.[23] Both Mr Canete and his migration agent appeared at the Tribunal hearing on 26 August 2009.[24]
[23] CB 108-115.
[24] CB 152-153.
The Tribunal Decision
The Tribunal set out the history of the matter and the evidence provided by Mr Canete in support, as well as the relevant law and policy to be applied.[25]
[25] CB 160-162.
The Tribunal observed that:
a)there is a two stage process for a Spouse Visa, in that an applicant must hold a Provisional Spouse Visa in order to be granted a permanent Spouse Visa; and
b)there is no time of application criteria for a Spouse Visa. The relevant criteria to be satisfied at the time of decision for a Spouse Visa are set out in sch.2 of the Migration Regulations 1994 (Cth)[26] at cl.100.22. Relevantly, except in situations where the sponsoring spouse has died, or there has been domestic violence, or there are legal obligations to a child, cl.100.22 required Mr Canete to be “the spouse of a sponsoring spouse” at the time of the Tribunal Decision.
[26] “Migration Regulations”.
The Tribunal found that the marriage was valid and at the time of the Tribunal Decision Mr Canete and the Sponsor remained married.[27]
[27] CB 163.
The Tribunal said that it “had regard to all the circumstances of the relationship, including evidence of the financial and social aspects and the nature of Mr Canete’s and the Sponsor’s household and their commitment to each other”.[28]
[28] CB 163.
The Tribunal noted that Mr Canete:
a)told the Tribunal that within the first week of his arrival in Australia he knew that the Sponsor did not want him here;
b)told the Tribunal hearing that his relationship “had ended” and that he had only lived with the Sponsor until June 2008; and
c)had provided no evidence relating to the financial and social aspects of his relationship.[29]
[29] CB 163.
The Tribunal held that Mr Canete did not satisfy the requirements of regs.1.15A(1A)(b)(i) and 1.15A(1A)(b)(ii) of the Migration Regulations[30] for a spousal relationship at the time of the Tribunal Decision namely, that it was not satisfied that Mr Canete and the Sponsor had:
a)a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
b)a relationship between them that is genuine and continuing.[31]
[30] As in force at the time of the application for the Provisional Spouse Visa.
[31] CB 163.
The Tribunal also found that as Mr Canete and his Sponsor were not living together Mr Canete did not satisfy reg.1.15A(1A)(b)(iii) of the Migration Regulations. On the above bases the Tribunal found that Mr Canete was not eligible for the grant of a Spouse Visa.[32]
[32] CB 163. There appears to be a superfluous “not” (“not living separately”) at para.37 of the Tribunal Decision, but this appears to be an error.
On 31 August 2009, the Tribunal Decision affirmed the Delegate’s Decision.[33]
[33] CB 159.
Grounds of application
Mr Canete filed an amended application[34] and supporting affidavit[35] on 13 November 2009. The 13 November 2009 Affidavit was not admitted into evidence as it:
a)reiterated factual matter before the Tribunal; and
b)sought to add to the factual material before the Tribunal, thereby seeking to have this Court impermissibly engage in merits review or to make factual findings as to merit issues.
Some of the information provided in Mr Canete’s written outline of submissions also sought to add to the factual material before the Tribunal and was not taken into account by this Court.
[34] “Amended Application”.
[35] “13 November 2009 Affidavit”.
The Amended Application does not specifically allege any jurisdictional error by the Tribunal. The Amended Application does however assert that Mr Canete is the holder of a Provisional Spouse Visa and is the spouse of the Sponsor, and that four years have passed since the application was made, which is more than the “two … year period as required by law.”
At the hearing before this Court, Mr Canete said that he was advised by his migration agent not to bring any documents to the Tribunal hearing. If that assertion be true, it does not assist Mr Canete, because the action taken by the migration agent, in the Court’s view, does not prove fraud on the Tribunal and, as has been observed by this Court in SZFNX v Minister for Immigration & Anor,[36] mere negligence or incompetence or a simple failure to inform is insufficient to support jurisdictional error.[37]
[36] [2009] FMCA 1159 (“SZFNX”).
[37] SZFNX at para.64 per Lucev FM, referring to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 207 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.53 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In the Amended Application and in oral submissions at the hearing before this Court, Mr Canete raised various irrelevant issues, including the fact that he is currently employed and that he can serve the public interest with his skills, experience and knowledge as an engineer. This information does not provide any grounds that the Court can take into account in determining whether or not the Tribunal Decision was affected by jurisdictional error.
The spouse provisions of the Migration Regulations
At the time of the Provisional Spouse Visa application, reg.1.15A(1) and (1A) of the Migration Regulations defined the term ‘spouse’ as follows:
(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.
At the time of the Provisional Spouse Visa application, reg.1.15A(3), (4) and (5) of the Migration Regulations set out the factors that must be taken into account when forming an opinion as to whether two persons were in a married relationship, as follows:
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ab) a Special Eligibility (Residence) (Class AO) visa; or
(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.
(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3)(ab), (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[38]
[38] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[39]
[39] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Consideration
Mr Canete’s own evidence, the 26 March 2008 Sponsor Letter and the 7 April 2008 Email demonstrated that the relationship between Mr Canete and the Sponsor had broken down irreconcilably. No further evidence of any aspects of relationship at the time of the Tribunal Decision was provided by Mr Canete.
As both Mr Canete and the Sponsor had advised that their relationship had ceased, the Tribunal had sufficient basis to arrive at the conclusion that Mr Canete and the Sponsor, at the time of the Tribunal Decision:
a)no longer had a mutual commitment to live as husband and wife; and
b)were no longer in a genuine and continuing spouse relationship.
There was also limited but sufficient evidence to allow the Tribunal to be satisfied that Mr Canete and the Sponsor did not live together or were living separately and apart at the time of the Tribunal Decision.
Mr Canete claims that he satisfies the criteria for the grant of a Spouse Visa because at the time of the Tribunal Decision, he had satisfied the requirements of “at least two years of a married relationship”. This contention is misguided. Clause 100.22 of sch.2 of the Migration Regulations requires Mr Canete to be “the spouse of a sponsoring spouse” (as “spouse” is defined in reg.1.15A of the Migration Regulations) at the time of the Tribunal Decision. For reasons set out above Mr Canete did not meet the definition of “spouse”. It is immaterial that Mr Canete may previously have been in a relationship that satisfied the requirements of reg.1.15A of the Migration Regulations.
Given the evidence available to the Tribunal, it is difficult to conceive of it having reached any conclusion other than the one reached to affirm the Delegate’s Decision. The Tribunal Decision displays no jurisdictional error. The Tribunal approached its task correctly, having regard to the evidence and the provisions of reg.1.15A of the Migration Regulations.
Conclusion
Mr Canete has not established jurisdictional error in the Tribunal Decision. The application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date: 11 December 2009
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