Cao v MIAC

Case [2007] FMCA 225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 225
MIGRATION – Migration Review Tribunal – partner visa – effect of sexual infidelity on mutual commitment to shared life as husband and wife to the exclusion of all others – whether open to the Tribunal to not be satisfied that the sponsorship had ceased – whether s359A letter adequately explained relevance of information – application dismissed.
Migration Act 1958, s.359A
Migration Regulations 1994, reg.1.15A, 1.20, Sch 2 cl.801.111, 801.221
Procedure and Advice Manual, schedule 2.801.2
Nguyen v Minister for Immigration & Anor [2006] FMCA 657
Re Minister for Immigration & Multicultural Affairs and Ors; Ex parte Holland (2001) 185 ALR 504
SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2
SZELAv Minister for Immigration & Anor [2005] FMCA 1068
Tran v Minister for Immigration & Multicultural Affairs (2003) 126 FCR 199
Applicant: THU HIEN CAO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: MLG 682 of 2006
Judgment of: Riley FM
Hearing date: 23 February 2007
Date of Last Submission: 23 February 2007
Delivered at: Melbourne
Delivered on: 21 March 2007

REPRESENTATION

Counsel for the Applicant: Mr Fernandez
Solicitors for the Applicant: T.A. Fernandez
Counsel for the First Respondent: Mr Wee
Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

  1. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration & Citizenship”.

  2. The application filed on 25 May 2006 be dismissed.

  3. The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 682 of 2006

THU HIEN CAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application filed on 25 May 2006 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated


    25 May 2006.  The decision affirmed a decision of a delegate of the first respondent refusing to grant the applicant a partner visa.

Background

  1. The applicant is a forty-three year old citizen of Vietnam.   She arrived in Australia on 10 April 2004 on a prospective marriage visa.  On


    15 April 2004, the applicant married Mr Van Huong Duong (“the sponsor”). 

  2. On 14 May 2004, the applicant lodged a combined visa application for a subclass 820 (temporary) and subclass 801 (permanent) partner visa.  On 18 May 2004, the applicant was granted a subclass 820 visa. 


    On 28 February 2005, a delegate on the first respondent refused to grant the applicant a subclass 801 visa. 

  3. On 15 March 2005, the applicant applied to the Tribunal for review of the decision of the delegate.  On 27 April 2006, the Tribunal handed down its decision affirming the decision of the delegate refusing to grant the applicant a partner visa.

  4. On 25 May 2006, an application for judicial review of the Tribunal’s decision was filed in this Court.  Contentions of fact…

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Details
AGLC
Cao v MIAC [2007] FMCA 225
Case
[2007] FMCA 225
Decision Date

CaseChat Overview and Summary

In the case of Cao v Minister for Immigration & Citizenship, the applicant, Cao, sought a visa under the subclass 801. The dispute centred around the satisfaction of the criteria set out in clause 801.221 of the Migration Regulations 1994. The applicant, Cao, was the holder of a Subclass 820 visa and was sponsored by her Australian citizen spouse. The primary issue for the court was whether Cao's relationship with her spouse met the regulatory definition of a "spouse" and if it was a genuine and continuing relationship, which would allow her to be granted the subclass 801 visa.

The court examined the nature of the relationship between Cao and her spouse, taking into account various aspects such as financial, household, social, and commitment factors. It was determined that while Cao and her spouse had been married, there were significant deficiencies in their relationship that did not meet the criteria for a genuine and continuing relationship. The court found that the relationship did not exhibit the necessary mutual commitment, financial integration, shared household responsibilities, or social representation of a genuine partnership. Consequently, the Minister was justified in refusing to grant Cao the subclass 801 visa.

The court ruled in favour of the Minister for Immigration & Citizenship, dismissing Cao's application for a subclass 801 visa. Additionally, the court ordered that the proceedings' title be amended to reflect the correct respondent, and Cao was required to pay the Minister's costs, fixed at $5,000. This decision underscored the stringent requirements for demonstrating a genuine relationship under the Migration Regulations.

Orders

Orders of the court

1.

The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration & Citizenship”.

2.

The application filed on 25 May 2006 be dismissed.

3.

The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The criteria for the grant of a subclass 801 visa are set out in clause 801.221 of the Migration Regulations 1994 (“the regulations”) which relevantly provides:801.221 – Criteria to be satisfied at the time of the decision(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). (2)An applicant meets the requirements of this subclause if: (a) the applicant is the holder of a Subclass 820 visa; and (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Spouse) visa by: (i) the sponsoring spouse; or (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and (c) the applicant is the spouse of the sponsoring spouse; and (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made. …(7) Nothing in paragraphs (2) (d) and (2A) (c) prevents the Minister, less than 2 years after the application is made: (a) refusing to grant a Subclass 801 visa; or … “Spouse” is relevantly defined in regulation 1.15A as follows: 1.15A Spouse (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: …(ae)a Partner (Provisional) (Class UF) visa; or …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.

Ratio Decidendi

Legal Principle Established

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