Ching v Minister for Immigration

[2005] FMCA 1131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHING v MINISTER FOR IMMIGRATION [2005] FMCA 1131

MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – application for Partner (Temporary) (Class UK) Visa – whether jurisdictional error arising from consideration of questions as to whether compelling reasons existed for not meeting Schedule 3 criteria.

Migration Act 1958 (Cth), ss.483A, 39B
Judiciary Act 1903 (Cth)

Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476
MIMIA v Epeabaka [1999] FCA 1
Minister for Immigratin;  Ex parte Cohen (2001) 75 ALJR 542
MIMA v Yusuf (2001) 180 ALR 1

Applicant: MANISHUK TEHSHIN CHING

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: ADG 65 of 2005

Delivered on: 15 August 2005

Delivered at: Adelaide

Hearing date: 1 June 2005

Judgment of: Lindsay FM

REPRESENTATION

Counsel for the Applicant: Mr Clisby

Solicitors for the Applicant: Mark Clisby

Counsel for the Respondent: Mr Roder

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That a writ of certiorari issue directed to the Migration Review Tribunal removing the record of the Tribunal into this Court for the purposes of quashing it.

2. That a writ of mandamus issue directed to the Migration Review Tribunal requiring the Tribunal to re-determine the application for review of the Delegate’s decision, according to the law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 65 of 2005

MANISHUK TEHSHIN CHING

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an Application under s.483A of the Migration Act 1958 (Cth) (“the Act”).

2. Under s.483A this Court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in relation to matters such as the present is the jurisdiction under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Pt 8 of the Act. As interpreted in Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 those limitations require this Court to identify jurisdictional error in the proceedings or reasons of the Tribunal before the Court has the power to set aside the Tribunal decision and remit the matter for re-hearing.

3. The parties agree that the applicant, both before the delegate of the Minister and before the Migration Review Tribunal, was seeking the grant of a Partner (Temporary) (Class UK) visa, also known as a Subclass 820 – Spouse visa.

4. Part 820 of Sch 2 to the Regulations made under the Act, and in particular, Pt 820.211 specify the criteria which are to be satisfied at the time of application.

5. The meaning of the expression “spouse” is dealt with in reg 1.15A.

6. Returning to the criteria, Pt 820.211(2)(d)(ii) provides that in the case of an applicant who does not hold a substantive visa, the applicant must satisfy the criteria described as 3001, 3003 and 3004 in Sch 3 to the Regulations.

7. Again, it was agreed by the parties that from 2 April 2000 the applicant was not the holder of a substantive visa.  Until he lodged his application for a spouse visa in July 2002, he was unlawfully in Australia.

8. The way in which the Sch 3 criteria apply is capable of generating confusion.  The applicant must satisfy “Sch 3 criteria 3001, 3003 and 3004” unless the Minister is satisfied that there are compelling reasons for not applying those criteria.  The reference is to all three of the criteria.  But it must be taken to mean such of the three criteria as are applicable to the applicant.  Criterion 3003 cannot ever apply to the applicant, for example, because he did not hold a substantive visa on or after 1 September 2004.  Criteria 3001 and 3004 both appear to be applicable.  So, if he cannot satisfy the criteria of either, the Tribunal will need to find compelling reasons for not applying them.

9. The Tribunal found, at par 44 of its Reasons [CB 144] that as the application was made more than 28 days after the substantive visa expired, the applicant could not satisfy criterion 3001, and that therefore the remaining Sch 3 criteria, did not apply.  It then embarked on the compelling reasons exercise.

10. I am not convinced that is necessarily the correct approach.  Before determining whether compelling reasons exist for not applying criteria, it will surely be relevant to determine why and in what way or circumstances the criteria do not apply.  If, as here, two or more of the criteria are capable of applying to the applicant, then the reasons why each of the relevant criteria do not apply need to be explored.

11. I do not consider that anything turns on this in the context of this case.  Firstly, no complaint about this aspect is made by the applicant through his counsel as to this aspect.  Secondly, criterion 3004 would not be satisfied by the applicant because we know that his failure to maintain a substantive visa was not remotely on account of factors beyond his control, when his evidence on this topic before the Tribunal is borne in mind.  It is perhaps just as well that criterion 3004 was not the only criterion in Sch 3 capable of applying to the applicant which was not satisfied, for otherwise the Tribunal would have had to consider whether compelling reasons for not applying a criteria that there are compelling reasons for not granting the visa existed (see criteria 3004(d)).  That would have been an exercise of rare difficulty even in the context of these textually dense Regulations.

12. There was no ambiguity about the presentation of the applicant’s case before the Tribunal.  It was that he and his nominator spouse had been living together in a de facto spousal relationship since March 2000.  That was his evidence and the evidence of the nominator and her mother.

13. This was also the applicant’s case before the delegate.

14. The Tribunal correctly identified its first task as being a determination as to whether the Sch 3 criteria could be said not to apply on account of compelling reasons [par 44, CB p 144].

15. The Tribunal had to determine whether, on the applicant’s case, compelling reasons for not applying the criteria existed.  If they did, the application would then be considered having regard to whether the circumstances of the relationship amounted to a spouse – a de facto spouse – relationship in terms of reg 1.15A (2).

16. I pause here to consider whether the “compelling reasons” issue was properly an issue that should be determined anterior to the broader issue as to whether the relationship satisfied the definition of spouse in the Regulations.  I think I should do this because the application of the facts to that definition featured so prominently in the prosecution of the applicant’s argument before me.

1. Regulation 1.15A(2) provides:

   “(2)     Persons are in a de facto relationship if:

   (a)     they:

   (i)     are of opposite sexes;  and

   (ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and

   (iii)are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and

   (b)       they are of full age, that is:

   (i)if either of the persons is domiciled in Australia – both of them have turned 18;  or

   (ii)if neither of the persons is domiciled in Australia – both of them have turned 16;  and

   (c)     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;  and

   (d)subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UP) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:

   (i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others;  and

   (ii)the relationship between them was genuine and continuing;  and

   (iii)   they had:

   (A)    been living together;  and

   (B)not been living separately and apart on a permanent basis;  and

   (e)     where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa – the Minister is          satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997:

   (i)     they had a mutual commitment to a shared life    as husband and wife to the exclusion of all others;  and

   (ii)    the relationship between them was genuine and   continuing;  and

   (iii)   they had

   (A)been living together;  or

   (B) do not live separately and apart on a permanent basis”.

2. It would appear that reg 1.15A(2)(d) is applicable.  Thus the requirements of (a), (b) and (c) all apply but there is the additional requirement that those factors must have existed for 12 months preceding the date of filing of the application.  That is subject to reg (2A) which enables the requirements of (d) – but not of (a), (b) and (c) – to be dispensed with, if the applicant can establish “compelling and compassionate circumstances”.

3. Regulation 1.15A(3) provides:

   “(3)     In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

   (aa)[repealed]

   (ab)     a Special Eligibility (Residence) (Class AO) visa;  or

   (ac)     [repealed]

   (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

   whether one party to the relationship owes any   legal obligation in respect of the other;  and

   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. Regulation 1.15A(4) does not apply to a case involving this class of visa.

5. Regulation 1.15A(5) provides:

   “(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”.

6. The provisions of the sub-reg (2A) do not appear to have been specifically considered by the Tribunal or the delegate but I do not think anything turns on that.  The applicant was contending that the period of living together was well over the 12 months referred to in that sub-regulation in any event.

7. Clearly, no purpose would be served in a detailed consideration of whether the relationship between the applicant and the nominator amounts to a spousal relationship if, in any event, the Sch 3 criteria cannot be met.  Logically, it would follow that the Sch 3 exercise be conducted first.  That is what the Tribunal appears to have done.  All that the Tribunal say about this applicant’s case must be seen in this light.  The task the Tribunal sets itself at the outset is to see whether compelling reasons exist not to apply the Sch 3 criteria.  Ultimately, that issue is resolved unfavourably to the applicant.  The reg 1.15A exercise is never undertaken in itself.  The Tribunal does not reach the stage where it is necessary to embark upon that process.

8. At par 57 (CB 147) of its Reasons, the Tribunal states:

   “As stated elsewhere the Tribunal is satisfied on the evidence before it that the review applicant and the nominator have been in a relationship since 1999 and that they intend to marry as soon as the nominator completes her studies.  They are known to each others family and friends and the Tribunal accepts that they have a strong emotional commitment to each other.  However as the Tribunal has found that the relationship between the review applicant and the nominator was not a spousal relationship in March 2000 the Tribunal has no choice but to affirm the decision of the delegate”.

9. That is a curious paragraph, following as it does the critical determination at par 56 that the Sch 3 criteria were not met.  It is a completely unnecessary set of observations.  The Tribunal has not been considering whether or not the relationship between the applicant and the nominator was a spousal relationship, at the earlier stages of the Reasons.  It was unnecessary for it so to do.  Its inclusion may help to explain the focus of the applicant before me on what is alleged is the error into which the Tribunal fell in considering that “living together” was a necessary pre-requisite of a spousal relationship.

10. As it happens, I do not think a reading of the Reasons or of the transcript bears that contention out.  The Tribunal was aware that it was enough, other criteria being satisfied, that they had not been living separately and apart on a permanent basis.  The following passage from p 33 and p 34 of the transcript made that clear:

TM	Alright.  But it has to be a type of relationship that is like a married like relationship so you have to have a mutual commitment to a joint life together as husband and wife.  And it’s really hard why people use the living together, why they put so much emphasis on that is because if you’re not living together it’s a bit harder to show that you’ve got that commitment.  It doesn’t mean that if you’re not living together that you don’s have that commitment.  Do you understand what I mean?
N	Yes.
TM	It’s just a bit harder to show it.  Ok.  So if you’re living with your parents and going and staying with him that doesn’t mean that you’re not in a genuine relationship with him it’s just about the degree of commitment and how you show that commitment.  That’s the hard part.  Do you understand what I’m saying?

1. But in any event, the consideration of the nature of the relationship goes only and, given the way the Tribunal, proceeded, could go only to the compelling reasons exercise.

2. In order to decide whether compelling reasons existed the Tribunal had to evaluate the case presented before it.  That was a case that the two had lived together in a spousal relationship since March 2000.  No purpose would be served, so it is said by the respondent, in assessing the compelling reasons argument against an hypothesised case of persons not living together.  But given the Tribunal’s findings, discussed further hereunder, I do not think it was a hypothetical case.

3. The Tribunal disbelieved the applicant and the nominator (and the nominator’s mother and, presumably, her father who gave a statutory declaration) on the topic of the case they promoted as to the relationship.  Looking at what was available to it, that was hardly surprising.  The delegate had reported that the nominator had resiled altogether from the suggestion that the couple were living together when before him.  The nominator offered an incredible explanation for the delegate accounts of her change of story (see par 48 of the Reasons, CB p 145).  The applicant’s own account of the nominator’s change of story lacks coherence (see p 11 of the transcript).  Furthermore, there was a paucity of documentary corroboration (see par 51 of the Reasons, CB p 146).  On the case the applicant advanced, one would expect there to have been material available to evidence an intermingling of finances and shared responsibilities.  The applicant did not think that even with a further opportunity to present same, he would be able to produce any further material of relevance (transcript, p 22).

4. I should note that the applicant denied that, before the delegate, he had agreed with the nominator, that they had never lived together.  He said that he agreed that they did not always live together, that being his characterisation of the nominator’s eventual position before the delegate.  The delegate’s decision (CB p 74) and typed Summary of Interview (CB p 71) both contain this admission but it is absent from the handwritten record kept by the delegate which presumably was the more contemporaneous (exhibit 1).  That is, the nominator’s account is set out but the adoption of that account by the applicant is missing.

5. So the factual recitation set out at par 26 of the Reasons may not be capable of being put with the lack of ambiguity shown there but I do not think this matter is of great moment.  It was the nominator’s account before the delegate and her inability to explain it satisfactorily that weighed with the Tribunal and properly so, in my view (see p 28 – p 29 of the transcript).

6. So, the Tribunal found itself unable to accept the applicant and nominator’s account of their relationship and in those circumstances was not prepared to find that compelling circumstances did not exist for applying the Sch 3 criteria.

7. Now, that finding did not necessarily entail any finding as to whether or not the applicant and nominator were living in a spousal relationship in terms of reg 1.15A.  It was a finding about the applicant’s case as to his relationship and whether it warranted waiver of the Sch 3 criteria.  But the Tribunal went further than this, as we have noted.  Despite finding that the parties have a strong emotional commitment, that they intend to marry when the nominator completes her studies and that the relationship is ostensibly (and by implication from the Reasons) actually genuine, the Tribunal states (par 52, CB 146):

   “However, the Tribunal is not satisfied that the nature of the relationship is a spousal relationship as that term is defined in Regulation 1.15A”.

   Then, at par 55 (CB 146):

   “There is no evidence that indicates that the relationship was a spousal relationship as early as March 2000”.

   Finally, at par 57 (CB 147):

   “However, as the Tribunal has found that the relationship between the review applicant and the nominator was not a spousal relationship in March 2000 the Tribunal has no choice but to affirm the decision of the delegate”.

8. I must say that these passages indicate some confusion on the part of the Tribunal as to the test to be applied.  The Tribunal appears to find that the compelling reasons argument stands or falls on the question of lack of co-habitation and, on at least two occasions in the Reasons, lack of co-habitation as at March 2000.

1. Rejection of the applicant’s case, as we have seen, still left a series of findings indicative of some of the features of a spousal relationship, except, perhaps, the negative requirement of reg 1.15A(2)(e)(iii)B that the applicant and the nominator had not been living separately and apart on a permanent basis.

2. On that latter question, the Tribunal did not come to any clear finding.  I bear in mind that it did not, strictly speaking, have to come to such a finding.  Nevertheless, the way in which the Tribunal has expressed itself or on these matters causes me to have significant concerns as to its process of reasoning.  It is one thing to reject the applicant’s case on the nature of the relationship and hold that such means that compelling reasons are not made out and the Sch 3 criteria must be applied.  It is another thing to say that the rejection of the applicant’s case on the nature of the relationship means that the spouse relationship criteria under reg 1.15A are not made out and that therefore compelling reasons are not made out.

3. At the end of a careful consideration of the matters, I am unable to say which of the two processes the Tribunal engaged in, though the language of par 57 inclines me to think the latter.  If so, the Tribunal has introduced into its consideration of the compelling reasons exercise a factor not warranted by logic or by consideration of the relevant regulatory provisions.  Compelling reasons might well be found to exist in situations where parties either live together or do not live separately and apart on a permanent basis (or might be found not to exist in either case).  If the Tribunal thought that some other aspect of reg 1.15A, other than living together, was relevant to the compelling reasons exercise, it did not say so.

4. The provisions of reg 1.15A may or may not be determinative of the compelling reasons exercise, but once the Tribunal decides to embark upon a process of measuring up the relationship promoted against these provisions, it must surely measure them up against all and not merely some or even most of them.

5. Does this manner of proceeding as it did amount to a jurisdictional error?  I think it does.  The applicant was entitled to have the Tribunal consider whether or not compelling reasons existed for not complying with the Sch 3 criteria.  It was clearly an important part of that exercise to consider the nature of the relationship between the applicant and nominator.  In doing so, the Tribunal adopted the reg 1.15A criteria for determining whether a spousal relationship existed.  It did not have to do that but it did.  Having embarked upon that exercise it had to consider all of the relevant parts of the Regulation.  It did not. 

   
   

   It looked at cohabitation and deemed its absence – especially and even exclusively at March 2000 – as determinative.  It had no reason to do so.  It was illogical in my view to proceed in that way.

6. As the Full Court of the Federal Court said in MIMIA v Epeabaka [1999] FCA 1 at [25].

   “… although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn.  Likewise, want of logic might in some cases also sound a warning to put one on inquiry whether there was only a purported, and not a real, exercise of functions entrusted to the decision-maker …”.

7. It was for the Tribunal to determine whether compelling reasons not to apply the Sch 3 criteria existed.  That was a factual finding but a factual finding arising from the application of appropriate criteria.  As the High Court said in Minister for Immigration; Ex parte Cohen (2001) 75 ALJR 542, at ‘36] and [37]:

   “Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law.  A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact.  Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

   If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide.  But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings.  Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty”.

8. Bearing in mind that important stricture, it remains the case that the Tribunal had no basis for determining the compelling reasons exercise on the basis that it did.  It posed an entirely unauthorised threshold question – that relating to cohabitation – and treated the answer it gave itself as determinative of the issue.  The jurisdictional error was partly illogicality and partly taking into account irrelevant criteria.  The two overlap.  As the High Court (per McHugh, Gummow and Hayne JJ) observed in MIMA v Yusuf (2001) 180 ALR 1 at [82]:

   “Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law”.

9. In the light of the foregoing, it is unnecessary for me to consider the applicant’s case as it related to actual and apparent bias on the part of the Tribunal.

10. I make the orders set out at the commencement of these Reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: 

Date: