Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1044
•17 SEPTEMBER 2003
FEDERAL COURT OF AUSTRALIA
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
FANG WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR
N 637 of 2003ALLSOP J
17 SEPTEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 637 of 2003
BETWEEN:
FANG WANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTTHE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
17 SEPTEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.A writ of certiorari removing into this court to be quashed the decision of the Migration Review Tribunal of the Commonwealth of Australia (the Tribunal) made at Sydney on 14 May 2003 affirming a decision of the delegate of the first respondent Minister to reject the applicant's spouse’s application for a subclass 309 visa.
2.A declaration that the said purported decision of the Tribunal is not a "privative clause decision" as defined in subs 474(2) of the Migration Act, 1958 (Cth) being made in excess of jurisdiction.
3.The matter be remitted to the Tribunal to be dealt with according to law.
4.The first respondent pay the applicant'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
N 637 of 2003
BETWEEN:
FANG WANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTTHE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT
JUDGE:
ALLSOP J
DATE:
17 SEPTEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this matter the applicant seeks to challenge the decision of the Migration Review Tribunal (the Tribunal) that his spouse is not entitled to a subclass 309 visa. The grounds of review are stated in an amended application which I granted leave to file in Court this morning under s 39B of the Judiciary Act 1903 (Cth).
The applicant, who is 44 years of age, was originally a Chinese national. He came to Australia on 31 January 1990 on a student visa. He apparently was subsequently granted a series of visas that permitted him lawfully to live and work in this country. On 16 November 1999 he was granted a Subclass 850 (Temporary) Visa pending the determination of an application for a Subclass 851 (Permanent) Visa. On 14 August 2000 he was granted a Subclass 851 (Resolution of Status) Visa. This gave him permanent residence. The criterion for the grant of this visa was that at the time of the application the applicant must have been within Australia for periods totalling 10 of the 12 years since his first arrival. As at 14 August 2000 the applicant had not left Australia since his arrival although, in 2001, he visited China.
The applicant has, and had at the time in 2000 and from 1990, a family in China. He had married Shen Dangying who is 42 years of age, in Hangzhou on 15 January 1986. A daughter was born of the marriage, Wang Ying, on 30 June 1987. As I indicated, the applicant Mr Fang Wang came to Australia in 1990. On or about 30 December 2000 the applicant applied to sponsor his wife and daughter to Australia. The application was for a Subclass 309 Spouse (Provisional) Visa. That application was rejected by a delegate of the Minister in Shanghai on 21 September 2001.
The delegate appears to have erroneously concluded that the application was for a Subclass 100 Visa. In due course the matter was dealt with by the Tribunal. This error was corrected and nothing turns on it. Having had his application to sponsor his wife and daughter rejected by the delegate, the applicant applied to the Tribunal for a review of the delegate's decision. He was able to produce, amongst other things, a number of statements from people in China and relatives in the United States which concerned the commitment of the couple to each other and their communications with each other. He was also able to produce to the Tribunal copies of correspondence and some documentation to establish that he had sent money to his family in China. The Tribunal concluded at [43] and [44] of its reasons as follows:
[43]The Tribunal has considered all of the circumstances of the relationship. Some evidence in this case supports a finding that the parties are in a genuine spousal relationship. This evidence includes the evidence of money transfers from the review applicant to the visa applicant, the fact that the visa applicant lives with the review applicant’s parents and the child of the relationship and the fact that the review applicant has previously attempted to sponsor the visa applicant. However, the Tribunal finds that this evidence is outweighed by the other factors which indicate that the parties are not in a genuine spousal relationship: their long period of physical separation through choice rather than circumstances beyond their control, the limited evidence of contact between them and the lack of emotional support and commitment between them.
[44]On all of the evidence before it, the Tribunal is not satisfied, either at time of application or time of decision, that the review applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them is genuine and continuing. The Tribunal is not satisfied that the parties would live together as husband and wife. The Tribunal considers that the parties are living separately and apart on a permanent basis.
The statutory context is as set out in [8] and [9] of the applicant’s submissions as follows:
[8]The Migration Regs, sch 2 Part 309 states, as relevant to the current application,
309.21Criteria to be satisfied at the time of application
309.211(1)the applicant meets the requirements of sub clause (2) or (3).
(2)the applicant meets the requirements of this sub clause if the applicant is the spouse of,
(a) an Australian citizen,
(b) an Australian permanent resident;…
[9]A threshold question is therefore whether the visa applicant was a “spouse” of the sponsor. The term “spouse” is defined in Reg 1.15A, which says, as relevant,
(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;
…
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.
Central to the application is the necessity to understand the ultimate issues contained within reg 1.15A(1A)(b)(i) and (ii). There is no suggestion of the failure to meet subreg (1A)(b)(iii). It is also central to understand the imperative of subreg (3). That is that the matters set out in paras (a) through (d) are inclusive matters but compulsorily inclusive as equally are all the circumstances of the relationship of the parties.
The ascertainment of what is a circumstance of the relationship of the parties will depend upon (a) the material before the decision-maker, (b) a factual question or questions as to what that material throws up as a "circumstance of the relationship", and (c) the objective conclusion as to what the circumstances of the relationship are, not merely the underlying Tribunal's view of whether something is a circumstance or not.
It should be noted, of course, that the weight to be given to any particular circumstance will, generally speaking, be a matter for the Tribunal, though subject to ordinary administrative law review. The amended application filed on behalf of the applicant states the following grounds:
[Grounds of amended application]
1.The second respondent committed jurisdictional errors of law in failing to take into account relevant considerations, being
(a) The continuity of the relationship between the applicant and his spouse,
(b) The best interests of the child of the relationship.(c) The matters in Migration Regulation 1.15A(3)(c)(i)&(ii).
2.The second respondent committed jurisdictional error of law
by asking itself the wrong questionby failing to identify the correct issue in seeking to apply Migration Regulation 1.15A,Particulars
(a)The second respondent effectively asked itself whether the commitment of the applicant to his spouse superceded all other commitments in his life. This is a requirement that goes beyond that mandated by Migration Regulation 1.15A.(b)The second respondent considered that the factors set out in Migration Regulation 1.15A(3) relate to all the circumstances of a marital relationship, and so considered that only those factors were required to be taken into account. It was in fact required to consider all the circumstances of the relationship including those in Reg 1.15A(3).
3.The second respondent committed jurisdictional error of law by breaching its duty to accord procedural fairness to the applicant.Particulars(c) The second respondent was obliged to inform the applicant if it did not intend to act in accordance with article 3 of the Convention on the Rights of the Child, so that the applicant could respond. It failed to do this.Before turning to the substantive arguments put to me by Mr Karp, who appeared for the applicant, I should note that one way of putting the matter in the amended application was substantially resiled from in argument. That matter was that set out in par 2 of the amended application. The argument had been that in [12] of its reasons the Tribunal had misdirected itself. In [12] the Tribunal stated as follows:
[12]In forming an opinion on whether two persons are in a married relationship, a decision-maker must have regard to the considerations set out in subregulation 1.15(3)… These considerations relate to all the circumstances of the relationship, including in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.
In my view, and in substance it was accepted by Mr Karp, [12] is an attempt to summarise the obligation contained within subreg 1.15A(3). I do not read the statement of task as exclusively being limited to subpars (a) through to (d) in subreg (3). There is at least a stated recognition of the need to examine and have regard to all of the circumstances of the relationship.
The other arguments of Mr Karp were as follows:
a)The Tribunal failed to consider a circumstance of the relationship of the applicant and his wife over their years of separation, that is, on the material, the fidelity of each to the other.
b)The Tribunal failed to take into account the continuity of contact in assessing the continuity of the relationship.
c)The Tribunal failed to take into account material going to subreg 1.15A(3)(c)(i) and (ii).
Turning first to the second of those arguments, I do not think, on reading the Tribunal's reasons, that it is correct to say that there was a failure to take into account the subject matter of the continuity of contact. There may have been, for the reasons which I will explain, a failure to advert to material and give appropriate weight to material which dealt with that subject matter, but I do not think that it can be said that the question of the continuity of the relationship, in particular as thrown up by subreg 1.15A(1)(b)(ii) was ignored.
Turning to the other arguments, it is common ground between the parties that the question of the fidelity of the applicant to his wife and she to him or the material dealing with those matters was not the subject of express reference or express consideration by the Tribunal. I bear in mind, and closely so, what was said by the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2.
Without wishing in any way to presume to put a gloss on what the High Court said, I think it is a fair summary of it to say that a beneficial construction should be given to the way Tribunals such as the Tribunal here express themselves, and a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying.
Beneficial construction does not mean that the words are construed as meaning something other than what they, in a plain and commonsense way, must be intended to mean. It is the combing through of the reasons with a finely attuned antenna for error that is impermissible.
A number of the justices of the High Court, including the Chief Justice, made plain in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 that it may well be, given a certain body of reasons, that if a Tribunal does not refer to something it can be concluded that it was not taken into account. That is not always the case when a Tribunal expresses itself shortly and succinctly having broached all the relevant subject matter.
A beneficial reading of a given set of reasons may well enable one to conclude that matters were taken into account if the structure of the reasons although not the express words make that clear. Here, if I may respectfully put it, the Tribunal in large part attempted to be precise and complete. It did not refer to the material which went to the fidelity of the parties to each other in their long period of mutual separation. I conclude that it was not taken into account.
It was put on behalf of the Minister by Ms Henderson that this was not a statute or a body of regulations dealing with fidelity. I think one can readily accept that to be the case, but I do not think it can be denied that in a relationship of husband and wife where the husband has left the homeland to come to a new country, in assessing whether or not the two remain in a relationship characterised by the matters in subreg 1.15A(1A) that the fact that they have remained faithful to each other is a circumstance of their then relationship. It may not be conclusive, it may be something that needs to be weighed, it may have certain reasons for it, but in my view, if I may say so with respect, on any commonsense view of the words, it cannot be gainsaid that mutual fidelity is a circumstance of the relationship between two married people separated by space and time.
Bearing in mind the words of subreg (3), the material going to the fidelity of the parties to each other was material going to a circumstance of the relationship and for that reason was material which, entirely conformably with the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24, was material which was compulsory to take into account. It is not a body of regulations about fidelity. It is a body of regulations about the circumstances of the relationship. Fidelity is one such circumstance.
An explanation as to why it was not taken into account is perhaps unnecessary, but one is clear to me on the papers and it reinforces my view that reading the reasons as a whole in a commonsense way, that matter was not the subject of consideration.
The explanation is as follows. There were 12 pieces of correspondence to which I will come shortly, some of which dealt with the question of fidelity. The Tribunal dealt with that correspondence at [36] of its reasons. Paragraph 36 of the reasons was under a heading "The Social Aspects Of The Relationship". It is plain that at this part of its reasons the Tribunal was dealing with the subject matters referred to in subreg 1.15A(3)(c), so there is no doubt that the general subject matter there identified was being sought to be addressed. In that context the Tribunal said the following at [35] and [36]:
[35]There is no evidence before the Tribunal that the parties have undertaken joint social activities together at time of application and decision, as they have only spent three weeks together in the last 13 years. There is no evidence, other than a few cards, that the parties celebrate significant events such as birthdays or other holidays. The visa applicant’s own evidence is that he does not send gifts to his wife or daughter.
[36]Several statutory declarations from family and friends supporting the relationship are before the Tribunal. The Tribunal gives these documents little weight. Most of the statutory declarations only state that the parties are married and that the visa applicant lives with the review applicant’s parents, facts which are not in dispute. The statements do not comment on the nature of the spousal relationship between the parties and were written by persons who have not had the opportunity to observe the parties together after 1990.
Again, bearing in mind the injunction of the majority of the High Court in Wu Shan Liang, I read [36] as a clear, straightforward and admirably short statement by the Tribunal that it gave the material there described, the statutory declarations from family and friends, little weight for the reasons it thereafter identified.
For the reasons I am about to explain, those matters in [36] were incorrect to a substantial degree. I will explain in due course my view and the reasons for my view why these errors do not lie unreviewable as mere errors of fact. I first need to examine the statutory declarations from family and friends.
Each should be examined in the light of what the Tribunal, using plain English, said about it. First it said that most of the statutory declarations only state that the parties are married and that the visa applicant (that is the wife) lives with the applicant's (the husband's) parents. These facts were said not to be in dispute. The second reason was that the statements do not comment on the nature of the spousal relationship between the parties. The third reason was that the statements were written by persons who have not had the opportunity to observe the parties together after 1990. These reasons of course can be seen as both separate and interrelated and I do not seek to, by breaking them up, affect the interrelationship that each may have with the other.
Turning to the statutory declarations that were given “little weight” for these reasons. The first was a document from the sister of the husband applicant. She lives and lived in October 2001 at the time of the document in the United States. She said that she knew personally that "Fang loves his wife, Dung Yin Shun, and his daughter Yin Wang".
The sister then also described the communications between husband and wife over the phone from time to time before and after 1996. She explains various matters about telephone systems from China to Australia and the United States. She said that from 1996 to 2001 she "intermediated" their phone communications approximately every other month.
This document did not only state that the parties were married and that the wife lived with the applicant's parents. This document did comment on the nature of the relationship. The sister of the applicant said that she knew personally that the applicant loved his wife. That is a comment on the nature of a spousal relationship. It was correct to say that the sister had not had the opportunity to observe the parties together after 1990; but, this was material which not only went to (1A)(b)(i) and (ii) but specifically went to a circumstance of the relationship, that is the love of the husband for his wife and child, and subject to an argument which I will deal with below, is an opinion about the nature of the relationship for the purposes of (3)(c)(ii). The argument with which I will deal in due course is whether as a sister of the applicant this person can be said to be a "friend or acquaintance".
The next document was a letter from the younger brother of the applicant. This brother lives in Texas in the United States. He left China in 1989 to pursue his post-graduate studies. His statement speaks of being present at the marriage of his brother and his wife. He then offers an opinion that "they are always a happy couple". He then describes his sister-in-law (the applicant's wife) living with his (and the applicant's) parents. He then describes the body of communication over the years between him, his brother, his sister-in-law and his parents. Though not directed specifically to the observance of happiness of either the applicant or his wife, the paragraph (being the third paragraph) directs itself to the general familial communications. In the next paragraph the younger brother says as follows:
In the last 11 years (the document being written in October 2001) I have kept close contacts [sic] with my brother and his wife. I am proud to say that my brother and my sister-in-law have such a wonderful relations [sic]. There is nothing else one can expect from a marriage through such a hard time when they could not be together physically for so long. I can say the distance is never able to separate the love souls for a single day. They all know what they scarified [sic – sacrificed] is for the brighter future of their family and child.
This document was not merely about the fact of the marriage and where the wife lived. This statement did contain a comment on the nature of the spousal relationship. The paragraph I have quoted could be seen as nothing other than a comment on the affection and warmth which this person (the brother) perceived to lie between his brother and the wife. The statement was written by someone who had not had the opportunity to physically observe the parties after 1990 but it would be irrational and capricious if one were to conclude that a body of contact with close relations could not give the basis for some opinion as to how they view each other. The viewing of physical manifestations of affection is not the only way in which a human can express an opinion about the relationship of others.
The next document was a joint document of Wang Fang's parents. It contains the following:
They love each other deeply. We are very happy to see that.
This is said in a document by the father and mother of the applicant, with whom the wife has been living for over ten years. It is not merely a document evidencing the marriage of the parties and the fact of the wife living with the parents. It is a statement which comments on the nature of the spousal relationship. Thirdly, it is written by people who did in fact have the opportunity to observe the parties together after 1990. The applicant husband went to China for a period of nearly three weeks in 2001 and apparently lived with his wife at his parents home.
In relation to both the document of the younger brother and the parents to which I have just referred the question of the construction of (3)(c)(ii) arises as to "friends and acquaintances". However, each of those documents contains material directly bearing upon the circumstances of the relationship, the mutual commitment to a shared life and the genuineness and continuing relationship as well as the nature of the relationship, all matters compulsorily required for consideration by the terms of the regulation.
The next document was not from a family member. It came from one Zhang Shao Qiang. He is a permanent resident of Australia. He is a butcher from Narrabeen. He has known the applicant for 11 years and has said that the applicant is one of his closest friends in Australia. He undoubtedly is a friend or acquaintance for the purposes of (3)(c)(ii). His statutory declaration talks of communication between the applicant and his wife and family in China. It states that he has never had any other female partner in Australia, that he has never even had a girlfriend in Australia and that Mr Wang has never changed his mind to wait for his wife and daughter to come to Australia to have their family reunion. This is the evidence of fidelity, to which I have earlier referred.
Mr Qiang also gave information that the applicant has resided at a backyard flat of his employer and the telephone communications available there. He also expressed conclusions in this declaration that the marriage between the two has never broken down and that they hope to have a family reunion soon. Mr Qiang said, amongst other things:
He (the applicant) is such an honest man, who loves his wife and family deeply. The 12 years separation has already brought Mr Wang and his family a great deal of hardships... and now it is time for everyone to help them to end such hardships.
This was an opinion of a friend or acquaintance about the nature of the relationship. The document was not a document stating only that the parties were married and that the visa applicant lived with the review applicant's parents. It was a statement which commented upon the nature of the spousal relationship, although it was written by someone who had not had the opportunity to observe the parties together after 1990. It dealt with the circumstances of the relationship. It dealt with an opinion of the person’s friend about the nature of the relationship and it dealt with the matters in (1A)(b)(i) and (ii).
The next piece of material was a statutory declaration of Boon Leng Ng. This gentleman was the applicant's part time employer for some years. He has known the applicant for five years. He gave some evidence as to the general good character of the applicant, he gave evidence that he had seen the applicant keep in contact with his wife and family. He also confirmed that the applicant had never had any relationship with any woman in Australia during the time he had resided with him. This gentleman was the employer with whom the applicant had lived for some time in a backyard flat. This gentleman's statutory declaration stated the following, amongst other things:
I can confirm that Mr Wang Fang has never had any relationship with any woman in Australia during a time when he has resided at my place. He lives alone at my back yard flat quietly. This can prove that he only loves his wife in China. Please imagine if he did not love his wife he would already have had another woman here in Australia. Twelve years separation! No couple can put up with such long time separation and would have already found another partner if their marriage was already broken down. I'm sure that the marriage between Mr Wang Fang and his wife is true and is still continuing.
This gentleman was not family, he was an acquaintance. From his statement I would take it that he was also a friend. The expressed opinion was material going to the circumstances of the relationship.
This was not a statement only that the parties were married and that the wife lives with the applicants parents. It was a statement which commented upon the nature of the spousal relationship. However it was written by someone who did not have the opportunity to observe the parties together after 1990.
The next document is a common document signed apparently by 17 people in China. The translation of the document is as follows:
Translation
17 people’s Statement
We are Wang Fang’s father’s colleagues and live at same building with Wang Fang and his parents. This is to certify that Shen Dang Ying and Wang Fang have been getting on very well with each other after they married. Shen Dang Ying and Wang Fang have been keeping marriage relationship since Wang Fang went to study in Australia. Shen Dang Ying and her daughter Wang Ying have been living with Wang Fang’s parents since they backed [sic] to China from USA. Wang Fang lived at his parent’s home with Shen Dang Ying when he came back China in Novernmber [sic] 2001
Signatures of 17 people’s
2003.3.18
I take it that the applicant's parents and his wife live in an apartment block. The material is relevant to show that the applicant lived at his parents home with his wife when he went back to China in November 2001. This was however recognised by the Tribunal at [33] of its reasons and so the document does not have the relevance in the Peko-Wallsend sense that some of the other documents do, to which I will come.
The next document is of the applicant's aunt, the sister of Wang Fang's father. She said the following:
Wang Fang and Shen Dang Ying getting on very well with each other after they married.
She described their having a daughter. She said that since Wang Fang went to Australia they had been keeping in touch and that Wang Fang's wife had been living with Wang Fang's parents. She also says that they happily lived together again after the father of Wang Fang and his wife came back from the United States in October 2000. This I take it is a reference to what is referred to in the last paragraph which states that:
Wang Fang came back to China in Novernmber [sic] 2001, they [I take it to be Wang Fang and his wife] had a good time.
I take the last expression to mean, in moderate terms, that they enjoyed each other’s company. The aunt also says the following:
Although she has separated from Wang Fang so many years, she still loves him. Besides the working, she looks after her daughter and deals with the household. She never ever had unfaithful behaviors [sic].
This was evidence by the aunt of the fidelity of the wife to the applicant. This statement was not only evidence that the parties were married and that the wife lived with the parents. It was a statement which commented on the nature of the spousal relationship. It was a statement which had material within it about the fidelity of the parties and so was a statement directed to an important circumstance of a relationship in these circumstance and it was written by someone who did have an opportunity to observe the parties together after 1990.
The next document is a statement by someone on behalf of a biology technology company to certify that the wife (Shen Dang Ying) works as a secretary at the sales department of the company. It only directed itself to the fact of her marriage, her working with the company and living with the parents. It was a document which answered the description in [36] of the Tribunal’s reasons.
The next document is a statement of the brother of the wife, Shen Dang Ying. He lives in Hang Zhou. He states that his sister and her husband:
Have been getting on well with each other since they married.
He said that they were keeping their marriage relationship since the applicant came to Australia to study. He also said that his sister had been living with the applicant's parents and that they had been keeping in touch by phone. He also indicates that he saw the applicant when he visited China in November 2001. Whilst the statement does identify more things than as set out in [36], I do not think that in this statement, beyond the statement that the applicant and his wife had been getting on well with each other, when combined with the fact that he saw at least the husband and in all likelihood his sister as well when the husband applicant was back in China in November 2001, would indicate that there was material from this person, dealing with the circumstances of the relationship and the nature of the relationship, even if he was a relation of one of the parties.
The next document was a letter from the applicant husband's sister and her husband. The letter states that they know that the applicant and his wife have been in a good relationship since their marriage. They say that after the applicant came to Australia he and his wife maintained their marriage. They visit China and have met the wife (Shen Dang Ying) when they visited China. This material does contain an opinion as to the relationship. They say that it is a "good relationship" and subject to the argument as to "friends and acquaintances" this was an opinion about the nature of the relationship, for the purposes of (3)(c)(ii).
The next document is another letter from the younger brother in Texas. He is now a support engineer at Oracle and a US citizen. The statement describes his brother marrying in 1986. He then says:
They are always in great relationship.
He then continues:
After my brother left China to Australia in 1990, a lot of people looked down of (sic) their marriage, but they used time to prove that there is true love in this world and distance cannot keep apart the loving couples.
The letter also described the wife living with the brother and the applicant's parents. The letter also states that in October 2002 and January 2003 this brother went back to China to visit his parents. During that time he visited the applicant's wife in his parents’ house and he said in the letter:
I heard and saw the stories of my brother's marriage. I really believed that they are blessed couple.
This was not a document stating only that the parties were married and that the wife lived with the husband's parents. It was a document which commented upon the nature of the spousal relationship between the parties. It was a document written by someone who had not had the opportunity to observe the parties together after 1990 but he was a person who had the opportunity to see the wife in person in recent times. The document concerned the nature of the relationship. It was an opinion about the nature of the relationship and it was material going to the circumstances of the relationship. It was also material going to the matters in (1A)(b)(i) and (ii).
The last document was a declaration of the wife's parents. It was in the following terms:
Translation
Shen’s Parents’ Statement
Since our daughter, Shen Dang Ying, married Wang fang, they have got on very well with each other. They have been keeping in touch at all time since Wang Fang went to study in Australia. Shen Dang Ying has lived with Wang fang’s parents after they came back from USA in October 2000. Also Wang Fang lived at his parents’ home with his parents, wife and daughter when he came back to China in November 2001. Shen dang ying has been keeping in touch with her husband by phone and letters frequentlyOur daughter, Shen dang Ying, is a good wife who has Chinese tradition virtue. She is loyal to her husband and loves her husband at all time.
Shen Dang Ying’s Father: Shen Bing Yan
Shen Dang Ying’s Mother: Xu Yu Gen
23 March 2003
This was not a document limited only to the fact of their marriage and that the wife lives with her husband's parents. It was a document which did comment on the nature of the spousal relationship. Implicitly, I conclude that it was a document written by persons who did have the opportunity to observe the parties in 2001. I infer this from the unlikelihood of the parents who come from the same province not seeing their daughter and son-in-law on their only visit to China for over a decade.
These errors in reading and characterising these documents are not just errors of fact. There is material in many of these letters which went to (1A)(b), for example the fidelity of the parties and the continuity of their contact. There was also material which went to paragraphs (3)(c)(i) and (ii), in particular (ii). There was material in these letters which went directly to the circumstances of the relationship, circumstances being plainly wide enough to encompass the notion of quality, character and nature of the relationship. That view is reinforced by the terms of subpar 3(c) as a subclass of the notion of the circumstances of the relationship. In any event a common sense reading of the English and a recognition of the subject matter makes it plain, it seems to me, that the circumstances of the relationship involved, as I have said, the character, quality and nature of the human emotions between those two people, this material was replete with that to a greater or lesser degree.
The phrase "little weight" was referred to by the Tribunal. Reading the Tribunal's decision, it is plain in my opinion, that little weight was given to this material, not because of a reading and weighing of it according to its terms as directed to these statutory purposes, but because these documents were (largely incorrectly) seen to be irrelevant for the reasons given. The letters to which I have referred, dealt directly with the very subject matters to which (1A)(b) and (3)(c) were directed, in particular (c)(ii).
Ms Henderson submitted that the phrase "friends and acquaintances" in subpar (3)(c)(ii) excluded family. It is hard to see any sensible reason for that. Further difficulties arise. Is it family by blood? Is it family by marriage? Is the husband's younger brother an acquaintance of his wife, or is he family? No relevant definition of family is given. Family is not referred to in these regulations. Certainly subpar (c)(i) is wide enough to include family as people to whom the persons represent themselves. It may be, as I think Ms Henderson's submissions put it, that it was an exclusion of family to distance the opinions from those close to the person. I have difficulty with that. The whole purpose of these subcategories is to assist the Minister and the Tribunal in a list of inclusive matters which go to the circumstances of the relationship, and the opinion of those referred to in (c)(ii) is one method, and a compulsory one, of assessing the circumstances of a relationship.
In ordinary parlance it is not an uncommon usage to call a close relation a friend. For the moment I will approach the matter on the more limited basis submitted by Ms Henderson. Even on this basis the Tribunal failed to address material in the butcher's statement, and others, but his statement in particular, that went to circumstances which were compulsory to examine, that is, the circumstances of the relationship, including but not limited to the apparent fidelity of the parties and their affection for each other.
By mischaracterising or misreading these letters and documents the Tribunal gave "little weight" to them. The use of the adjective "little" does not save the decision in my view from criticism.
It is not just a question of fact. It is not just a question of misreading the documents as a question of fact. In the context of looking at the subject matter of subpar (c) the letters simply do deal with the nature of the relationship. The Tribunal's mischaracterisation that they do not, does not deny what is in the letters. They deal with the nature of the relationship, they deal with the opinions of various people, some family, some friends and acquaintances about the nature of the relationship and they deal with the circumstances of the relationship.
In those circumstances, the three reasons given to indicate why little weight was given indicate a sufficient misunderstanding of the letters as to allow me to conclude that as material going to the circumstances of the relationship, the nature of the relationship and the opinion of family and friends about the relationship, those circumstances were not taken into account, even if as misunderstood to be limited to the matters set out in par 36, they were said to be given little weight.
What happened, it is plain to me from [36], is that the letters were viewed as only providing the information there contained. As letters only providing that information, little weight was given to them. In fact they were letters providing significantly more than those three matters. They were documents which touched on the compulsory considerations of the regulations. They were documents given little weight as mischaracterised information. They were given no weight as documents properly understood which objectively contained information going to the circumstances of the relationship, the nature of the relationship and the opinion of persons, both friends and family, about the nature of the relationship.
A good example is the question of fidelity. It is not dealt with. If these letters had been read in a way which displayed an understanding of their content, no doubt fidelity would have been referred to. As I said earlier, it is plainly a circumstance of a relationship of two people who are, by force of circumstance, thousands of kilometres apart and who are married. (Even in the first decade of the 21st century I think I can say that).
Even accepting Ms Henderson's submissions about the limitation of (c)(ii), if a family member has an opinion about the nature of the relationship, it seems to me that in the structure of subreg (3), that is something which attends the circumstances of the relationship. The regulation itself identifies the opinions of others, friends and acquaintances as, in effect, part of the circumstances of the relationship. Thus it does not follow that even if (c)(ii) specifically does not include family opinions, that those opinions are not of their very nature, if they are about the nature of the relationship, material about the circumstances of the relationship. That is the general class of subject matter in subreg (3).
From the form and text of reg 1.15A, if a family member presents material going to what would otherwise be something falling within (c)(ii) that is the nature of the relationship of the relevant parties, in my view it is required to be taken into account as something going to the circumstances of the relationship within par (3). If it be necessary to decide it I would be of the view that the words "friends and acquaintances" were wide enough to include family, but I prefer to approach the matter on the narrower basis to which I have referred.
In my opinion, the Tribunal, because of a mischaracterisation and misunderstanding of the contents of a number of documents, has failed to take into account material which went directly to the circumstances of the relationship and which were in the terms and within the structure of those regulations, compulsory to take into account. In my opinion it failed to complete its jurisdictional task as laid down for it by reg 1.15A and the other subordinate legislation in subclass 309. For those reasons, in my view, the applicant is entitled to relief.
The amended application filed in court today sought the following orders.
1.A writ of certiorari removing into this Court to be quashed the purported decision of the respondent made at Sydney on 14 May 2003 affirming a decision of a delegate of the respondent to reject his spouse’s application for a sub class 309 visa.
2.A declaration that the said purported decision of the respondent is not a “privative clause decision” as defined in sub section 474(2) of the Migration Act 1958.
3.A Writ of Mandamus directing the respondent to rehear and re-determine the applicant’s application for a protection visa according to law.
4.An order that the respondent pay the applicant’s costs.
The amended application contains as the second respondent the Tribunal. Mr Karp for the applicant perfectly properly raised with me the views previously expressed by at least one judge of this Court, that the Tribunal is not a proper party to the application. It is unnecessary to decide this. I propose to grant relief directed to the first respondent Minister.
Ms Henderson, upon invitation, did not wish to put any submissions about the form of order.
The orders I will make are as follows:
1.A writ of certiorari removing into this court to be quashed the decision of the Migration Review Tribunal of the Commonwealth of Australia (the Tribunal) made at Sydney on 14 May 2003 affirming a decision of the delegate of the first respondent Minister to reject the applicant's spouse’s application for a subclass 309 visa.
2.A declaration that the said purported decision of the Tribunal is not a "privative clause decision" as defined in subsection 474(2) of the Migration Act, 1958 (Cth) being made in excess of jurisdiction.
3.The matter be remitted to the Tribunal to be dealt with according to law.
4.An order that the first respondent pay the applicant's costs.
I certify that the preceding sixty nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 24 October 2003
Counsel for the Applicant: Mr L J Karp Solicitor for the Applicant: Ren Zhou Lawyers Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 September 2003 Date of Judgment: 17 September 2003
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