Fitch v Migration Review Tribunal

Case [2004] FCA 1673

FEDERAL COURT OF AUSTRALIA

Fitch v Migration Review Tribunal [2004] FCA 1673

MIGRATION – spouse visa – relationship between visa applicant and sponsoring spouse has ceased – visa applicant and sponsoring spouse have ongoing connection with child – subclause 801.221(6)(c)(ii) of the Migration Regulations 1994 – whether a court order is necessary to satisfy subclause 801.221(6)(c)(ii)(A) of the Migration Regulations 1994 – whether a statutory obligation to maintain a child satisfies subclause 801.221(6)(c)(ii)(E)

WORDS & PHRASES – “custody”, “formal maintenance obligation”

Family Law Act 1975 (Cth) ss 60D, 61B, 61C, 64C, 66C, 69ZK
Family Law Reform Act 1995 (Cth) Sch 2, cl 2

Migration Regulations 1994 (Cth) reg 1.03, Sch 2 subclasses 801, 802
Family Law Regulations 1984 (Cth) Sch 5

Status of Children Act 1978 (Qld) s 3
Commonwealth Powers (Family Law - Children) Act 1990 (Qld) s 3
Child Protection Act 1999 (Qld) ss 18, 59, 61
Acts Interpretation Act 1954 (Qld) s 33
Maintenance Act 1965 (Qld) s 15

Criminal Code (Qld) s 286

Yazbeck v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 458 not followed

SIMON JUSTIN FITCH v MIGRATION REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 124 OF 2004

DOWSETT J
21 DECEMBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 124 OF 2004

BETWEEN:

SIMON JUSTIN FITCH
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

21 DECEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be allowed.

2.        The decision of the Migration Review Tribunal be set aside.

3.The matter be remitted to the Tribunal for further consideration in accordance with the law.

4.The second respondent pay the applicant’s costs of the proceedings, not including the reserved costs of 27 October 2004, with respect to which I make no order.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 124 OF 2004

BETWEEN:

SIMON JUSTIN FITCH
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE:

21 DECEMBER 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

THE APPLICATION

  1. The applicant seeks review of the decision of the first respondent (the “Tribunal”) to affirm a decision of the second respondent (the “Minister”) refusing his application for a Partner (Residence) (Class BS) - Subclass 801 (Spouse) visa (the “Subclass 801 visa”).  That visa is a permanent visa.

    THE VISA

  2. To obtain a Subclass 801 visa an applicant must hold a Subclass 820 (Spouse) visa. That visa is a temporary visa, expiring when the holder’s application for a Subclass 801 visa has been determined. An applicant for either a Subclass 801 or a 820 visa must be sponsored by his or her spouse. A “sponsoring spouse” is defined in subclause 801.111 of Sch 2 of the Migration Regulations and must be…

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AGLC
Fitch v Migration Review Tribunal [2004] FCA 1673
Case
[2004] FCA 1673
Decision Date

CaseChat Overview and Summary

The case of Fitch v Migration Review Tribunal involved Simon Fitch, a British national, who sought a visa to remain in Australia. The dispute centred on whether Mr Fitch met the criteria under the Migration Regulations, specifically subpar 801.221(6)(c)(ii), which requires that either Mr Fitch or his sponsoring spouse, Sonya Hose, an Australian citizen, must have custody or access to a child, and the other must have a relevant court order or obligation relating to the same child. The Tribunal found that Mr Fitch did not meet these requirements because there was no evidence of formal custody or maintenance arrangements. Mr Fitch argued that informal arrangements were sufficient and that the obligations of the sponsoring spouse under item (E) were not relevant to his application.

The key legal issues were whether the Tribunal correctly interpreted the Migration Regulations in finding that informal arrangements were insufficient to meet the visa criteria and whether the obligations of the sponsoring spouse, as set out in items (C), (D), and (E), could be relevant to the visa applicant's eligibility. The court had to determine if the Tribunal's interpretation of the statutory provisions was correct and whether the Tribunal appropriately considered all relevant factors in making its decision.

The court found that the Tribunal erred in its interpretation of the regulations. It held that informal arrangements can suffice to meet the requirements under item 801.221(6)(c)(ii)(A) if they are consistent and in the best interest of the child. Furthermore, the court clarified that the obligations of the sponsoring spouse, as outlined in items (C), (D), and (E), are not necessarily relevant to the visa applicant's eligibility under item (A). Instead, the relevant criteria are those that apply directly to the visa applicant. The court held that the Tribunal should have considered the informal arrangements and the contributions made by Mr Fitch in its assessment. Consequently, the Tribunal's decision was set aside, and the matter was remitted for reconsideration.

The court ordered that the application be allowed, the decision of the Migration Review Tribunal be set aside, and the matter be remitted for further consideration in accordance with the law. Additionally, the court ordered that the second respondent pay the applicant's costs of the proceedings, except for the reserved costs of 27 October 2004, which were left undecided.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Migration Review Tribunal be set aside.

3. The matter be remitted to the Tribunal for further consideration in accordance with the law.

4. The second respondent pay the applicant’s costs of the proceedings, not including the reserved costs of 27 October 2004, with respect to which I make no order.

Background

Background to the litigation

The applicant relies upon the second limb. The only matter in dispute is whether the applicant satisfies par 801.221(6)(c) of the Migration Regulations which relevantly requires that: ‘either or both of the following circumstances applies: (i) … (ii) the applicant: (A) has custody or joint custody of, or access to; or(B)has a residence order or contact order made under the Family Law Act 1975 relating to;at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or(D)has a residence order or contact order made under the Family Law Act 1975; or(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.’To satisfy subpar 801.221(6)(c)(ii), a visa applicant must satisfy items (A) or (B) thereof, and the sponsoring spouse must satisfy one of items (C), (D) and (E) in relation to the same child. There is no requirement that the child in question be an offspring of the relationship between the visa applicant and the sponsoring spouse or that either of them be a biological parent of the child. FACTS The applicant is a British national. The sponsoring spouse for the purposes of his applications for Subclasses 820 and 801 visas was, and is, Sonya Hose, an Australian citizen. On 15 April 1999 a son was born of their relationship, Samuel Monty Fitch. The relationship between the applicant and Ms Hose ended in September 2002. According to the applicant:‘I see Sam on Tuesdays, Thursdays and alternate weekends and also contribute to the finances for his lifestyle at his mother’s home.’ Ms Hose said:‘Simon Fitch, the father of our child Samuel Monty Fitch is in regular and consistent contact with Samuel. Simon spends every Tuesday evening and when circumstances allow every Thursday evening with Sam, as well as having Sam in his care on alternate week-ends from Friday afternoon to Sunday afternoon. Simon also contributes financially while Sam is in my care. These arrangements have been made informally and amicably between us, and in the best interests of Sam’s emotional and physical well being.’THE DECISION OF THE TRIBUNAL In the Tribunal, the applicant asserted that he satisfied item 801.221(6)(c)(ii)(A), and that his sponsoring spouse satisfied item 801.221(6)(c)(ii)(E). The Tribunal observed at [25] – [27] of its reasons:’25. The visa applicant and his former de facto spouse have provided a statutory declaration stating that they have an informal agreement which allows the visa applicant access to his son and that he also contributes financially to his upkeep. It was further stated that the visa applicant and his former de facto spouse believe it is in the best interest of the child if the visa applicant was to remain in Australia. Despite repeated requests to provide additional material to evidence the custody arrangements no such material has been put before the Tribunal. In the letter dated 8 April 2004 the visa applicant refers to having sought a solicitor’s advice, but provides no further information as to any official arrangements in relation to joint custody of the child.26. There is no evidence before the Tribunal that a Court order under the Family Law Act 1975 has been made granting the visa applicant joint custody or access. Nor is there evidence of a residence order made under the Family Law Act 1975 or that the visa applicant has an obligation under a child maintenance order made under the Family Law Act 1975 or any other formal (and accepted) maintenance obligation.27. Having had regard to all the material and evidence before it, the tribunal finds the visa applicant does not meet the requirements of subclause 801.221(6)(c)(ii). The Tribunal finds the visa applicant does not satisfy the requirements of clause 801.221 of the Regulations and is therefore not eligible for the visa he is seeking to have granted.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOWSETT J
Ms Hose said:‘Simon Fitch, the father of our child Samuel Monty Fitch is in regular and consistent contact with Samuel. Simon spends every Tuesday evening and when circumstances allow every Thursday evening with Sam, as well as having Sam in his care on alternate week-ends from Friday afternoon to Sunday afternoon. Simon also contributes financially while Sam is in my care. These arrangements have been made informally and amicably between us, and in the best interests of Sam’s emotional and physical well being.’THE DECISION OF THE TRIBUNAL In the Tribunal, the applicant asserted that he satisfied item 801.221(6)(c)(ii)(A), and that his sponsoring spouse satisfied item 801.221(6)(c)(ii)(E). The Tribunal observed at [25] – [27] of its reasons:’25. The visa applicant and his former de facto spouse have provided a statutory declaration stating that they have an informal agreement which allows the visa applicant access to his son and that he also contributes financially to his upkeep. It was further stated that the visa applicant and his former de facto spouse believe it is in the best interest of the child if the visa applicant was to remain in Australia. Despite repeated requests to provide additional material to evidence the custody arrangements no such material has been put before the Tribunal. In the letter dated 8 April 2004 the visa applicant refers to having sought a solicitor’s advice, but provides no further information as to any official arrangements in relation to joint custody of the child.26. There is no evidence before the Tribunal that a Court order under the Family Law Act 1975 has been made granting the visa applicant joint custody or access. Nor is there evidence of a residence order made under the Family Law Act 1975 or that the visa applicant has an obligation under a child maintenance order made under the Family Law Act 1975 or any other formal (and accepted) maintenance obligation.27. Having had regard to all the material and evidence before it, the tribunal finds the visa applicant does not meet the requirements of subclause 801.221(6)(c)(ii). The Tribunal finds the visa applicant does not satisfy the requirements of clause 801.221 of the Regulations and is therefore not eligible for the visa he is seeking to have granted.’ The Tribunal apparently considered that:®to satisfy item 801.221(6)(c)(ii)(A), a visa applicant must have custody or joint custody of, or access to a relevant child pursuant to a court order or other “official arrangements”;®item 801.221(6)(c)(ii)(E) addresses obligations of the visa applicant rather than the sponsoring spouse; and®for the purposes of that item, the relevant maintenance obligation must be pursuant to an order under the Family Law Act 1975 (Cth) (the “Family Law Act”) or some ‘… other formal (and accepted) maintenance obligation’.GROUNDS FOR REVIEW The applicant submits that the Tribunal erred in its interpretation of items 801.221(6)(c)(ii)(A) and (E) in that:®a visa applicant may satisfy item (A) if he or she has custody, joint custody or access to a relevant child under informal arrangements;®the alternative criteria in items (C), (D) and (E) concern the sponsoring spouse, not the visa applicant; and®the sponsoring spouse may satisfy item (E) if he or she has a legal obligation to maintain a relevant child even if such obligation is not reflected in a court order or other formal arrangement specific to the particular case.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

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