Garcevic v MIAC
[2012] FMCA 931
•11 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARCEVIC & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 931 |
| MIGRATION – Review of Migration Review Tribunal Decision – where application for partner (Provisional) (Class UF) visa – where applicant’s daughter gave evidence to support genuineness of relationship – where Tribunal drew negative inference from daughter’s evidence – whether daughter’s evidence information provided by applicant – whether Tribunal required to give content of daughter’s evidence to applicant for comment – where Tribunal considered certain matters important in assessing genuineness of relationship – whether Tribunal misapplied the law – whether merits review sought – where Tribunal raised mandatory consideration with applicant but did not include consideration in decision record – whether Tribunal failed to have regard to a mandatory consideration – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.5F(2)(b), (c), 359A, 368(1)(c), 424A Migration Regulations 1994, Sch 2, Pt 309, 1.15A(3) |
| Minister for Immigration & Anor v Dhillon [1990] FCA 144 Ozbunbar v Ministerfor Immigration & Anor (1998) 55 ALD 163 Singh v Minister for Immigration & Anor (unreported) Federal Court Branson J No SG8 of 1995, 29 April 1996 Sevim v Minister for Immigration & Anor (2001) 114 FCR 126 R v Cahill (1978) NSWLR 453 SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190 MZXGB v Minister for Immigration and Citizenship [2007] FCA 392 VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504 Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16 SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 SZEWL v Minister for Immigration and Citizenship [2009] FCA 209 Zhang v Minister for Immigration & Anor [2005] FCAFC 30 |
| First Applicant: | RAMIZA GARCEVIC |
| Second Applicant: | MD ABDUL MALIQUE |
| Third Applicant: | ABUL KASHIM |
| Fourth Applicant: | MS MOOMTAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 788 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 September 2012 |
| Date of Last Submission: | 4 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J King |
| Solicitors for the Applicant: | Parish Patience Lawyers |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari bringing the decision into this court to be quashed.
A writ of mandamus directing the Second Respondent to re-determine the applicant’s application to it according to law.
First Respondent to pay the Applicants’ costs assessed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 788 of 2012
| RAMIZA GARCEVIC |
First Applicant
| MD ABDUL MALIQUE |
Second Applicant
| ABUL KASHIM |
Third Applicant
| MS MOOMTAZ |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application for a review of a decision of the Migration Review Tribunal the first applicant is known as the “Review Applicant”. She is the Australian citizen married to Mr Malique who is sponsoring his application for a partner (Provisional) (Class UF) Visa for which he and the other applicants described as the “visa applicants” applied on 29 April 2010. The application was refused by a delegate of the Minister on 2 June 2010. On 7 July 2010 the review applicant applied to the Migration Review Tribunal for review of the delegate’s decision. The Tribunal held a hearing at which the review applicant was present together with her advisor and Mr Malique attended by telephone from Bangladesh where he is currently residing. Witnesses were called on behalf of the review applicant and evidence was taken from them at the hearing. On 13 March 2012 the Tribunal determined to affirm the decision not to grant a Partner (Provisional) (Class UF) visa.
The relevant statutory provisions that provide the criteria for the visa sought are found in Part 309 of Schedule 2 of the Migration Regulations 1994[1] as set out below:
[1] “Regulations”
“Relevant Statutory Provisions
Part 309 of Schedule 2 of the Migration Regulations 1994 (the Regulations) provide the criteria for Partner (Provisional) (Class UF) visa, required, relevantly, that an applicant for the visa is the spouse or de factor partner of an Australian citizen at the time of the application:
Section 5F of the Act provides the definition of spouse, relevantly:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A(3) provides
1.15A Spouse
(1) For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(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 person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(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; and
(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) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”
It was accepted by the Tribunal that Ms Garcevic and Mr Malique are married to each other under a marriage that is valid for the purposes of the Act. It was the finding of the Tribunal that because they were unable to comply with s.5F(2)(b) and (c) of the Migration Act 1958 (Cth)[2] that the visa was declined.
[2] “Act”
The factual background to the relationship between Ms Garcevic and Mr Malique is as follows. Ms Garcevic is an Australian citizen. She is twice widowed. In 1987 she was assaulted in her apartment by her brother in law who hit her on the head with a hammer leaving her in a coma. As a result of this incident and her ongoing diabetes and other medical problems she receives a disability pension. She lives at home with her daughter who is a student. Although Ms Garcevic is capable of household duties she does have difficulty in attending to her own medication, she does not drive, is fearful and frequently depressed. Although there is some dispute as to exactly when and where Mr Malique met Ms Garcevic it is common ground that this occurred in late 2005. At the time Mr Malique was working in Australia. He was then married. His wife lived in Bangladesh with his children. Mr Malique’s marriage ended in divorce in 2009. The couple saw each other regularly as friends. Around three years into the relationship the visa applicant lost his work permit in Australia and was unable to remit money back to Bangladesh. As a result he and his wife broke up and she obtained a divorce from him. This prompted the couple to take their relationship to another level and on 20 November 2009 they married. Mr Malique moved into the flat occupied by Ms Garcevic, they bought some furniture together including a new television, a bed, sofa and dining table. They opened a bank account and put the telephone and electricity accounts into joint names. Mr Malique’s efforts to obtain a work permit were unsuccessful. On 27 April 2010 he departed Australia and lodged his application for the partner visa from Bangladesh. In a letter dated 11 March 2010 and signed by Ms Garcevic she stated:
“[17]I’m a very sick and scare person because many years ago some on brake in my home and hit me on my head and I was in the coma for some time. That’s why I married to Md Maliq Abdul so he can be with me and help me with my life because I taking so much medications and I need him to be with me. To help me with my problems because sometimes I can not drive and get very depress I will so please to say thank you so much if you try to help me to send him back to his Country because I can not live by myself wit out him.” (sic)[CB 240]
There was lodged with the application a medical certificate issued by the King Street Medical Centre which stated that Ms Garcevic:
“[19]Suffers with diabetes and depression. Recently her mental state has severely worsened with complications of her diabetes, i.e. problems with her eyes. Special consideration must be given to her husband to return to Australia and help care for his wife whose mental and physical health has deteriorated recently.” [CB 240-241]
There is a significant age difference between the couple. Ms Garcevic is in her sixties and Mr Malique is in his forties:
“[30] …After telling her about this, [his divorce], the review applicant said the visa applicant began to come over to her place and tell her that he wanted to find a woman like me to be with. He started his courtship like this. [CB 243]
The Tribunal questioned Ms Garcevic about a number of matters:
“[37]The Tribunal asked the review applicant about the household arrangements in the period after the visa applicant moved in to her apartment. She stated that he was working and she was mostly at home. She cooked and cleaned. Whenever she needed his help he would help. He supported her financially, his income went into the joint account. He ate her food. On occasion he cooked but she prefers her type of food. They visited RSL clubs together sometimes for meals. Sometimes his friends from Lakemba visited him at their home. She does not know their names because she finds it hard to remember their names. They have not visited her since his departure. On 27 April 2010 he returned to Bangladesh and they have not lived together since.” [CB 244]
The Tribunal also enquired as to the communication between the couple since Mr Malique has left for Bangladesh. Ms Garcevic told that she had had regular telephone conversations with Mr Malique:
“[38]The Tribunal asked again, what she and her husband discuss on their phone conversations over the last 18 months as husband and wife. The review applicant said that she just complains to him about her health and the difficulties she has with her health. The review applicant stated again she tells him that she cannot wait to see him. He tells her the same thing. They speak sometimes for 2 minutes, sometimes 5 minutes, sometimes 20 minutes.” [CB 244]
The Tribunal questioned Ms Garcevic further about the relationship:
“[41]The Tribunal asked the review applicant to describe what the visa applicant gives to her as a husband. She said that to begin with she is not alone, he is nice to her, he respects her, when he earns money he brings it home and asks how are we going to spend it, and most importantly, she is not alone and that is reason enough, that she is not alone. When asked if she talks about her feelings with him, she said yes, she tells him she misses him so much and can hardly wait for his return. The age difference does not trouble her, he knew it from the beginning and she is also okay with it. When asked if she considers the relationship long term, she stated that as she has buried two husbands she thinks he will be the one to bury her. The Tribunal asked what she would do if the application is refused. She stated that she would make another appeal but ultimately she will stay with him. When asked if she would consider going to his country, she stated that she would except that she has no money. She has not travelled anywhere as she has no money.”[CB 245]
The Tribunal heard evidence from the review applicant’s daughter:
“[56]Ms Vejselovic told the Tribunal that her mother really needs help. Her situation is causing Ms Vejselovic a lot of trouble. She advised the Tribunal of the problems her mother has faced taking her medication, she mixes up the doses. Ms Vejselovic has had to miss classes at TAFE, take her shopping etc.
[57]Ms Vejselovic confirmed that the review and visa applicant met at the Lakemba mosque in November 2005, she was present when they met. They started going to lunches after that.
[59]Ms Vejselovic stated that she believes the relationship is genuine because they care for each other. Her mother needs someone to care for her constantly and she cannot do that. Ms Vejselovic stated that she cannot continue to care for her mother. The Tribunal confirmed that when the visa applicant was living with her mother, was he working? She confirmed that he was, and that she was caring for her mother at that time. But she stated, if he comes here, he will look after her because she is planning to move out and he would be responsible for her.”[CB 248]
The Tribunal heard evidence from Mr Peter Lekic for whom Mr Malique worked at Glad Commercial Cleaning and who knew Ms Garcevic. The Tribunal also heard evidence from Mr Alam who was a friend of Mr Malique’s:
“[62]Mr Alam told the Tribunal that he knows the visa and review applicant for a long time and knows that the visa applicant was in a relationship with the review applicant. He told him about it in 2005. Until now they are still together. The visa applicant, while in Bangladesh, asks how they are doing. Mr Alam stated that he goes to the review applicant’s house sometimes to visit. He sees that she is upset also because the visa applicant is not here. The Tribunal asked when Mr Alam met the visa applicant. He met the visa applicant soon after he arrived, though common family contacts. When he first met he mentioned that he had met a woman at the mosque and that he was having a relationship with her, though there were some cultural barriers that affect how he talked about it with him.”[CB 249]
On 30 November 2011 the Tribunal sent a letter pursuant to s.359A of the Act to the review applicant. It made reference to certain inconsistencies in the evidence that the Tribunal had heard in particular in relation to the date and manner of their meeting:
“This information is relevant because it may lead the Tribunal to doubt that it is credible that you and the visa applicant met and developed a relationship as you have claimed. The evidence of the visa applicant and Ms Vejselovic about who was present at the Mosque at your first claimed meeting, and when you exchanged phone numbers with the visa applicant is not consistent your evidence. If this information is relied on it may lead the Tribunal to not accept that you and the visa applicant met by coincidence at the Lakemba Mosque and exchanged telephone numbers or met again at Lakemba. If the information from the visa applicant about the involvement of officials from Glad Commercial Cleaning and the evidence from Mr Lekic is relied on, the Tribunal may find that it is likely you were introduced to each other through common contacts at the Glad Commercial Cleaning Company and the relationship between you was contrived to achieve a migration outcome for the visa applicants. If relied on, together with other findings, this information may lead the Tribunal to not accept as credible your evidence about the inception, development and continuation of the relationship. [CB 251]
The Tribunal also in the letter stated:
· “In his evidence at the hearing the visa applicant was not aware that you had been married twice previously, or when you migrated to Australia. He did not know any details of what your daughter was studying at present. Apart from his knowledge of your health conditions, he did not demonstrate a level of knowledge or knowledge of any other aspects of your life as would be expected of a spousal relationship in existence for over 2 years and a claimed 3 year friendship prior to the marriage.
· The visa applicant in his evidence stated that he talked to you very openly and in detail about his problems with his former wife. In your evidence at the hearing, you demonstrated only limited knowledge about the visa applicant’s previous relationship, the problems he had or his background here or prior to his arrival in Australia. Other than their names and approximate ages, you did not demonstrate any knowledge or interest in his children as would be expected of a spousal relationship in existence for over 2 ears and a claimed 3 year friendship prior to the marriage.
The information about your and the visa applicant’s level of knowledge of each other is relevant because, if relied on, the Tribunal might find that neither you or the visa applicant knew important details about each other’s lives regarding past relationships and migration history. The Tribunal might find that neither you or the visa applicant know more than bare biographical details of each other’s family.”
The s.359A letter was replied to by the review applicant. Mr Lekic and Ms Petkovic denied that they had introduced the applicants for the purpose of marriage and the review applicant’s representative submitted that the inconsistencies related to only minor areas of the events and were not relevant to determine the genuine and continuing nature of the relationship.
In its findings and reasons the Tribunal indicated that it did not accept as plausible or credible that the couple had met and developed a relationship as they had claimed. The Tribunal referred to the inconsistencies in the parties’ accounts of their meetings at the Lakemba Mosque, noted that it considered it unlikely that Ms Garcevic would have given Mr Malique her phone number on the day they first met and did not accept the explanation provided for the inconsistent evidence:
“[82]The inconsistent accounts provided by the review and visa applicants about how they met suggests to the Tribunal that they have not given a truthful account of these events. Additionally, the Tribunal does not accept as plausible or credible that the review applicant, given her age and personal history, would have given her contact details as she claims to have done, to a man she had just met, who was not known to anyone she knows, was significantly younger than herself and from a completely different cultural background of which she had no prior connection. By her own evidence the review applicant was previously married to men of her own cultural background, had only just returned to Australia after spending 16 years in Serbia, and was still feeling insecure following a vicious personal attack by a male intruder to her house many years previously. The Tribunal finds it highly implausible that she would have met and befriended a total stranger from a wholly different cultural community as quickly and coincidently as she has claimed. For these reasons, the Tribunal does not accept the account provided by the review applicant as to the circumstances in which she met and developed a relationship with the visa applicant.” [CB 255-256]
The Tribunal did not accept that the review applicant’s claims regarding the development of the relationship:
“[84]The Tribunal considers the inconsistency about who initiated, or suggested the idea of marriage to whom to be highly significant. The Tribunal also finds that the review and visa applicants’ accounts about how much information the visa applicant shared about his personal circumstances during the period of their claimed friendship to be inconsistent. The Tribunal does not accept either of their accounts about the development of their friendship and how they decided to marry.[CB 256]
The Tribunal then turned to consider some of the matters set out in Regulation 1.15A(3) commencing with “the nature of the person’s commitment to each other”. After noting that the couple married in November 2009 and lived together until April 2010 and that Ms Garcevic has not visited Mr Malique since the Tribunal considered the contact that the parties claimed to have kept at the telephone for which certain records were provided. It noted that the telephone communications were short with some exceptions and then stated:
“[87]…This is in contrast to regular telephone calls from the review applicant’s number to various numbers in Serbia and Montenegro for calls that were regularly over 30 minutes or even 1 hour in duration. The Tribunal has considered that these calls may be to other family members, or may also have been made by the review applicant’s daughter.
[88]The Tribunal finds that the evidence of the relatively few and short calls to the visa applicant in Bangladesh is not consistent with the level of contact one would expect in a genuine spousal relationship of the claimed duration and the evidence of the telephone accounts may in fact suggest that the review applicant seeks companionship and emotional support from a source other than the visa applicant.” ….[CB 257]
The Tribunal then discussed the evidence that the couple had given about their knowledge of each other and each other’s families concluding:
“[88]The Tribunal finds, on the evidence before it, that neither the review or visa applicant have demonstrated that they know important details about each other’s lives regarding past relationships and history and personal circumstances. The Tribunal finds that the parties have not demonstrated they know more than bare biographical details about each other’s family. Given that it is now more than six years since they claim to have met, the Tribunal considers the level of knowledge at the time of decision to be a significant indicator that they do not share a commitment to the relationship one would expect of a spousal relationship of the claimed duration.” [CB 258]
The Tribunal also considered the age and cultural differences between the couple and noted that it found no evidence of any attempt to bridge those gaps. It also expressed concern that Ms Garcevic had not developed any direct relationship with Mr Malique’s children or knew very much about his family:
“[89]The Tribunal did not get an impression that the review applicant has any particular interest in the visa applicant’s cultural or ethnic background or community. These concerns are another reason why the Tribunal is not satisfied that at the time of the application nor by the time of decision the nature of the commitment of the parties to the relationship is indicative of a genuine spousal relationship.” [CB 258]
Under the heading “The nature of the household” the Tribunal accepted that Mr Malique had moved in with Ms Garcevic after the marriage and lived in the apartment until his departure in April 2010. It accepted that Ms Garcevic had done the housework and that there was other general pooling of resources and a joint attitude to accounts:
“[91]Although Ms Vejselovic told the Tribunal she is supportive of the relationship and wants the visa applicant to return so that he can take over looking after her mother, the Tribunal notes that she also told the Tribunal that when the visa applicant previously lived with them, she was the one who attended to her mother’s health needs as the visa applicant was working full time. The review applicant gave evidence that when the visa applicant comes, they would sell her place and buy a bigger place, but that he would have to pay off the difference because she does not have any money. The review applicant did not indicate that she has made any plans or preparations for the arrival of the visa applicant’s children. On the basis of the evidence before it, the Tribunal does not consider the evidence as to nature of the household is strongly indicative of a genuine relationship at the time of decision.” [CB 259]
The Tribunal considered the evidence of Mr Lekic and Ms Petkovic noting:
“[93]The Tribunal accepts the statements as evidence that the parties represent themselves to others in a married relationship and were seen together in social settings in the period that the visa applicant was in Australia.” [CB 260]
But then turning to the evidence of Mr Alam the Tribunal concluded:
“[94]The Tribunal finds that whilst there is some evidence of social aspects of the relationship consistent with genuine relationships during the period prior to the date of application there is little evidence supportive of social aspects at the time of application or decision.” [CB 260]
The Tribunal concluded:
“[95]On balance, having regard to the totality of the evidence before it, and in light of the adverse credibility findings relating to the parties’ account of the inception and development of the relationship, the Tribunal is not satisfied that at the time of application and at the time of decision the visa applicant and review applicant have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requires of s.5F(2)(b) and s.5F(2)(c) for a married relationship.” [CB 260]
The applicants filed in court on 4 September 2012 an Amended Application seeking review of the Tribunal’s decision with which I shall deal. However, the applicants consider it important that these grounds are looked at against the background of the reason given by Ms Garcevic for entering into the relationship with Mr Malique. This was contained in a letter of 11 March 2010 found at [17] [CB 240] and extracted at [4] in these reasons. The applicants claim that this statement is important because it should have informed the Tribunal’s consideration of whether the parties had a mutual commitment to a shared life. The applicants referred the court to the decision of the Full Court Northrop, Wilcox and French JJ in Minister for Immigration & Anor v Dhillon [1990] FCA 144 in which the court opined at [11]:
“[11]The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street C.J. in R. v. Cahill(1978) 2 NSWLR 453 at p 458. As his Honour there pointed out, people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. Mr Jolly never addressed that question. Accordingly, it seems to us that he failed to take into account a relevant consideration. This was the view of the learned primary judge, his Honour concluding that Mr Jolly "did not duly consider the nature of a marriage relationship and misdirected himself as to the nature of the discretion to be exercised by him.”
The applicants submit that the entering into of a marriage for the purpose of the visa applicant willingly providing the review applicant with care and support is capable of supporting finding that the marriage is genuine and comes within the definition. As Keifel J said in Ozbunbar v Ministerfor Immigration & Anor (1998) 55 ALD 163 at [166 – 167]:
The central inquiry will usually be as to the parties’ commitment and, as Branson J pointed out in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Branson J, SG 8/95, 29 April 1996, unreported) while there may be some objective facts relevant to, or consistent with, mutual commitment, often times it will require consideration of the parties’ stated intentions. The true position will only be known to them. In these circumstances credibility will often assume importance. Reference to decided cases bears this out. “
As Branson J pointed out in Singh v Minister for Immigration & Anor (unreported) Federal Court Branson J No SG8 of 1995, 29 April 1996:
“Whilst there may be some objective facts relevant to or consistent with mutual commitment often at times it will require consideration of the parties stated intentions. The true position will only be known to them.”
In Sevim v Minister for Immigration & Anor (2001) 114 FCR 126 Gray J, after quoting from Ozbunbar:
“It would indicate that the Tribunal had taken the view that a genuine marriage required some parity of commitment between the parties, instead of a commitment by each to the other, as husband and wife, to the exclusion of others. There must be many marriages the parties to which have different levels or degrees of commitment, or in which the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of the test. As long as each party has a commitment of the kind described in the test, the marriage will be genuine even if such differences exist.”
Finally, the applicant referred me to the views of Street CJ in R v Cahill (1978) NSWLR 453 at [458]:
“Quite apart from matters of religious teaching, it is known that
marriages are at times contracted for reasons falling short of the more
generally recognized purposes of entering into that relationship. In
England in bygone days there were instances of celibate marriages being
contracted for the purpose of affecting rights of inheritance of titles. The
same situation exists both here and elsewhere in relation to marriages
affecting rights of property succession. At times, marriages were or are
entered into in connection with legitimation of existing or imminent issue
of a since-terminated intimate relationship. The purposes and motives,
equally as the hopes and anticipations, affecting two people when they
enter into a marriage, are susceptible of too wide a variation to render it
possible for the criminal law to classify some as offending, and the others
as according with what is meaninglessly described as “community
expectation”, in so far as this may travel beyond the specifically
prescribed concomitants of a marriage.”Although these matters are of particular relevance to the second ground of application the applicant believes they should inform the court’s decision on all grounds.
The first ground of application is:
“1.The Tribunal failed to comply with s359A of the Migration Act 1958 where particulars of information which formed part of the reasoning to affirm the decision was not drawn to the attention of the applicant at the conclusion of the hearing for comment. The information was that the applicant’s daughter “told the Tribunal that when the visa applicant previously lived with them, she was the one who attended to her mother’s health needs as the visa applicant was working full time.”” [emphasis in original]
The applicant submits that the portion of the Tribunal’s decision underlined above, and found at [91] CB259, represented information which was in its terms a rejection, denial or undermining of the applicant’s claim to be in a married relationship with her husband; SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190[3] at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. It was thus information which was required to be given to the applicant for comment pursuant to the provisions of s.359A, the relevant provisions of which are:
[3] “SZBYR”
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
The respondent argues that the daughter’s evidence did not in its terms amount to a rejection, denial or undermining on a specific level of the applicant’s claims to be in a genuine spousal relationship. I do not accept this submission. The sentence appears in the findings and reasons of the Tribunal’s decision under the heading “The nature of the household”. If it was of no importance the Tribunal would not have included it. Read with the previous sentence it seems to me to be indicating doubt on the part of the Tribunal that the daughter’s evidence could be relied upon. The respondent also submits that this portion of the Tribunal’s reasons was not “the reason or part of the reason for affirming the decision that is under review”. That is a matter which depends upon the criteria for the making of the decision in the first place SZBYR at [17]. In my view this does go to that question which is whether or not the couple had a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them was genuine. The Tribunal’s comments seem to indicate that either it did not accept the daughter’s support for the genuineness of the commitment or it did not accept the review applicant’s claim that Mr Malique would attend to her health needs. As such it seems to me to be information that would come within s.359A unless it was information that the applicant had given for the purposes of the application for review and thus excluded by s.359A(4)(b).
The authorities in relation to the similar provision s.424A(3)(b) are in conflict as to whether information gleaned from a witness appearing in favour of an applicant is information provided by the applicant. Such inconsistency was identified by Lander J in MZXGB v Minister for Immigration and Citizenship [2007] FCA 392 in which his Honour referred to the apparently conflicting decisions of Gray J in VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504 and to the obiter in Lee J’s judgment in Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16. In VBAM, Gray J held at [44] that the evidence given by three witnesses for the applicant was information that the applicant gave for the purpose of the application and hence that the s.424A(3)(b) exception applied. In M164, in which evidence was received by the Tribunal from the applicant’s husband, Lee J considered s.424A, however, only as obiter, and opined:
“98 It is not clear whether the Tribunal regarded that information as part of the reason why the Tribunal would affirm the delegate’s decision to refuse the grant of a protection visa to the appellant. In its reasons the Tribunal merely stated that the evidence of the appellant and her husband was "inconsistent in some key respects".
99 If the Tribunal did rely on the alleged inconsistency as the reason, or part of the reason, for making its decision then, as confirmed in SAAP, the Tribunal was bound by s 424A of the Act to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, and to invite the appellant to respond thereto.
100 It was irrelevant to that obligation that the appellant, or her migration agent, was present when the husband provided that material to the Tribunal. It was necessary for the Tribunal to give written notice to the appellant of how the Tribunal perceived that information would be the reason, or part of the reason, for affirming the delegate’s decision and in the absence of that notice the decision made by the Tribunal was not authorised by the Act. (See: SAAP per McHugh J at [77]).”
This decision was in turn followed by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733, where her Honour found that the Tribunal was required by s.424A to alert the applicant to the negative inference it had drawn from the evidence given by the applicant’s father.
The factual scenario in MZXGB allowed Lander J to distinguish that case from those authorities. The applicants were husband and wife who had lodged separate applications but the husband’s evidence in his application was, by consent, applied to the wife’s application. His Honour held (at [81-82]) that:
“81 The purpose of s 424A is to require the Tribunal to bring to an applicant’s attention all of the matters which might be a reason or part of a reason for affirming a decision under review. The purpose of s 424A(3)(b) is to relieve the Tribunal of that obligation where the information has been given to the Tribunal for the purpose of the application. In my opinion, this information was not given to the Tribunal by the applicant for the purpose of the application. It was information which was in the possession of the Tribunal which the second appellant consented to the Tribunal using.
82 In my opinion, s 424A(3)(b) does not apply and thereby the Tribunal has failed to comply with s 424A(1) and (2) of the Act.”
The issue was again enlivened in SZEWL v Minister for Immigration and Citizenship [2009] FCA 209 before Rares J who also referred to the conflicting nature of the above authorities. In that case, Rares J. considered s.424A in light of s.426 and the fact it was the Tribunal, and not the applicant, who called witnesses. His Honour opined (at [44-45]):
“I am of the firm opinion that on the proper construction of the Act, information given orally by a witness, other than the applicant for review, cannot be “information” that the applicant gave for the purpose of the application for review within the meaning of the exception of s 424A(3)(b).
[45] In my opinion, the statutory scheme does not permit that construction. First, a witness is not “information”. The fact that an applicant for review asked the tribunal to take evidence from a person cannot make everything that the person said, if the tribunal called him or her to give evidence, information that the applicant gave to the tribunal. Self-evidently, the witness gave the information. It is a truism in litigation that there is no property in a witness. Moreover, the procedures of the tribunal are inquisitorial, not adversarial: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486 at 491 [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. It would be incongruous to hold that s 424A(3)(b) characterised everything that might be said by a witness nominated by an applicant for review as a person whom he or she wished the tribunal to call to give evidence as being “information … that the applicant gave for the purpose of the application for review”. The only “information” that could possibly be in that category would be the witness’s name and contact details. What the witness came to say in evidence would be information that the witness, not the applicant for review, gave to the tribunal. Any other construction of the section would make no sense. The applicant for review, as s 426(3) provides expressly, has no right to require the tribunal to call anybody to give evidence, apart from himself or herself.”
In my opinion, there is much force in the reasoning of Rares J. It is in keeping with the central tenet of procedural fairness that an applicant should be made aware of adverse information which is credible, relevant and significant to the Tribunal’s decision. I believe that the same reasoning must apply in the present case. The evidence given by the applicant’s daughter should not be taken to have been information provided by the applicant, and, therefore, the Tribunal breached the requirements of s.359A and in doing so fell into jurisdictional error.
The second ground of application is:
“[2]The Tribunal erred in law by misconstruing s 5F(2) of the Migration Act 1958 where an apparent misstatement of law affected the Tribunals subsequent consideration of the merits of the applicant’s case. The error was in stating that “a need for companionship” and “assistance with … health care” could not without more constitute a married relationship, and that what was required was a genuine spousal relationship”. Further, the Tribunal failed to respond to a substantial argument articulated by the applicant, namely, that the applicant’s need for care and her husband’s willingness to provide it gave rise to a relationship between them that was genuine and continuing and which involved particular commitments by each of them to a particular kind of shared life.”
In the applicant’s written submissions they say of this ground:
“[35]The task of the Tribunal was to review the application before it by reference to the correct legal principles, correctly applied.
[36]In its decision record, the Tribunal correctly identified s5F of the Act and reg 1.15A of the Regulations as the governing legislative provisions (CB 237-238 [9], [11]). The Tribunal did not refer to any case law.
[37]Despite references to the terms of those legislative provisions, a further and more strict legal hurdle was nevertheless identified by the Tribunal in its s 359A letter (CB 191):
“The evidence of Ms Vejselovic regarding your need for assistance with your health care, and the evidence of Mr Lekic above, is relevant because of relied on it [sic] may lead the Tribunal to find that you have a need for companionship and assistance with your health care, but in the absence of anything else, the Tribunal might conclude that this is not in the nature of a genuine spousal relationship as that term is defined in migration law.”
[38]This statement of law was repeated in the Tribunal’s decision record (CB 252 [67]) without any qualification. It reveals that the Tribunal took a wrong approach.”
The applicants argue that the approach taken by the Tribunal was wrong because on any reading of its reasons the relevant statutory concepts have been conflated. The term “genuine spousal relationship” is not the product of the matters held to be for consideration in the Regulations. They are merely aides and guides to a decision as to whether or not the relationship exists. The applicants say secondly that there is no basis for a conclusion that a relationship founded on a need for companionship and assistance with health care cannot without more constitute a marriage relationship within the meaning of s.5F of the Act and thirdly they argue that the Tribunal did not respond to the argument articulated by the review applicant that the nature of the shared life to which she and her husband had committed was one which involved a genuine spousal relationship. The applicants submit and I accept that the cases to which I was referred still represent the law as to what might constitute a married relationship within the meaning of s.5F. The respondent counters:
“The Tribunal did no more in its letter than indicate it “might conclude” that the first applicant’s “need for companionship and assistance with [her] health care” in the absence of anything else may not be in the nature of a “genuine spousal relationship.”
I accept the respondent’s argument that the need for companionship and assistance with health care in the absence of anything else might not be in the nature of a genuine spousal relationship but I have some concerns about the way in which the Tribunal has dealt with “anything else”. It has placed importance on things which might not be important to a genuine spousal relationship such as the review applicant’s knowledge of the visa applicant’s family and children. There are plenty of stepmothers, even outside of fairy stories, who have little interest or affection for their stepchildren but this does not mean that their relationship with their husbands is not a married relationship which could fall within s.5F. There are many marriages in which the wife speaks at far greater length to her mother or sister at the telephone than to her husband but that does not take the relationship outside the definition and there are plenty of relationships in which the parties do not socialise outside their immediate family. The real issue is whether these complaints put by the applicants constitute a request for merits review of the Tribunal’s decision rather than pointing to an error of law. I think this is what is being requested. The matters which the Tribunal here considered important may not have been considered important by another Tribunal and the weight which is given to them is very much a matter for the Tribunal and however much a court may disagree there is no error of law to be found.
The third ground of application is:
“[3]The Tribunal failed to have regard to a mandatory consideration, namely, “whether the persons see the relationship as a long-term one.”
The Tribunal most certainly did raise this matter with the review applicant. At [41] [CB 245] the Tribunal states:
“[41]When asked if she considers the relationship long term, she stated that as she has buried two husbands she thinks he will be the one to bury her.”
The issue was clearly in the Tribunal’s mind at that point and the question is whether it was necessary to make further comment about it in the decision record. The applicants argue that it was and that the failure to deal with it indicated a breach of s.368(1)(c) by not setting out its findings on a material question of fact. The respondent relies on what fell from the Full Court in Zhang v Minister for Immigration & Anor [2005] FCAFC 30 at [20]:
“[20]In its reasons, the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3). However, it did consider evidence adduced by the appellant which appears to fall into each of the specified issues. In sequence, it considered evidence of the couple’s financial arrangements (taking into account the appellant’s oral evidence as to their arrangements and documentary evidence such as bank and superannuation statements), and then of their household relationship including the circumstances of their living arrangements such as the couple’s shared responsibility for caring for Mr Czapla’s mother. It also addressed the evidence as to the social aspects of the relationship, including that of the sister-in-law and ‘a number of photos and statutory declarations by mutual friends and the nominator’s mother attesting to the genuineness of the relationship’ the appellant had provided as well as two more recent statutory declarations of Mr Czapla’s mother and of the owner of a grocery store in Sefton. Those matters point clearly to the Tribunal having addressed each of the matters which reg. 1.15A(3) required, including that identified by reg 1.15A(3)(c).”
The respondents argue that there were more determinative matters such as the credibility of the applicants and their commitment to the relationship than whether or not the relationship was seen as long term. The general findings subsumed any necessity to make a specific finding in relation to that aspect of the matter. Again, being satisfied that the matter was is in the mind of the Tribunal I am unable to say that there was a jurisdictional error in the fact that it was not further mentioned.
The fourth ground of application was:
“4.The Tribunal’s finding that “the review applicant seeks companionship and emotional support from a source other than the visa applicant” had no foundation in the evidence.”
The relevant part of the Tribunal’s decision record at [87] and [88] has already been extracted at [17] of these reasons. The comment made by the Tribunal that the evidence of the telephone accounts may in fact suggest that the review applicant seeks companionship and emotional support from a source other than the visa applicant is speculative. It is clear that the Tribunal didn’t ask the review applicant who she was speaking to when the calls were made and does not know who made them. But if the findings are looked at carefully it will be seen that the really relevant matter was that the calls to Bangladesh were short and the Tribunal believed that they were not consistent with the level of contact one would expect in a genuine spousal relationship of the claimed duration. Whatever one may think of this finding it was one that was available to the Tribunal on the evidence and cannot be impugned. The throw away speculative comment does not to my mind constitute a jurisdictional error on the part of the Tribunal. Whilst it had no foundation in the evidence it does not seem to have been a determinative matter.
Having concluded that the Tribunal erred in the manner described in [32] of these reasons, I am satisfied that the court should make the order sought in the application and remit the matter for rehearing according to law. The respondent should also pay the applicant’s costs assessed in the sum of $6,471.00.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 11 October 2012
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