Halkic v Minister for Immigration
[2006] FMCA 1646
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALKIC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1646 |
| MIGRATION – Migration Review Tribunal – whether Tribunal required applicant to meet higher standard than required by regulations – challenge to merits of decision. MIGRATION – Migration Review Tribunal – s.359a – statutory declaration made by third party witness submitted to Tribunal by applicant’s agent – falls within exception in s.359a(4)(b) – information provided by the applicant. MIGRATION – Migration Review Tribunal – regulation 1.15a of the Migration Regulations 1994 – whether invalid – whether redefines concept of “spouse” inconsistently with the Marriage Act 1961 – no inconsistency – no invalidity. |
| Marriage Act 1961, s.5 Migration Regulations 1994, reg.1.15a |
| Khogali v Minster for Immigration and Multicultural Affairs [1999] FCA 1076 Kopalapillai v Minster for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Nejad v Minster for Immigration and Multicultural Affairs [2001] FCA 1399 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZCNG v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 505 SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 SZHRD v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 551 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 | ||
| Applicant: | MEHMED HALKIC | |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 505 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 2 November 2006 |
| Date of Last Submission: | 2 November 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Zeljko Stojakovic |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 13 April 2006 is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 505 of 2006
| MEHMED HALKIC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 22 March 2006 refusing an application for a provisional partner visa.
The applicant is a 63 year old citizen of Australia. Ms Kado Halkic is a 38 year old citizen of Bosnia-Herzegovina. The applicant and
Ms Halkic were married in Bosnia-Herzegovina on 14 August 2003. On 1 September 2003, Ms Halkic applied for a provisional partner visa naming the applicant as her sponsor. On 26 March 2004, a delegate of the first respondent refused to grant Ms Halkic a provisional partner visa.
On 13 May 2004, the applicant lodged with the Tribunal an application for review of the delegate’s decision. By letter dated 18 February 2005, the Tribunal invited the applicant to provide additional information about his relationship with Ms Halkic. Under cover of letter dated 9 March 2005, the applicant provided further material to the Tribunal including a statutory declaration by Aziz Mustaferovic. On 1 April 2005, the applicant and Ms Halkic gave oral evidence to the Tribunal with the assistance of an interpreter. Ms Halkic gave evidence by telephone. On 31 May 2005, the Tribunal handed down its decision, affirming the decision of the delegate.
On 28 June 2005, the applicant filed in the Federal Court an application seeking judicial review of the Tribunal’s decision dated 31 May 2005. On 12 October 2005, consent orders were made by Heerey J setting aside the decision and remitting the matter to the Tribunal for further consideration on the basis that the first respondent had identified an error of the type described in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.
By letter dated 11 November 2005, the applicant’s legal representative made additional written submissions to the Tribunal. On 16 February 2006, the applicant and Ms Halkic gave evidence to the Tribunal with the assistance of an interpreter. They were represented by a migration agent. The applicant’s son and a friend of the applicant also gave evidence. By letter dated 21 February 2006, and pursuant to s.359a of the Migration Act 1958 (“the Act”), the Tribunal invited the applicant to comment on inconsistencies in information provided by the applicant and Ms Halkic to the Tribunal. On 2 March 2006, the applicant’s agent forwarded a response to the invitation to comment.
On 22 March 2006, the Tribunal handed down its second decision affirming the delegate’s decision. On 13 April 2006, the applicant filed an application in this court seeking judicial review of the Tribunal’s decision. On 27 April 2006, the first respondent filed a response to the application. Contentions of fact and law were filed by the applicant on 19 July 2006, and by the first respondent on 10 August 2006.
Initial Claims
In a statement dated 29 August 2003 lodged with the partner visa application, the applicant said:
I first knew of my wife ten months ago through my sister-in-law. She would often mention Kada when we spoke on the phone.
I became very interested when she sent me a letter and her photograph in one of my sister-in-laws letters. We exchanged several letters and photos. We had phone conversations often which my sister-in-law organised from her phone as Kada has no telephone.
Our relationship became serious and I went to Bosnia to be with her. We were unseparable and married three months later.
Proceedings before the First Tribunal
In support of his application to the Tribunal, the applicant submitted a number of documents including a statutory declaration made by Aziz Muzaferovic on 4 May 2004, which said:
I…have known Mehmet Halkic since 1972. Mehmet is a very caring & honest person. He has personally helped me over the years in many different ways. Over the 30 years, Mehmed has always worked very hard, whether it be at Dunlop Pacific or with his own personal/family life. He has always helped in the community, whether it be helping his neighbours or the soccer community. People in the soccer community rate him highly. During last years visit to Bosnia, I met up with Mehmed & Kado at a restaurant (Kostelski Buk in Bosanska Krupa). I have met Kado & my personal opinion of Kado is that she is very honest & caring person. I can say that the relationship between Mehmed & Kado to be genuine. I would love to see Mehmed & Kado united here in Australia as soon as possible. If you would like to contact me you can call me on [a certain telephone number] and ask me for any further details.
At the hearing before the Tribunal on 1 April 2005, Ms Halkic gave evidence by telephone which was summarised by the Tribunal as follows:
[18] The visa applicant stated that it was 2am local time in Bosnia Herzegovina. She stated that she was introduced to the review applicant by his daughter-in-law, who was a friend of the mother’s. She stated that they knew the review applicant was looking for a wife, and she was also thinking of marrying again and starting a new life. The visa applicant stated that they exchanged a few letters and spoke on the telephone at the review applicant’s daughter-in-law’s home and exchanged photographs. She stated that they discussed marriage before the review applicant came to Bosnia, and that they agreed to marry on
15 May 2003. She later stated that they agreed to the marriage on 16 May 2003, which was the first time they were alone together. The visa applicant stated that they agreed to marry on their first meeting because they had seen photographs of each other and liked each other. She stated that they met every second day for dinner or at the review applicant’s son’s home. The visa applicant stated that she had also been told about the review applicant by his daughter-m-law, and wanted a peaceful life with him after having been hurt during her first marriage. She stated that the age difference is not a problem for her and they both want to have another child together.
[19] The visa applicant stated that she introduced the review applicant to her relatives and introduced the two families to each other. The visa applicant stated that she did not introduce the review applicant to her son because her former husband would not permit a meeting, although the visa applicant has contact with her son every three weeks. She stated that her son will not be migrating with her because his father would not permit it.
[20] The visa applicant stated that the review applicant organised and paid for their wedding, which was attended by
26 close family members. The visa applicant was advised that she stated at her interview with the delegate that there were
100 or 200 people at the wedding. She stated that she did not know what to say at her interview because the delegate asked her so many questions and she was very nervous.
[21] The visa applicant stated that she began living with the review applicant when he arrived in Bosnia. She then stated that she stayed often at the review applicant’s daughter-in-law’s home. The visa applicant later stated that she began living with the review applicant after the marriage. She stated that they began intimate relations shortly after the review applicant arrived in Bosnia. The visa applicant stated that she continues to live with the review applicant’s daughter-in-law and does not work because there is no work available. She stated that the review applicant sends money to support her and the entire household and she uses the money to buy necessities for all of them.
The Tribunal’s summary of the evidence given by the applicant is as follows:
[24] The review applicant stated that he and the visa applicant exchanged two letters and spoke a few times on the telephone before he travelled to Bosnia in May 2003 and he fell in love with the visa applicant when they first met on 17 May 2003. He stated that he already knew that she was a good person and they spoke of marriage on that day but did not agree to marry until two weeks later, after he met her family. The review applicant stated that they spent nearly every day together after meeting on 17 May 2003 and they were able be alone together at the visa applicant’s house or at a hotel. The review applicant stated that the person described as his daughter-in-law is his son’s sister in law, not his son’s wife.
[25] The review applicant stated that although the visa applicant is many years younger than him, she will not find a better husband in Bosnia. He stated that the wedding was a small celebration because his sister had died the week before and it would have been inappropriate to hold a large wedding. He stated that his family attended.
[26] The review applicant stated that the visa applicant lives at his brother’s house and that he supports the entire household because none of them is working. He stated that he sends the money to the visa applicant and she buys things for the household. The review applicant stated that he has not returned to visit the visa applicant because there are eight people sharing a house and the conditions are not good. He stated that he has not thought of staying in a hotel because they are too expensive.
[27] The review applicant stated his daughter visited Bosnia in 2004 and took gifts for the visa applicant and met with her three times. He stated that his son has not travelled to Bosnia and has not spoken to the visa applicant. The review applicant stated that he and the visa applicant want to have a child together.
Claims before the second Tribunal
At the second Tribunal hearing, both the applicant and Ms Halkic gave evidence. The applicant gave evidence first and was questioned about inconsistencies between his evidence and Ms Halkic’s evidence as given to the first Tribunal. The Tribunal’s summary of the exchange is as follows:
[27] Asked about the apparent inconsistency between his evidence and the visa applicant’s evidence to the first Tribunal (he said that she was living at his brother’s place whereas she said that she was living at his daughter in law’s place) he responded that the confusion arose as a result of a mistranslation. He stated that, in Bosnian, “daughter-in-law” is the same word as “sister-in-law”. There was no inconsistency because the visa applicant was saying that she lived at his sister-in-law’s place and he was saying she lived at his brother’s home. It is the same place. Although his brother is now dead he still refers to the home as his brother’s home.
Ms Halkic then gave evidence, which the Tribunal reported as follows:
[29] The visa applicant then gave evidence. Her evidence was generally consistent with that given by the review applicant. There were, however, two inconsistencies. First she stated that the review applicant had three brothers. Asked to confirm that he only had three brothers she confirmed that he only had three brothers (cf the review applicant’s evidence that he has 4 brothers). Asked whether he had a brother in Germany she stated that he did not (he stated that one of his brothers lived in Germany). Second she stated that they celebrated their wedding at a restaurant called Lalic (cf the review applicant’s evidence was that is was at a restaurant called Kostelski Buc).
[30] Asked how many guests attended the wedding celebration she stated 26. The Tribunal observed that when asked the same question as an interview on 16 December 2003 she had stated 200 then said 100. She told the Tribunal that she thought the officer was asking her how many people were at the restaurant at the time rather than how many guests attended their party.
The applicant was then asked by the Tribunal to comment on the two inconsistencies, saying at [31] that:
He told the Tribunal that he had made a mistake about the number of brothers he has – 2 had died and the brother whom he had said was living in Germany had returned to Bosnia so the visa applicant was correct in saying he had 3 brothers. He told the Tribunal that the restaurant at which they celebrated their wedding was called Lalic at the time of the wedding but has changed its name to Kostelski Buc.
The Tribunal also asked the applicant why he had not visited his wife for over two and a half years. The Tribunal’s summary of the applicant’s response is as follows:
[26] First, he was expecting to receive some paperwork in relation to the visa application and did not want to go to the inconvenience of travelling to Bosnia only to have to return to Australia to attend paperwork two weeks later. Second, his brother’s home is a two-bedroom property with seven people living there with inadequate hot water (water bottle with 20 litre capacity) and unreliable electricity. He migrated to Australia at the age of 16 and is not used to living in such cramped, uncomfortable conditions. Third, he was expecting the visa applicant to arrive in Australia at any time. The Tribunal observed that, having retired in 2000 and having considerable financial resources and no liabilities, he had both the time and the funds to travel to Bosnia to spend time with the visa applicant. He then added a fourth and fifth reason, namely, that he had left his home unattended in 2003 and someone had broken in and that he was spending money on telephone calls and remittances to the visa applicant. The visa applicant told him she would like him to come to Bosnia but they were both aware that he had to attend to the procedures involved in making the visa application. The Tribunal asked whether his (sic) sought legal advice when they were notified (in March 2004) that the Department had rejected the application. He told the Tribunal that he consulted a solicitor (his current agent) immediately and was advised that it would take six or 12 months for the application for review to be heard by the Tribunal. Asked why he did not take the opportunity to visit during that period he reiterated that it’s hard for him to tolerate the uncomfortable conditions at his brother’s place (“that is the first reason”) and that he thought that maybe the Tribunal procedures would be quicker because, notwithstanding his agent’s advice he had heard from other people whose cases had come on quickly that it could be listed for hearing by the Tribunal in as little as 2 months. The Tribunal observed that his failure to visit might be seen as a lack of commitment to the visa applicant. He responded that he has demonstrated his commitment by the amount of money he has sent her.
Section 359a Notice
By letter dated 21 February 2006, the Tribunal invited the applicant to comment on inconsistencies in information provided by him and
Ms Halkic to the Tribunal and pursuant to s.359a of the Act.
Three inconsistencies were identified, namely:
·At the hearing you gave evidence that you have 3 brothers in Bosnia and a brother in Germany and the visa applicant gave evidence that you have 3 brothers in Bosnia only;
·You gave evidence that you celebrated your wedding at a restaurant called Kostelski Buk and the visa applicant gave evidence that you celebrated your wedding at a restaurant called Valic; and
·At the hearing you and the visa applicant gave evidence that there were 26 guests at your wedding whereas at the interview in December 2003 the visa applicant said there were 200 and then said 100 guests.
A response in the form of a detailed statutory declaration made by the applicant on 2 March 2006 was forwarded by the applicant to the Tribunal on that date.
Second Tribunal’s Reasons for Decision
In its reasons for decision, the Tribunal accepted the applicant and
Ms Halkic had been and remained validly married to each other.
The Tribunal then considered whether the applicant and Ms Halkic were spouses of each other at the time of the application and at the time of the decision. The Tribunal noted that reg 1.15a of the Migration Regulations 1994 (“the Regulations”) contains the test to be applied in determining whether a person is the “spouse” of another, and sets out the matters which the Tribunal must take into consideration.
The Tribunal noted that those matters include all of the circumstances of the relationship, and, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons’ commitment to each other.
The Tribunal considered each of those matters as follows:
The financial aspects of the relationship
[43] The review applicant provided documentary evidence of a number of money transfers from him to the visa applicant from September 2003 to January 2006. The Tribunal accepts that he has provided some financial assistance to the visa applicant.
The nature of the household
[44] The review applicant indicated that he and the visa applicant spent a lot of time together during his visit in 2003, the visa applicant moved into his brother’s place after the wedding on 14 August 2003, they lived there together until he returned to Australia on 28 August 2003 and that she has remained in that household ever since the marriage. The apparent inconsistencies in the evidence to the first Tribunal (in which he said that she was living at his brother’s place and that the reference to his daughter in law was a reference to his sons’ sister in law whereas she said that she was living at his daughter in law’s place) was the result of confusion and mistranslations. The Tribunal accepts that the parties may have spent considerable time together before their wedding and resided together for 2 weeks between their wedding on 14 August 2003 and the review applicant’s return to Australia on 28 August 2003. The Tribunal also notes that policy advice in PAM 3 suggests that living apart for reasons beyond the control of the parties, for example, visa considerations, need not preclude the Tribunal from reaching a favourable outcome. For reasons further explained below, however, the Tribunal is not satisfied that the parties were at the time of application or any time afterwards in a spouse relationship as defined.
The social aspects of the relationship
[45] The parties provided statutory declarations from the review applicant’s adult children; his son gave evidence at the Tribunal hearing and his daughter who is residing in Bosnia provided a further statutory declaration. The review applicant’s children indicated that the parties are genuinely committed to each other. The Tribunal also notes statutory declarations and letters of support from the review applicant’s friends, real estate agents and doctors. Only one of the authors of these documents (Aziz Muzaferovic) claims to have seen the parties together as a couple.
[46] The Tribunal notes the visa applicant gave inconsistent evidence about the wedding (200/100 guests when asked by the Department cf 26 guests when asked by the Tribunal) and the review applicant said they celebrated at “Kostelski Buc” whereas the visa applicant said they celebrated at “Lalic”. The Tribunal also notes that Mr/Ms Muzaferovic, who claims to have known the review applicant since 1972, states that he “met up with Mehmed and Kado at a restaurant (Kostelski Buc)” rather than that he attended a wedding celebration for them there (the Tribunal’s italics). It is reasonable to expect that a friend of
30 years who was in Bosnia at the time would have been invited to the wedding and would have mentioned the wedding in his statutory declaration in support. The Tribunal notes the parties’ explanation for the inconsistent evidence and accepts that Mr/Ms Muzaferovic’ s failure to mention their wedding may have been an oversight (or he may have had reasons for not attending the wedding and met the parties at the restaurant on another night). However, the inconsistent evidence and Mr/Ms Muzaferovic’s failure to mention their wedding casts doubt on the credibility of the evidence in relation to the wedding and whether it took place in the manner described. The Tribunal also notes the inconsistent evidence about the review applicant’s family composition and the implausible explanation for that inconsistency (that the review applicant had forgotten that a brother had died and that the visa applicant had not mentioned to the review applicant that another of his brothers had returned from Germany to Bosnia).
[47] While the Tribunal accepts that the review applicant’s children support the union the evidence as to the social dimension of the relationship is equivocal.
The nature of the persons’ commitment to each other
[48] The review applicant provided documentary evidence that he has made telephone calls to the visa applicant’s number since early 2003. The Tribunal accepts that the parties have maintained contact with each other.
[49] However, the Tribunal also notes that the review applicant has not visited the visa applicant again for a period of 2 and a half years (since August 2003). His reasons for not doing so are summarised above and are primarily that he found staying at his brother’s home uncomfortable, thought the visa applicant’s arrival in Australia was imminent and had to attend to paperwork associated with the application, review and litigation. The review applicant’s principal reason for not visiting her, because his brother’s place is uncomfortable, reflects a lack of commitment contemplated by Regulation 1.15A of the Regulations. While he would, not have wanted to waste money if he reasonably believed that the visa applicant was about to join him in Australia following the Department’s refusal he was advised by his agent that it might take six to 12 months for the Tribunal to determine his application and there was no basis for his attaching more weight to advice he claims to have received from others that it might occur more expeditiously than that. The Tribunal notes that the review applicant is retired, is debt free and has adult children and has the time and financial resources to visit the visa applicant. Nor did he have to be physically present in Australia at all times to attend to paperwork associated with the application, review and litigation as he has been represented by an agent.
[50] The Tribunal considers that a genuinely committed person in the review applicant’s position would have visited the visa applicant since August 2003. The Tribunal understands that the review applicant had in August 2003 returned from an extended stay Bosnia (sic) and wanted to organise the visa application. This may explain why he did not visit the visa applicant for six or 12 mouths following his return to Australia in August 2003. The Tribunal notes that he has demonstrated some commitment to the visa applicant by telephoning and corresponding and remitting funds to her and pursuing this application to the Tribunal, Federal Court and to the Tribunal again. However on the parties’ evidence they fell in love in May 2003 and were married on 14 August 2003. It is reasonable to expect that a person who had only spent 2 weeks with his wife (14 August - 28 August 2003) would be sufficiently motivated to see her within a few months or even within a year and not allow 2 and a half years to elapse.
[51] The Tribunal considers that the review applicant’s failure to visit the visa applicant undermines both his claim that, at the time application (sic), he was committed to a future with the visa applicant and that at the time of decision he is committed to her. The Tribunal finds that although the review applicant has shown commitment to securing a favourable decision by the Tribunal he has not demonstrated a level of commitment to the visa applicant reasonably expected of a party to a genuine relationship.
The Law
Regulation 1.15a of the Regulations provides as follows:
1.15A Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ae)a Partner (Provisional) (Class UF) visa; or
…
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
Grounds of Application
The application filed on 13 April 2006 contained four grounds:
1.The Tribunal fell into jurisdictional error in that it denied procedural fairness to the applicant.
Particulars
(a)The Tribunal failed to provide adequate and accurate interpreting for the applicant at the hearing of the matter conducted by the Tribunal;
(b)The Tribunal made adverse findings against the credit of the applicant because of the failure of a witness to mention having attended the applicant’s wedding. The Tribunal gave the applicant no notice that the absence of the witness from the applicant’s wedding was a matter the Tribunal would regard as adverse to the application and gave the applicant no opportunity to respond. If the applicant had been given the opportunity to respond he would have provided an explanation for the absence of this witness from his wedding. The applicant will provide to the Court evidence of the response he could have made to the Tribunal.
2.The Tribunal fell into jurisdictional error in acting in breach of its obligations under the law.
Particulars
(a)The Tribunal in breach of Part 5 of the Migration Act 1958 failed to provide the applicant with a proper opportunity at a hearing to present evidence and argument in relation to his application in that the Tribunal failed to provide proper or adequate interpreting at the hearing.
(b)The Tribunal failed in breach of section 359A of the Migration Act 1958 to provide to the applicant in writing particulars of the statutory declaration from the witness named at paragraph 46 of the Tribunal’s Reasons and failed to explain to the applicant why this was relevant to the Review and failed to give the applicant an opportunity to respond to the issue.
3.The Tribunal fell into jurisdictional error in that it failed to take account of relevant material or considerations.
Particulars
(a)The Tribunal failed to advert to the applicant’s claim that his parents were dead (Tribunal Decision para 23).
(b)The Tribunal failed to consider all relevant matters under Regulation 1.5A (sic). Further particulars may be given after the applicant has obtained his filed (sic) from the Tribunal.
4.The Tribunal fell into jurisdictional error in that it misinterpreted the law or failed to apply the law relevant to the application before it.
Particulars
(a)The Tribunal applied a higher standard for assessing a married relationship than that prescribed by Regulation 1.5A (sic) of the Migration Regulations 1994;
(b)The Tribunal applied Regulation 1.15A of the Migration Regulations 1994 but that regulation is invalid to the extent that it prescribes as a standard for assessing a married relationship any standard beyond the requirement that persons are in a married relationship if they are married to each other under a marriage that is recognised as valid for the purposes of the Act under Regulation 1.15(1A)(a).
In the applicant’s written contentions, the applicant stated that he made no submissions regarding the standard of interpreting at the hearing before the Tribunal. That is, the applicant indicated in effect that he did not press grounds 1(a) and 2(a) though he did not formally withdraw them. I am aware of no basis on which those grounds could be sustained. I conclude that they are not made out.
Similarly, in the applicant’s written contentions, he stated that he made no submissions in relation to ground 3. Again, I am aware of no basis on which that ground could be sustained and I conclude that it is not made out.
At the hearing before this court, the applicant by his counsel indicated that he accepted that the Federal Magistrates Court was bound by the Full Federal Court decision in the matter of SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
That decision is to the effect that Division 5 of Part 5 of the Act constitutes a statutory code which excludes the common law rules of procedural fairness. In view of that decision, the applicant indicated that he wished to reserve his rights in relation to the natural justice point in the event of an appeal from this decision but otherwise did not press Ground 1(b) of the application except to the extent that he could do so pursuant to s.359a of the Act.In the end, the only grounds pressed by the applicant at the hearing before this court were those set out in paragraphs 1(b), 2(b), 4(a) and 4(b) of the application. Grounds 1(b) and 2(b) were argued together on the basis that they gave rise to an alleged breach of s.359a of the Act, with the result that three points were argued by the applicant at the hearing. Firstly, it was argued that the Tribunal imposed a higher standard for the assessment of the relationship between the applicant and Ms Halkic than was required by the Regulations. Secondly, it was argued that there was a breach of s.359a of the Act. Thirdly, the applicant argued that reg.1.15a of the Regulations was invalid.
Those points will be dealt with in the order that they were addressed by the applicant at the hearing.
Ground 1: The alleged higher standard
The applicant contended that, in stating that, “the Tribunal considers that a genuinely committed person in the review applicant’s position would have visited the visa applicant since August 2003”, the Tribunal imposed a higher standard for the assessment of the whether the applicant and Ms Halkic were in a genuine relationship than reg.1.15a of the Regulations required. In his written submissions on this point, the applicant said the following:
The Tribunal directed its attention to whether the applicant and his wife were in a “genuine relationship”(CB 317.2). In all the circumstances of the case, particularly the level of financial contribution made by the applicant, the age difference between the applicant and his wife, and the absence of any finding by the Tribunal that either the applicant or his wife was a dishonest witness, it is submitted that in all the cirumstances of the case the Tribunal was assessing the applicant and his wife according to a standard higher than it (sic) required by Regulation 1.15A of the Regulations.
It is submitted that a finding that the Tribunal is not satisfied that parties in a genuine relationship (sic) amounts to a finding that the Tribunal is not satisfied of the honesty of the applicants in stating that they are in a married relationship. There was no finding of dishonesty made by the Tribunal in the present case. It therefore follows that the Tribunal has been applying a more stringent standard to assessing the criterion under Regulation 1.15A(1A)(b)(ii).
In oral submissions, the applicant contended that, given the matters that the Tribunal accepted or found to be equivocal, the Tribunal’s finding that there was no genuine commitment led to the inference that the Tribunal required that the relationship in this case to fit a pattern that is higher than the Regulations require. In response to a question from the court as to whether the applicant’s contentions amounted to any more than an attack on the merits of the decision, the applicant submitted that there was a fine line between challenging the merits of the decision and challenging the decision on the grounds that the correct test was not applied. The applicant submitted that given that there was a major finding by the Tribunal that the applicant had financially assisted his wife and given that the social dimension of the relationship was found to be equivocal, the Tribunal could only have reached its conclusion if it had applied a more stringent test than the Regulations imposed.
It was submitted that the applicant was not seeking a review on the merits but was asking the court to use the Tribunal’s own findings to determine whether the correct test had been applied.The applicant noted that reg.1.15a(1A)(b)(ii) of the Regulations requires that the relationship between the applicant and his wife be “genuine and continuing”. The applicant noted that the Tribunal had not said that the relationship was not continuing but seemed to have thought that to be in a genuine relationship the applicant should have visited Ms Halkic at some point in the two and a half years between their marriage and the date of the Tribunal’s decision.
The first respondent submitted that the applicant was merely asking the court to “reassess the evidence put before the Tribunal and reach a different factual conclusion about the nature of the relationship between the applicant and his wife”.
The first respondent argued that there is no basis for any suggestion that the Tribunal applied the wrong test in its application of reg.1.15a of the Regulations, and noted that the Tribunal correctly directed itself in relation to the test at paragraphs 39 and 40 of its decision as follows:
The visa applicant and the review applicant were married to each other in Bosnia Herzegovina on 14 August 2003. At the time of application the parties were married to each other under a marriage that is recognised as valid for the purposes of the Act. At the time of decision they are still married to each other. The Tribunal therefore must now consider whether the visa applicant was the spouse of the sponsor at the time of the application and continues to be the spouse of the sponsor at the time of decision.
Regulation 1.15A contains the test to be applied to determine whether one person is the ‘spouse’ of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of 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.
The first respondent submits that it is clear that the Tribunal, in considering all the circumstances of the relationship, was not satisfied that the relationship was genuine. The first respondent submits that the Tribunal was under no obligation to accept the applicant’s claims about the genuiness of the relationship and refers to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [134]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Kopalapillai v Minster for Immigration and Multicultural Affairs (1998) 86 FCR 547; Khogali v Minster for Immigration and Multicultural Affairs [1999] FCA 1076 at [39]; Nejad v Minster for Immigration and Multicultural Affairs [2001] FCA 1399 at [3]-[4].
In my view, the Tribunal did not misunderstand or misapply reg.1.15a of the Regulations. The Tribunal simply formed the view that if the applicant had been in a genuine marriage with Ms Halkic, he would have visited her at some point after August 2003 and before March 2006, a period of two and a half years.
In forming this view, the Tribunal noted that the applicant’s reasons for not visiting his wife in that time were that his brother’s house was uncomfortable, he expected his wife to arrive in Australia imminently and he had to attend to the paperwork associated with the visa application.
The Tribunal was not persuaded by those reasons. The Tribunal considered that the applicant being unwilling to visit his wife because his brother’s home was uncomfortable reflected a lack of the commitment contemplated by reg.1.15a of the Regulations.
The Tribunal also noted that the applicant had been advised that his application might take six to twelve months to determine and he could have visited his wife during that time. The Tribunal did not accept that the applicant needed to be physically present in Australia to attend to paperwork given that he was represented by an agent. The Tribunal also noted that the applicant is retired, debt free has no dependent children and had the time and financial resources to visit his wife if he had so wished.In these circumstances, it seems to me that the Tribunal’s conclusion that “a genuinely committed person in the review applicant’s position would have visited the visa applicant since August 2003” is an unremarkable application of reg.1.15a of the Regulations. That is, I do not consider that the Tribunal misunderstood or misapplied that regulation in this case. This ground is not made out.
Ground 2: Section 359A
The applicant contends that the Tribunal breached s.359a of the Act in relation to information contained in a statutory declaration made by Aziz Muzaferovic. This ground was put in the applicant’s written contentions as follows:
[26] The Tribunal was obliged pursuant to section 359a of the Act to provide to the applicant in writing particulars of any information which the Tribunal had which it regarded would be or might be part of the reason for affirming the decision under review and was obliged to give the applicant an opportunity to understand why the information was relevant and respond to it. The Tribunal had information from the witness Aziz Muzaferovic that “during last years visit to Bosnia, I met with Mehmed and Kado at a restaurant” (CB 150.5). This information, including the absence of any reference to attendance at the applicant’s wedding, was used by the Tribunal in part as the reason for affirming the decision. The Tribunal therefore was obliged pursuant to section 359A of the Act to give particulars of this information and to explain its relevance to the applicant and to invite comment, but failed to do so. Any breach of section 359A, analogously to any breach of the similar provision 424A relating to the Refugee Review Tribunal is a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162). For this reason also the Tribunal has fallen into jurisdictional error and the decision should be set aside.
Section 359a of the Act provides as follows:
Applicant must be given certain information
(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(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; or
(c) that is non‑disclosable information.
The statutory declaration containing the relevant information was provided to the Tribunal under the cover of a letter dated 9 March 2005 from the applicant’s migration agent to the Tribunal. The letter said:
We enclose herewith for your attention the following documents:
…
2.Statutory Declarations of … Aziz Muzaferovic.
The applicant argued that although the statutory declaration was provided by the applicant’s own migration agent to the Tribunal, it nevertheless did not fall within the exception in s.359a(4)(b) of the Act which is to the effect that s.359a does not apply to information “that the applicant gave for the purpose of the application”. The applicant argued that where information was given by a witness, in effect, called by the applicant, that was a different situation to the situation where the applicant provides country information to the Tribunal even though the author of the country information is not called. The applicant relied upon SAAP to say that the information in this case was not given by the applicant even though it was forwarded by his migration agent.
The applicant also argued that the information which the Tribunal considered to be the reason or part of the reason for its decision was the information that Mr Muzaferovic did not mention being present at the wedding between the applicant and his wife. The applicant argued that the present case was analogous to those cases where the Tribunal relies upon a prior inconsistent statement made by the applicant otherwise than to the Tribunal.
The applicant did not cite any authority to the effect that a statutory declaration made by a person other than the applicant but provided by the applicant’s migration agent to the Tribunal would trigger the obligations in s.359a of the Act. On the other hand, the first respondent referred to the decision of the Full Federal Court in SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214. In that case, at [252], Allsop J said, in relation to the matter of SZEOP:
As to the argument based on s424A and the letter from the person, I would prefer to base my conclusion on the fact that the letter from the person was sent to the Tribunal attached to a submission from the appellant’s adviser. Plainly s424A(3)(b) applied to it.
The first respondent also referred to paragraphs [62]-[65] of SZEEU where Moore J said the following in relation to the matter of SZEOP:
[62] The second ground in the appeal concerned the rejection by the Tribunal of evidence given by a Mr W in a letter. The letter was sent to the Tribunal shortly after the hearing before the Tribunal. The letter was from a man who said he had met the appellant at a hotel in Erskineville and they used to meet up in North Sydney where the appellant lived. In the letter, he said he could clarify that the appellant was a homosexual and if the recipient of the letter wanted more information they could contact him. Two telephone numbers were given. The Tribunal said that the contents of the letter did not appear to be congruous with the appellant's other evidence.
[63] Counsel for the appellant submitted that the Tribunal did not give the appellant an opportunity to respond to its concerns about any perceived inconsistencies. At the very least, it was submitted, the Tribunal should have contacted the author of the letter to seek clarification from him of the evidence in the letter. A further submission was made that the Tribunal was bound to provide the appellant with particulars of perceived inconsistencies (being information) under s.424A.
[64] Counsel for the Minister submitted that the Tribunal had not been under a duty to contact the author and the perceived inconsistencies were not information for the purposes of s 424A.
[65]The Federal Magistrate was correct in rejecting the submissions concerning the letter. The Tribunal was entitled to form the view that the evidence in the letter was not congruous with the appellant's evidence (particularly having regard to the fact that the evidence of the appellant had not included a reference to meeting the author of the letter at an Erskineville Hotel) and was under no obligation to contact the author to make further inquiries. Nor was the Tribunal under any obligation to act under s 424A. Its view about the contents of the letter resulted from its thought processes and evaluation of the evidence. This was not, relevantly, information.
Although it is not expressly stated, the conclusion expressed by Moore J seems to be premised on the fact that the letter in question, written by a third party, was sent to the Tribunal by the applicant. Weinberg J at [172] agreed with Moore J in the result in SZEOP, but did not expressly agree with his Honour’s reasons.
Overall, SZEEU does not provide clear and conclusive authority to the effect that a statutory declaration made by a third party and provided to the Tribunal by the applicant’s migration agent is information provided to the Tribunal by the applicant for the purposes of s.359a of the Act.
The first respondent also referred to a number of decisions of the Federal Magistrates Court that addressed this issue. Firstly, in SZCNG v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 505 at [48], Barnes FM drew a distinction between oral evidence provided by a third party witness in response to questions from the Tribunal of which the applicant had no notice, and the situation where the applicant had chosen to put “a prepared statement of a witness to the Tribunal in circumstances where the applicant must be taken to have advance knowledge of the precise contents of such evidence”.
In the latter case, her Honour considered that “the applicant should properly be seen as giving information contained in such a statement to the Tribunal.” In the context of SZCNG, this statement was obiter.
Secondly, in SZHRD v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 551, Scarlett FM dealt with a case in which a letter written by a third party witness was provided to the Tribunal by the applicant’s agent together with an invitation to contact the writer of the letter by telephone to obtain further evidence.
His Honour considered that the additional information provided by the third party witness by telephone and not provided in the presence of the applicant or his agent was information that fell within s.424a of the Act and did not fall within the exception in s.424a(3)(b). That conclusion appears to me to be a direct application of the High Court’s decision in SAAP. It is distinguished from the present case by the fact that in SZHRD, the applicant did not provide to the Tribunal the information given by the third party witness by telephone, whereas, in the present case, the applicant, by his agent, gave the statutory declaration to the Tribunal.Thirdly, Smith FM in SZILK v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1318 at [39]-[40] said:
[39] The information relating to the statutory declaration which was identified by the Tribunal was that it "does not state that the applicant was a practitioner of Tien Tao in China". I consider that this information was sourced in the statutory declaration, and that it was used adversely as part of the Tribunal’s reasoning. However, in my opinion the whole of that statutory declaration, including the limits of its contents, was information which the applicant "gave for the purpose of the application" within the exclusion of s.424A(3)(b).
[40] This is because it was, as I have described above, presented by the applicant’s agent to the Tribunal in support of her application for review. I do not consider that Federal Court authorities, which are somewhat discordant, in relation to the application of s.424A(3)(b) to evidence orally given by an applicant’s witness appearing at a Tribunal hearing have relevance in the present situation (compare Young J’s discussion in Applicant M47/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 176 with Branson J’s discussion in SZECG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 733).
The first respondent submits that the decisions of the Federal Magistrates Court referred to above are not plainly wrong and that I ought to follow them. The applicant points out that the decision in SZCNG was obiter. SZHRD is distinguishable. However, SZILK is directly on point and in my view, it is correct, as is the conclusion of Allsop J at paragraph [252] of SZEEU.
That is, in my view, information contained in a statutory declaration made by a third party witness that is provided to the Tribunal by the applicant’s migration agent is information that is given to the Tribunal by the applicant for the purpose of the application to the Tribunal and thus falls within s.359a(4)(b) of Act.
The first respondent also argues, further and alternatively, that: “s.359A did not encompass the Tribunal’s subjective appraisals, thought processes or determinations. Nor did it extend to identified gaps” in the information provided. Reference was made to SZEEU at [206] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], cf SZEEU at [222]-[223].
I accept those contentions, but only on the basis discussed above, namely, that the information in Mr Mustaferovic’s statutory declaration was provided by the applicant to the Tribunal. In my view, the subjective appraisals argument in this case in not in reality an alternative argument, but requires for its foundation an acceptance that the information contained in Mr Mustaferovic’s statutory declaration was information provided by the applicant to the Tribunal. I have already accepted that. I also accept that gaps in information provided to the Tribunal do not need to be the subject of a section 359a letter, as explained in VAF at paragraph [24] where Finn and Stone JJ said that:
(iii)the word [“information”] does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
For the reasons given above, ground 2 is not made out.
Ground 3: Alleged Invalidity
The applicant argued that reg.1.15a of the Regulations is invalid.
In his written submissions, the applicant said in relation to this point the following:
In the alternative, to the extent that Regulation 1.15A imposes a different standard for the assessment of whether parties are married, it is in conflict with the definition of marriage under the Marriage Act 1961 (Cth) as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” and to this extent is invalid.
The Marriage Act 1961 (Cth) is concerned in part with the determination of marriages as valid or the recognition of valid marriages. “Spouse” means husband or wife. It necessarily follows that if parties are married in a marriage recognised for the purposes of the Marriage Act 1961 (Cth) they are in a spouse relationship. It is not within competence of the Migration Regulations 1994 to determine a conflicting or contradictory definition of a spouse relationship.
When Regulation 1.15A is read down to any necessary extent to bring it into harmony with the Marriage Act 1961, it follows that as there was no doubt that the parties were married in a marriage recognised for the purposes of the law of the Commonwealth, the Tribunal was in error in determining that they did not meet the requirements of Regulations 1.15A. For this reason also the Tribunal has fallen into jurisdictional error and the decision should be set aside.
Subsection 504(1) of the Act provides that:
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations [in relation to certain matters]…
Section 31 of the Act provides that
(1) There are to be prescribed classes of visas.
…
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be class provided for by [various sections]).
The applicant notes that the long title of the Act is:
An Act related to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
The applicant argues that the Marriage Act1961 separately provides for the solemnisation of marriages and specifies the circumstances in which a marriage will be void. The applicant accepted in oral submissions that the Regulations could have provided that a person would only be entitled to a particular class of visa if they had been married for, say, two years. However, the applicant argued that it was not open to the Governor-General to invent a category of visa based on the word “spouse” meaning something other than the meaning of that word conveyed by the Marriage Act1961.That Act does not define “spouse”. Nevertheless, the applicant referred to the definition of spouse in the Oxford Dictionary, namely,
1.A married woman in relation to her husband; a wife; a bride. Usually with possessive pronouns, of or to…
2.A married man in relation to his wife; a husband; a bridegroom. Usually with possessive pronouns.
The applicant argued that the notion of being a spouse is of such importance to our whole society that it cannot be altered by delegated legislation in a way that is inconsistent with an Act of Parliament, in this case, the Marriage Act 1961.
The first respondent argued that reg.1.15a(1A)(a) of the Regulations requires that to be eligible for a spouse visa on the grounds that the applicant is married to another person, the marriage must be recognised as valid for the purposes of the Act. That requirement imports the provisions of the Marriage Act 1961. However, the first respondent argued that the Regulations clearly go further and require that to satisfy the visa criteria, not only must there be a valid marriage but the marriage must be based on a genuine relationship.
The first respondent says that there is no conflict between the Marriage Act1961 and reg.1.15a of the Regulations as the Marriage Act 1961 is not concerned with the genuineness of the relationship between the parties to the marriage. Furthermore, the first respondent notes that reg.1.15a of the Regulations specifies another category of persons who can qualify for a spouse visa being those people who are in a genuine de facto relationship.
In my view, there is no substance in the applicant’s argument concerning invalidity. Subsection 504(1) of the Act provides that the Governor General “shall make regulations, not inconsistent with this Act”, meaning the Migration Act 1958. Section 31 of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Regulation 1.15a(1) begins with the words, “For the purposes of these regulations, a person is the spouse of another person” in certain circumstances. Those circumstances include, in essence, that there is a valid marriage and a genuine relationship between the parties to the marriage, or alternatively, a genuine de-facto relationship between the parties to the relationship. In my view, there is no inconsistency between a regulation which requires that a relationship between visa applicants must be genuine for the visa to be granted and the Marriage Act1961 which specifies the circumstances in which a marriage will be valid.
The applicant argued that the regulations impermissibly redefined the concept of a spouse and thus encroached upon the ground covered by the Marriage Act 1961. However, regulation 1.15a is expressly confined to determining when one person is the spouse of another “For the purposes of these regulations.” Those purposes are not the definition of “spouse” for all purposes, but only for the purposes of establishing the criteria for a particular class of visa. In the circumstances, there is no inconsistency between reg.1.15a of the Regulations and the Marriage Act 1961. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 24 November 2006
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