Bretag v Immigration Review Tribunal (unreported, O’Loughlin J, 29 November 1991) considered Minister for Immigration & Ethnic Affairs v Pochi (1980) 4 ALD 139 considered WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 considered
DINESH SURANGA JAYASINGHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL VID 919 OF 2006
MIDDLETON J 12 DECEMBER 2006 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 919 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
DINESH SURANGA JAYASINGHE Appellant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
12 DECEMBER 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 919 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
DINESH SURANGA JAYASINGHE Appellant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
MIDDLETON J
DATE:
12 DECEMBER 2006
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from a judgment of Federal Magistrate McInnis of 27 July 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 5 January 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 31 May 2004 to refuse to grant the appellant a spouse visa pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).
PROCEDURAL BACKGROUND AND THE APPELLANT’S CLAIMS
The appellant is a citizen of Sri Lanka. He arrived in Australia on 15 July 1998 as the holder of a student visa. On 10 October 2003, the appellant applied for a Partner (Temporary) (class UK) visa, subclass 820 (Spouse) (‘temporary spouse visa’) and a Partner (Residence) (class BS) visa, subclass 801 (Spouse) (‘permanent spouse visa’). The appellant was sponsored by Ms Elvira Thompson (‘the sponsor’), an Australian citizen originally from the Philippines who had previously been married twice. The appellant and the sponsor married in Sydney on 6 October 2003, however, at the time of the marriage, she was still married to another man.
Before the delegate, the appellant claimed their relationship came to an end when the appellant discovered a letter between the sponsor and another man which indicated that the sponsor was not only involved with this man but also that she intended to sponsor him. In its decision dated 31 May 2004, the delegate refused to grant the appellant a temporary or permanent spouse visa. The delegate was not satisfied that the appellant was the spouse of the sponsor as this relationship is defined in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jayasinghe v MIMA [2006] FCA 1700
Case
[2006] FCA 1700
Decision Date
CaseChat Overview and Summary
In the case of Jayasinghe v MIMA, the appellant, a Sri Lankan citizen, sought judicial review of a decision by the Migration Review Tribunal (Tribunal) affirming a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse him a spouse visa. The appellant had applied for both a temporary and a permanent spouse visa, sponsored by an Australian citizen, Ms Elvira Thompson. The delegate's decision to refuse the visa was based on the lack of evidence that the appellant was the spouse of the sponsor, as defined in the Migration Regulations 1994 (Cth) (Regulations). The Tribunal upheld the delegate’s decision, concluding that the appellant had not established that he was in a spousal relationship with the sponsor at the time of the application.
The legal issues before the court were whether the Tribunal erred in its assessment of the evidence relevant to the appellant’s claim of a spousal relationship with the sponsor and whether the Tribunal misapplied the Regulations in determining the nature of the relationship. The court examined whether the Tribunal properly assessed the evidence, particularly whether it should have considered evidence of events subsequent to the visa application. The Regulations require that the question of whether the appellant is the spouse of the sponsor be determined at the time of the visa application. However, the court noted that evidence of subsequent events may be relevant if it logically shows the existence or non-existence of facts relevant to the issue being determined.
The court found that the Tribunal had erred by placing undue reliance on evidence of events subsequent to the visa application. The court held that while the Tribunal was entitled to consider such evidence if it logically shows the existence or non-existence of the relationship at the relevant time, it should not have done so in this case. This error in the assessment of the evidence led to the Tribunal’s conclusion that the appellant had not established a spousal relationship with the sponsor at the time of the application.
The appeal was dismissed, and the decision of the Tribunal was affirmed with costs. The court concluded that the Tribunal's reliance on subsequent events as the primary basis for its decision constituted an error of law, which warranted the dismissal of the appeal.
Orders
Orders of the court
1. The appeal be dismissed with costs.
Background
Background to the litigation
This is an appeal from a judgment of Federal Magistrate McInnis of 27 July 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 5 January 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 31 May 2004 to refuse to grant the appellant a spouse visa pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).PROCEDURAL BACKGROUND AND THE APPELLANT’S CLAIMS The appellant is a citizen of Sri Lanka. He arrived in Australia on 15 July 1998 as the holder of a student visa. On 10 October 2003, the appellant applied for a Partner (Temporary) (class UK) visa, subclass 820 (Spouse) (‘temporary spouse visa’) and a Partner (Residence) (class BS) visa, subclass 801 (Spouse) (‘permanent spouse visa’). The appellant was sponsored by Ms Elvira Thompson (‘the sponsor’), an Australian citizen originally from the Philippines who had previously been married twice. The appellant and the sponsor married in Sydney on 6 October 2003, however, at the time of the marriage, she was still married to another man. Before the delegate, the appellant claimed their relationship came to an end when the appellant discovered a letter between the sponsor and another man which indicated that the sponsor was not only involved with this man but also that she intended to sponsor him. In its decision dated 31 May 2004, the delegate refused to grant the appellant a temporary or permanent spouse visa. The delegate was not satisfied that the appellant was the spouse of the sponsor as this relationship is defined in reg 1.15A of the Migration Regulations 1994 (Cth) (‘the Regulations’).THE TRIBUNAL’S DECISION On 23 June 2004, the appellant applied to the Tribunal for review of the delegate’s decision. In correspondence to the Tribunal dated 6 June 2005 a new representative for the appellant submitted that the appellant’s relationship with the sponsor had broken down due to domestic violence committed against the appellant by the sponsor. In its reasons for decision, the Tribunal stated, at [22], that:Before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal has considered whether, at the time of application, the sponsor and the visa applicant were in a spousal relationship for the purposes of the Regulations. Given that subclause 820.221(3) requires relevantly that the applicant would have continued to be the spouse of the sponsor except that the relationship between the visa applicant and the sponsor has ceased, it is incumbent on the visa applicant to establish that he was in a spouse relationship with the sponsor. If it did not exist it could not have ceased. {emphasis in original} Therefore, the first question the Tribunal considered was whether or not the appellant was ever the spouse of the sponsor. In doing so, it considered the matters described in reg 1.15A of the Regulations which contains the test for determining whether one person is the ‘spouse’ of another person. The Tribunal, discussed the issues relevant to determining the nature of the relationship and had regard to the qualifying elements for a married relationship as described in subreg 1.15A(1A) of the Regulations.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
MIDDLETON J
Before the delegate, the appellant claimed their relationship came to an end when the appellant discovered a letter between the sponsor and another man which indicated that the sponsor was not only involved with this man but also that she intended to sponsor him. In its decision dated 31 May 2004, the delegate refused to grant the appellant a temporary or permanent spouse visa. The delegate was not satisfied that the appellant was the spouse of the sponsor as this relationship is defined in reg 1.15A of the Migration Regulations 1994 (Cth) (‘the Regulations’).THE TRIBUNAL’S DECISION On 23 June 2004, the appellant applied to the Tribunal for review of the delegate’s decision. In correspondence to the Tribunal dated 6 June 2005 a new representative for the appellant submitted that the appellant’s relationship with the sponsor had broken down due to domestic violence committed against the appellant by the sponsor. In its reasons for decision, the Tribunal stated, at [22], that:Before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal has considered whether, at the time of application, the sponsor and the visa applicant were in a spousal relationship for the purposes of the Regulations. Given that subclause 820.221(3) requires relevantly that the applicant would have continued to be the spouse of the sponsor except that the relationship between the visa applicant and the sponsor has ceased, it is incumbent on the visa applicant to establish that he was in a spouse relationship with the sponsor. If it did not exist it could not have ceased. {emphasis in original} Therefore, the first question the Tribunal considered was whether or not the appellant was ever the spouse of the sponsor. In doing so, it considered the matters described in reg 1.15A of the Regulations which contains the test for determining whether one person is the ‘spouse’ of another person. The Tribunal, discussed the issues relevant to determining the nature of the relationship and had regard to the qualifying elements for a married relationship as described in subreg 1.15A(1A) of the Regulations. One of the requirements is that the persons are married to each other under a marriage that is recognised as valid for the purposes of the Marriage Act 1961 (Cth). The Tribunal noted that whilst the sponsor was still validly married to someone else, this was not determinative of the outcome of whether the appellant and the sponsor were in a marriage relationship. The other qualifying elements are that the persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing and, relevantly, that they live together. The Tribunal, in accordance with subreg 1.15A(3), also considered the following circumstances of the relationship in forming its opinion as to whether the persons were in a marriage relationship:(a) the financial aspects of the relationship;(b) the nature of the household;(c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.
Ratio Decidendi
Legal Principle Established
Established by:
MIDDLETON J
Each of subcll 820.211(2), (3), (4), (5) and (6) required that, at the time of the visa application, the appellant was the spouse of the sponsor.CONSIDERATION At the hearing of this matter, and upon an elaboration of the appellant’s outline of submissions, the real complaint made by the appellant is that the Tribunal did not properly assess the evidence relevant to the question of whether the appellant and his spouse were in a married relationship, and therefore whether he was the ‘spouse’ of the sponsor for the purposes of reg 1.15A. The appellant submitted that the Tribunal misconstrued or misapplied reg 1.15A in making its determination of the nature of the relationship on the basis of evidence at the time of application. However, cl 820.211 of Pt 820 of sch 2 to the Regulations clearly requires the question of whether the appellant is the spouse of the sponsor within the meaning of reg 1.15A to be determined at the time of the visa application. It was therefore necessary for the Tribunal to assess whether or not, at the time of the visa application, the evidence supported a conclusion that the circumstances of the appellant’s relationship satisfied the requirements of reg 1.15A. This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. As to the question of evidence of subsequent events, I have considered the case of Bretag v Immigration Review Tribunal (unreported, O’Loughlin J, 29 November 1991) (‘Bretag’). In that case, the Tribunal had to answer the question of whether two persons in a relationship had a mutual commitment to the exclusion of others. The Tribunal had to determine the question at a particular point in time but made reference to evidence about subsequent events in assessing whether at the relevant time the relationship was exclusive. In reviewing the decision of the Tribunal, the court found that the Tribunal’s undue reliance on the evidence of subsequent events disclosed error. The court did not hold that, in all circumstances, evidence of subsequent events was a relevant consideration which the legislation required the Tribunal to consider. Rather, the court held that in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. As stated by O’Loughlin:It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE – 7 February 1990. But the evidence of the subsequent history is only relevant so long as it tends to logically show the existence or non-existence of facts relevant to the issue to be determined.