Jayasinghe v Minister for Immigration - [2006] FMCA 1036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAYASINGHE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1036

MIGRATION – Migration Review Tribunal – partner visa – partner residence visa – whether jurisdictional error – failure to comply with s.359A of the Migration Act.

Migration Act 1958, ss. 353, 359A, 362A,
Migration Regulations 1994

SAAP v Minister for Immigration and MulticulturalAffairs [2005] HCA 24
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Applicant A227 of 2003 v Minister for Immigration [2004] FCA 567
WAJS v Minister for Immigration [2004] FCAFC 139
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50

Applicant:

DINESH SURANGA JAYASINGHE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 19 of 2006

Judgment of:

McInnis FM

Hearing date:

3 July 2006

Delivered at:

Melbourne

Delivered on:

27 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr Hamilton

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the Respondents:

Mr R.C. Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Amended Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 19 of 2006

DINESH SURANGA JAYASINGHE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application the Applicant relies upon an amended application filed 12 April 2006. In the amended application, judicial review is sought of a decision of the Migration Review Tribunal (the Tribunal) dated 5 January 2006. In its decision, the Tribunal affirmed a decision of a delegate finding that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa nor a partner (residence) (class BS) visa.
The Applicant has relied upon contentions of fact and law filed 12 April 2006 and otherwise relied upon submissions made for and on his behalf by counsel before this court. The First Respondent has relied upon contentions of fact and law filed 12 May 2006. It will be evident that during the course of submissions, counsel now appearing for the Applicant, who did not prepare the Applicant's contentions of fact and law, sought to agitate further issues, although essentially did not in my view necessarily raise new issues for the consideration of this court.
The background facts in this matter are not substantially in dispute. The chronology of events set out in the First Respondent's contentions of fact and law appear to accurately reflect the material before the Tribunal and documents which are in the court book. The Applicant is a Sri Lankan citizen who arrived in Australia on 15 July 1998 as the holder of a student visa. On 10 October 2003, the Applicant lodged with the First Respondent's Department and application to migrate to Australia on spouse grounds. Certain documents were forwarded to the department by the then representative of the Applicant by a letter dated 9 October 2003 (Court Book page 42).
Apart from the initial material in support of the application, the Applicant's representatives also forwarded additional documents in support of the application under cover of correspondence dated 12 December 2003, 9 January 2004, 5 February 2004 and 30 April 2004. The Applicant and the sponsor were also interviewed by officers of the Department on 23 January 2004 and 27 April 2004.
A delegate of the First Respondent, in a decision dated 31 May 2004, refused to grant the Applicant a spouse visa (court book page 110). The delegate refused to grant the Applicant a partner (temporary) (class UK) visa, subclass 820, or a permanent spouse visa. The delegate was not satisfied that the Applicant was the spouse of the sponsor.
The Applicant lodged an application before the Tribunal on 23 June 2004 seeking review of the delegate's decision. Further correspondence was forwarded to the Tribunal dated 6 June 2005 by new representatives for the Applicant, submitting that the relationship between the Applicant and the sponsor had broken down due to domestic violence allegedly committed against the Applicant by the sponsor (Court Book page 12-13).
On 17 June 2005, the Applicant's representatives sought pursuant to s.362A of the Migration Act 1958 (the Migration Act) access to documents held by the Tribunal. With some exceptions, the Tribunal released relevant documents on 28 July 2005. On 19 July 2005, the Applicant's representatives submitted evidence about the Applicant's domestic violence claims including a statutory declaration from the Applicant as well as declarations from a psychologist and social worker (Court Book pages 125-152).
The Tribunal, by correspondence dated 28 November 2005 (Court Book page 15), invited the Applicant to comment on information pursuant to s.359A of the Migration Act. Specifically, the Tribunal invited the Applicant to comment in writing on the following information:
· Your former solicitor advised the department by a letter dated 30 April 2004 that you did not start living with your former sponsor until 6 October 2004 (presumably a mistake intended to read 6 October 2003);
· In a conversation with departmental officers during a home visit on 27 April 2004, your former sponsor told the officers that you and she started living together on 10 October 2003.
In the same correspondence, the Tribunal referred to the relevance of the two pieces of information where the Tribunal had sought comment from the Applicant. It did so in the following terms:
“This information is relevant to the review because it may be a reason for affirming the delegate’s decision because it is inconsistent with your evidence at the hearing before the Tribunal, that you and your former spouse started living together in March 2003, and it may therefore cast doubt on your credibility. It may also be a reason for affirming the delegate’s decision because you are required to show that you and your former sponsor were in a spouse relationship at the time of application (10 October 2003). One of the issues the Tribunal is required to consider in assessing whether you and your former sponsor were in a genuine spouse relationship, is the length of time you had been living together since the time of application. You may be less likely to establish that a genuine spouse relationship existed at the time of application if you had only commenced living together a few days before or on the day you lodged your application for a spouse visa.”
The Tribunal then indicated a third item of information on which the Applicant was invited to provide a comment; namely:
· Information before the Tribunal suggest that your former sponsor may have still been married to someone else in the Philippines at the time of your application.
The Tribunal again set out the reason why that information was relevant and essentially referred to the question of determining whether or not the Applicant was in a genuine spousal relationship with the sponsor.
By a statutory declaration declared on 5 December 2005, the Applicant provided a response to the Tribunal's s.359A letter. On 5 January 2006, the Tribunal handed down its decision of the same date.

Relevant Legislation

It is common ground that an application for a temporary spouse visa is to be assessed against the criteria set out in part 820 of schedule 2 to the Migration Regulations 1994 (the Regulations). An application for a permanent spouse visa is relevantly assessed against the criteria set out in part 801 of schedule 2 of the regulations. It is again common ground that generally, an Applicant cannot be granted a permanent spouse visa unless he or she has been previously granted a temporary spouse visa (see subdivision 801.22 of part 801 of schedule 2 of the Regulations).
The criteria to be satisfied at the time of a decision in relation to an application for a temporary spouse visa are set out in subdivision 822.22 of the regulations. In that subdivision, clause 820.221 relevantly requires that an Applicant at the time of the decision continues to meet the criteria applicable at the time of the visa application or alternatively meets the requirements of subclause 820.221(2) or (3) which provides as follows:
“(2)An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the sponsoring spouse has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3)An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(b) either or both of the following circumstances applies:
(i)either or both of the following:
(A)the applicant;
(B)a dependent child of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
(ii)the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975 ; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.”
It is noted in the present case that the Applicant has asserted he was a victim of domestic violence at the hands of the sponsor and accordingly claimed that he could only meet the requirements of subclause 820.221(3).
Again it is common ground that subclauses 820.211(2), (3), (4), (5) and (6) require that at the time of the visa application an Applicant is required to be the spouse of his or her sponsor. Pursuant to subregulation 1.15A(1) of the Regulations, a person is the spouse of another person if the two persons are in "a married relationship" as described in subregulation (1A). Subregulation 1.15A(1) provides as follows:
“(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.”
Subregulation 1.15A(3) provides that in forming an opinion as to whether two persons are in a married relationship in relation to an application for a temporary partner visa, the Minister must have regard to all of the circumstances of the relationship, including, in particular:
“(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one party to the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i)any joint responsibility for care and support of children, if any; and
(ii)the parties' living arrangements; and
(iii)any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;”
For the present purposes, the Applicant has also sought to rely upon subregulation 1.15A(5) which provides:
“(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.”

The Tribunal's decision

In its decision, the Tribunal reached a conclusion that it was not satisfied that the Applicant met the criteria for the grant of a temporary spouse visa and accordingly could not meet the criteria for the grant of a permanent spouse visa. Specifically, the Tribunal made the following significant finding:
“23.The Tribunal is not satisfied that the parties were, at any stage, in a spouse relationship as defined by the Regulations. Accordingly the visa applicant was not in a relationship that ceased within the meaning of subclause 820.221(3)
24.Having found that the visa applicant does not satisfy an essential criterion for the grant of a visa (a spousal relationship) the Tribunal need not consider the remaining criteria, or make a finding in relation to his claims of domestic violence.
25.Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a General (Residence) (Class AS) visa).”
It is also noted that the Tribunal specifically made the following finding:
· The visa Applicant was not in a spousal relationship with the sponsor at the time of the visa application or at any time thereafter.
The Tribunal considered the evidence before it which included the various documents referred to earlier in this judgment together with the evidence given by the Applicant to the Tribunal. It made a summary of the Applicant's evidence after reciting the chronology of events. Of specific relevance is the following passage which appears at Court Book page 28 where the Tribunal states:
"His relationship with the sponsor has now ceased. When asked for an account of the reasons why they stopped living together the visa applicant gave the following evidence:
In early February 2005 he discovered a letter sent by a man in the Philippines to the sponsor. It was apparent that the author of the letter and the sponsor had known each other for a long time and knew each well and that she was planning to sponsor him for migration to Australia. He confronted her with that letter. She grabbed it from him. She was infuriated that he had read her mail and became extremely angry but she did not dent that she was intending to sponsor the man for migration to Australia. She told him to leave the flat. He went to stay with a friend. A couple of days later he returned to the flat and the sponsor was there with two men whom he knew to be friends of hers from Wollongong. The men told him to leave. He had heard stories that she had friends in Wollongong and suspected from the way they told him to leave that she may have been having an affair with one of them”.
To understand the reference to the letter in that extract, it is also relevant to note that the Applicant in his statutory declaration declared on 22 June 2005 (Court Book page 131) relevantly stated the following in paragraph 9 as follows at page 132:
“9. On 10 February 2005 I discovered that Elvire was being unfaithful. I was cleaning the house when I inadvertently found a letter written by Elvire’s boyfriend in Philippines. I opened the letter because we had a mutual agreement to open each other’s letters. The content of the letter suggests that Elvire was in the process of assisting the man to migrate to Australia, and that ‘I will be thrown out’ from the house after his arrival”.
Following that reference to the letter, the Applicant then refers to what he describes as a confrontation with the sponsor in these terms:
“10.I confronted Elvire with the letter. As a resulted Elvire because very angry and asked me to leave the house. About 4 pm on 14 February 2005, I came home to find two frightful bikey men dressed in half-cut leather jackets exhibiting their tattoos in the house. As I stepped in the men asked me to pack my things and leave the house. I told them that I also lived in the house. Immediately, the two men grabbed me by my hands and pulled me out. I went to a friend’s place where I spent the night.
11.On 15 February 2005 I went to my house and told Elvire that we could settle the matter. She did not want to listen to me. She started argument and began to throw my things outside and asked me to leave immediately. I refused to leave and went into another room where I slept for the night.”
The Tribunal had set out the relevant legislation and further, when making its findings, specifically stated the following:
“21.To be granted a subclass 820 visa, the visa applicant must meet, at the time of decision, one of the alternate requirements contained in the subclauses listed in cl.820.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Subclause 820.221(1) contemplates that the visa applicant continues to be the spouse of the sponsor or meets the alternate requirements of subclause 820.221(2) or (3). Subclause 820.221(2) relates to circumstances where the sponsor has died and is not applicable in this case. 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, and at the relevant time, the visa applicant, has suffered domestic violence committed by the sponsor: cl.820.221(3)(a), 820.221(3)(b)(i).
22.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 had 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.
21.Regulation 1.15A of the Regulations contains the test for determining whether one person is the ‘spouse’ of another person, when in a married or a de factor relationship. In Nassouh, the Federal Court held that subregulation 1.15A(3) of the Regulations sets 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) of the Regulations. 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 nature of the persons’ commitment to each other.
22.Having regard to the considerations for a spousal relationship set out in regulation 1.15A of the Regulations at the time of application and at the time of decision, the evidence and issues are discussed under the following headings:

The amended application

In the amended application, the Applicant sought to rely upon the following grounds:
“1. The Tribunal did not have jurisdiction to make the decision because it involved jurisdictional errors, copying errors of law such that the decision of the Tribunal was not a decision reasonably capable of reference to the power given to the tribunal by Part 5, Division 2 of the Migration Act being:
i.The Tribunal denied the applicant procedural fairness and relied on irrelevant material/consideration in that the Tribunal affirmed the decision relying partly upon the information on the Department file which indicates that, at the time of her marriage to the applicant, the sponsor was still validly married to someone. The Tribunal failed to produce the alleged information and give the applicant an opportunity to verify whether the information was true or false.
(i)(a)The MRT failed to comply with Section 359A by failing to provide particulars of the information it had about the sponsors alleged ongoing marriage to someone else.
ii. The Tribunal failed to conduct the review according to the requirements of procedural fairness in that it found that, ‘At the time of application the applicant and the nominator were married to each other under a marriage that is recognised as valid for the purpose of the Act [and] at the time of decision they were still married to each other’ but it went ahead to affirm the decision on grounds that the applicant and the nominator were not in a genuine spousal relationship at the time of application.
iii The Tribunal erred in law in that the Tribunal misconstrued and misapplied the provisions of regulation 1.15A of the Migration Regulations.
iv. The Tribunal failed to conduct the review in accordance with the requirements of the rules of natural justice or procedural fairness or the Migration Act in that it declined to consider the applicant’s claim for domestic violence.
v. There was no evidence to support the finding that the parties resided together for an undetermined period of time
vi. There was no evidence to support the finding that the sponsor was not genuinely committed to a shared life.
vii. The Tribunal based its findings on inferences made in relation to a letter relating to the planned sponsorship of another man such inferences not being open to it.
viii. The Tribunal took account of irrelevant material in its findings related to the letter relating to planned sponsor ship of another man.
ix. The Tribunal’s decision was a decision that no reasonable decision maker would have reached in relation to its findings based on this letter about the genuineness of commitment and period of co-habitation.”

Submissions and reasoning

Prior marriage of sponsor

In the submissions made on behalf of the Applicant, the court's attention was taken to the s.359A letter referred to earlier in this judgment and the information that the sponsor of the Applicant may still have been married to someone in the Philippines at the time of the Applicant's application for a spouse visa. It was submitted that the Tribunal failed to expand upon the information and did not indicate where the information came from or whether the source was confidential and what it was exactly that the information contained.
As I understand it, the Applicant sought then to rely upon the authority of SAAP v Minister for Immigration and MulticulturalAffairs [2005] HCA 24 in support of the claim that this was information that should have been provided to the Applicant by the Tribunal in discharge of its obligations pursuant to s.359A of the Act. It was submitted the Tribunal had failed to give the Applicant a proper opportunity to comment on the information in its possession and/or did not give the Applicant sufficient material to enable the Applicant to comment on the information. That failure meant that the Tribunal had not complied with the requirements of s.359A of the Act.
The First Respondent submitted that in this instance the Tribunal, under the heading ‘Evidence’ set out the material which it relied upon and described the Applicant's evidence before the Tribunal on 5 October 2005. In particular, it was noted that in its decision, the Tribunal referred to the Applicant's evidence concerning his relationship with the sponsor (see paragraph 21 above).
The First Respondent further noted under the heading ‘Discussion and Findings’ the Tribunal then reached various conclusions referred to earlier in this judgment. Those conclusions, it was submitted, demonstrate the Tribunal based its assessment of the relationship between the Applicant and the sponsor in its reasoning. The reasons involved consideration of the relationship having regard to the requirements of Regulation 1.15A. There was an absence of any reference to what might be described as the bigamy information in those reasons and it was submitted that on a fair reading of the reasons it could not be implied that the Tribunal relied upon that bigamy information. Rather, it was submitted, the Tribunal relied upon other criteria set out in the decision.
Accordingly, it was submitted, the Tribunal's decision was reached independent of the bigamy information, and even if an error had occurred by failing to provide sufficient information in the s.359A letter, then no jurisdictional error would flow from that error. It is noted the First Respondent does not concede any error was made, and it was submitted the information was provided in a manner which should lead the court to conclude the Tribunal had discharged its duty to provide the information pursuant to s.359A of the Act.

Reasoning

In my view, the submissions of the First Respondent in relation to this issue are correct. It is clear to me on a proper reading of the Tribunal's findings that it has not relied upon this factual question at all, even though it had forwarded a s.359A letter which referred to information concerning this issue and invited the Applicant to comment. Simply because it refers to information does not then mean that that information in truth and in fact was used by and/or relied upon by the Tribunal in its conclusions.
In this instance, the Applicant in that sense has been provided with the information which I am satisfied is a sufficient discharge of the Tribunal's obligations, and in any event, as it happens, the Tribunal was not required to consider the information or indeed make any specific findings about this issue referred to in the s.359A letter. It was able to proceed to make findings independent of that information and it cannot be claimed, even if there was an error in the failure of the Tribunal to discharge its obligations under s.359A of the Act, that that error in any event was an error of a kind which would constitute jurisdictional error, given that ultimately the Tribunal did not make any adverse findings about that issue to the detriment of the Applicant.

Genuine spousal relationship

The Applicant submitted that the Tribunal had confused the time at which the assessment of the genuine spousal relationship should be made by seeking to confine itself to the time of the application and/or by ignoring evidence which had indicated, on the submissions of the Applicant, that the parties had at least been living together for a period of six months and to that extent the Applicant ought to gain the advantage of subregulation 1.15A(5) referred to earlier in this judgment.
Whilst there was some doubt about the date of marriage namely, whether it was 6 or 10 October 2003 there was at least common ground that the application was dated 10 October 2003. Again there was clearly some issue as to when the parties commenced cohabitation, with the Applicant seeking to assert that they had commenced cohabitation in July 2003. It was submitted that from that date up until the date when the Departmental officer visited the Applicant and the sponsor namely, April 2004 a period of six months had elapsed where the parties, it could be reasoned, had lived together, and the Tribunal had therefore failed to properly take into account that relevant evidence and/or failed to otherwise apply subregulation 1.15A(5) of the Regulations.
Significant criticism was made of the use made by the Tribunal of the letter claimed to have been discovered by the Applicant in February 2005 from a man in the Philippines to the sponsor. Counsel for the Applicant referred to the extract from the Tribunal's decision set out earlier in this judgment and in further submissions referred to the statutory declaration and in particular paragraph 9 of that declaration which was declared on 22 June 2005 and submitted that the assertion that the sponsor was "being unfaithful" was not supported by any material.
As I understood the submission for and on behalf of the Applicant, it was argued that the letter and the other material was not properly in evidence before the Tribunal, and in the circumstances it is noted the Applicant submitted that it is "impossible to know how the Tribunal came to conclusions about the 'tone and content of the letter'". It was argued it could only have done so by accepting the evidence of the Applicant. If it did accept this evidence, then it does not explain why it was prepared to accept this evidence and not the evidence about the ongoing relationship.
The reference to the "tone and content of the letter" appears in the following extract from the Tribunal's decision:
“Even if the visa applicant was genuinely committed to a spousal relationship with the sponsor the Tribunal is not satisfied that the sponsor was committed to a spousal relationship with him. The Tribunal notes that the sponsor had embarked on a planned sponsorship with another man. The tone and content of the letter from that man to the sponsor made it obvious to him that he and the sponsor had been liaising for a long time before February 2005 and that they knew each other intimately. When he discovered the letter he felt betrayed and confronted the sponsor. The Tribunal notes that rather than resile from the sponsorship of the other individual the sponsor chastised the visa applicant for reading her mail. In the circumstances the Tribunal is not satisfied that the sponsor was genuinely committed to a shared life with the visa applicant to the exclusion of all others. Although this incident occurred in February 2005 the Tribunal notes that the letter indicated an established history between the sponsor and the man whose letter was found. This conduct coupled with the absence of any evidence of a spousal relationship between the sponsor and the visa applicant at the time of application leads the Tribunal to the conclusion that the sponsor did not have a commitment to the visa applicant at the time of application or at any time thereafter.”
It was submitted that there was no evidence before the Tribunal as to the tone or actual content of the letter and no evidence upon which the Tribunal could conclude that this liaison between the letter-writer and the sponsor had been continuing for a long time before February 2005. It was argued there was no evidence as to the nature of the sponsorship allegedly between the sponsor and this other person, other possibilities remained, and the inference the Tribunal was prepared to draw in this matter was only one of a number of inferences. In doing so, the Tribunal engaged in conjecture and guesswork in the use of the letter which it had not seen.
As a result, it was submitted, the Tribunal drew conclusions vital to the determination of the application not based upon evidence or for which there was no evidence. As a result, it was submitted, the finding was not based on evidence before it or there was no evidence to support the finding (see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; Applicant A227 of 2003 v Minister for Immigration [2004] FCA 567; WAJS v Minister for Immigration [2004] FCAFC 139; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50).
It was submitted in the alternative that the Tribunal took into account irrelevant material when it used the letter as part of its reasoning to find a lack of commitment to the relationship on the part of the sponsor. As I understand it, it was further submitted no reasonable decision‑maker could have reached the conclusion of lack of commitment on the part of the spouse on the basis of that letter.
The First Respondent submitted in relation to this issue that the Tribunal's assessment of the Applicant's evidence concerning the sponsor's relationship with another man was an assessment reasonably open to it. Whilst it was conceded that the letter was not in evidence before the Tribunal, it was further submitted the Tribunal was not bound by the rules of evidence and was entitled to have regard to the Applicant's evidence about the "tone and content of the letter" (see s.353 of the Act).
It was submitted the Tribunal was not required to have the letter itself in evidence before it could make a finding about it. It was open to the Tribunal to accept the Applicant's evidence about the tone and content of the letter. It was submitted that essentially the Applicant is seeking a merits review of the Tribunal's assessment of this evidence and that that is impermissible. Reference was made to the summary of evidence by the Tribunal which appears at Court Book page 28 where the following appears:
“… It was apparent that the author of the letter and the sponsor had known each other for a long time and knew each well ...”
That part of the extract set out earlier in the judgment, it was submitted, demonstrates sufficient evidence about what is described as "the tone of the letter". The Tribunal's factual findings in relation to this issue, according to the First Respondent's submissions, were open to it on the material then placed before the Tribunal, including the Applicant's own evidence.

Reasoning

In relation to this issue, it is clear that the Tribunal did not have the advantage of the letter when using that in part to make an assessment of the genuineness of the relationship. However, the statutory declaration of the Applicant combined with the evidence of the Applicant summarised by the Tribunal in my view provides a basis upon which the court may conclude that the finding in relation to this matter was reasonably open to the Tribunal.
Where the Applicant declares, as he had in paragraphs 9 and 10 of the declaration set out earlier in this judgment, that he had opened the letter, having discovered it, and concluded himself not only that his sponsor was "in the process of assisting the man to migrate to Australia" but also further stating that "'I will be thrown out' from the house after his arrival" suggests that the Applicant had drawn a conclusion himself that this was more than a simple sponsoring of another person.
It is the combination of those circumstances which may reasonably lead the Tribunal to conclude that the Applicant's perception was correct both in terms of the duration of the relationship between the sponsor and the other person and the nature of the sponsorship to be provided, resulting in the Applicant being "thrown out" from the house. It is noted that the words "I will be thrown out" were in single quotation marks in the Applicant's declaration and it is reasonable to infer that they are taken from the letter. It is difficult to conceive that an innocuous offer to sponsor another person would lead to such a dramatic outcome.
The further paragraphs in the Applicant's own declaration set out earlier in this judgment are also sufficient to at least provide the Tribunal with an insight into the tone and content of the letter based upon the Applicant's out assessment. In the circumstances, I cannot see any basis upon which it could be concluded that the manner in which the Tribunal dealt with the letter could constitute jurisdictional error.
During the course of submissions, both parties examined in some detail the criteria set out in the relevant legislation. Some criticism was made of the Tribunal by the apparent reliance upon satisfying the criteria at the date of the application. However, in my view it is incumbent upon the Tribunal to be satisfied at the date of the application that the Applicant was the spouse of the sponsor.
It is further clear from the regulations that the Tribunal is required to make a finding pursuant to Regulation 1.15A of the Regulations that the parties were in a married relationship. It is clear that the criteria to be satisfied must be satisfied both at the time of the application and, in order to satisfy the Tribunal or the delegate that the parties are in a continuing relationship, to be also satisfied at the time of decision.
In this instance, when analysing the claim made by the Applicant, I am satisfied that the Tribunal has correctly applied the relevant legislation and, for the reasons that it advanced in some detail when considering the various criteria, was not able to reach a conclusion that at the time of the application the Applicant and the sponsor were in a genuine spousal relationship. It considered in some detail the criteria, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties' commitment to each other. It was entitled to consider all of those matters and specifically entitled to consider, as it did, free of error, the commitment of the sponsor to the Applicant; that is, it was entitled to consider what might be described as a mutual commitment.
The Tribunal in my view appears to have analysed in some detail the other criteria in a manner free of error. The only criticism one might have of the Tribunal's conclusions is that it not only considered the question of whether there was a genuine spousal relationship at the time of the application but further and indeed, unnecessarily went further by considering that there was not a genuine spousal relationship either at the time of the application or "at any time thereafter".

Conclusion

In my view, for those reasons it follows that the application as amended should be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 18 July 2006