Le v Minister for Immigration
[2008] FMCA 1367
•6 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1367 |
| MIGRATION – Categories of visas – family migration – spouses – aged dependant relative – whether de facto relationships included in definition of ‘married’ for Reg 1.03. |
| Marriage Act1961 Migration Act1958, s.12 Migration Regulations1994, reg.1.03, 1.15A |
| James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91; [2002] FCA 383; 118 FCR 493, 68 ALD 96 Li v Minister for Immigration and Citizenship [2007] FCA 1098, (2007) 96 ALD 361 [2007] ALMD 7080 |
| Applicant: | THI HONG HANH LE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 357 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 July 2008 |
| Date of Last Submission: | 25 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Koenig & Simons Solicitors |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of Certiorari issue quashing the decision of the second respondent made on 18 February 2008.
A writ of mandamus issue requiring the second respondent to determine the application according to law.
The respondent shall pay the costs of the applicant fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 357 of 2008
| THI HONG HANH LE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks orders to judicially review the decision of the Migration Review Tribunal made on 18 February 2008.
The applicant is an Australian citizen seeking to sponsor her ageing father to migrate to Australia from Vietnam.
At the Tribunal hearing, the Tribunal made findings of fact to the effect that the visa applicant was in a de facto relationship, and had not formally separated from his de facto spouse, and was therefore outside of the definition of "aged dependent relative" in reg.1.03. The application turns entirely upon the meaning of the relevant definition in reg.1.03.
The relevant definition in this case is contained in reg.1.03 for ‘aged dependent relative’ which provides:
aged dependent relative, in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and
(b) has been dependent on that person for a reasonable period, and remains so dependent; and
(c) is old enough to be granted an age pension under the Social Security Act 1991.
It is only with respect to sub-para.(a) of the definition that this case relates. The applicant says that as the Tribunal had found that her father had never married. He came within the definition whether or not he had separated from his de facto spouse.
Counsel for the Minister argues that the word ‘married’ in the Regulation should be taken to include de facto relationships in order for the Regulation to operate appropriately.
There are other references to marriage in the Migration Act and Regulations. Section 12 of the Migration Act provides:
12 [Application of Part VA of the Marriage Act] For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
Reg.1.03 contains a definition for ‘marital relationship’ in these terms:
marital relationship includes a de facto relationship.
There is a specific definition contained in the Regulations for ‘spouse’ which clearly includes both married spouses and de facto spouses:
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).
…
Counsel for the Minister could not identify anywhere in the Migration Act where the term ‘married’ was read as including de facto relationships. Similarly, no appearance of the word ‘married’ read to include a de facto relationship, in other legislation, was able to be identified by the respondent.
It appears to me that the term ‘married’ has a specific legal meaning, clearly defined in Australia by the Marriage Act. The meaning of married is a well defined legal term that has great importance in Constitutional issues when the Commonwealth exercises power with respect to matrimonial causes. Of course, the power to make regulations under the Migration Act does not depend in any way upon the matrimonial causes power, and it is open to the government to define the term ‘married’ to have a broader definition for the purposes of the Migration Act than it would have for constitutional law or in legislation relying on the matrimonial causes power. It is open to the legislature to define ‘marriage’ as it sees fit for the purpose of the Migration Act: Li v Minister for Immigration and Citizenship [2007] FCA 1098, (2007) 96 ALD 361 [2007] ALMD 7080 at [12].
On the face of the provision, it appears unlikely that the term ‘married’ could be interpreted as having a broader meaning. The Minister heavily relied upon the definition of ‘matrimonial relationship’ and the definition of ‘spouse’ contained in the Regulations. Section 12 of the Act appears to me to tell against a definition of ‘marriage’ as including de facto relationships as put forward by the Minister. The regulation could have used the term ‘matrimonial relationship’ if the broader definition was intended.
The definition of ‘formally separated’ in reg.1.03 was considered in James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91; [2002] FCA 383; 118 FCR 493, 68 ALD 96, a decision of the Full Court of the Federal Court. That decision concerned a case where the parties had been married, and was focused upon the meaning of ‘formal separation’ in the Regulation. Heerey J noted that ‘spouse’ included a de facto as well as a married spouse as a result of reg.1.15A, and that de facto spouses have a relationship, the establishment of and termination of which occurs without any intervention or assistance of the State. His Honour concluded that the expression ‘formally separated’ had to be given work to do in the case of de facto spouses and therefore concluded that the term had a natural meaning wider than ‘legally separated’ which extended:
[22] … at least to a permanent, physical separation manifested clearly and explicitly by the conduct of the parties, including, but not limited to, their entering into a written agreement for separation. There is no basis for reading into par (a) a requirement that the sanction or approval of some court or public authority is required.
[23] Moreover, it is to be noted that par (a) speaks of the relative being "formally separated from his or her spouse". "Spouse" includes de facto as well as married spouse: reg 1.15A. Determination of the existence or otherwise of a de facto relationship involves factual questions such as whether there is a "mutual commitment to a shared life as husband and wife to the exclusion of all others" and whether the relationship is "genuine and continuing": reg 1.15A(2)(c)(i) and (ii). Obviously enough de facto spouses could be "formally separated" without any Court order; indeed it is of the essence of a de facto relationship that its termination as well as its establishment occurs without the intervention of the State. But the expression "formally separated" has got to be given work to do in the case of de facto spouses. The meaning suggested in the preceding paragraph could apply in the case of de facto spouses, just as it does with de jure ones, albeit in the latter case it would also be open for reliance to be placed on a court decree of judicial separation or court-sanctioned agreement, if it existed.
It is clear in that case that argument was not addressed to the meaning of the word ‘married’ in the Regulations, nor was it necessary for the Court to turn its attention to that issue as the case did not concern a person who had never been married. However, as counsel for the Minister pointed out, the reasoning of Heerey J with respect to the term ‘spouse’ and the operation of ‘formally separated’ indicates that his Honour must have held the view that those in a de facto relationship must be separated from their spouse to fall within the definition. Ergo, it was argued, the term ‘married’ as it appears earlier in the definition would need to be read as including de facto couples. Having regard to the fact that none of this was explicitly stated by his Honour in the judgment, it is not clear to me that his Honour was addressing this question at all. Nonetheless, the terms of his Honour's judgment appears to require such a reading if the term ‘formally separated’ is to be given the meaning found by his Honour, for the reasons stated.
Cooper J, in his own decision, concluded that persons who had never married, were widowed or divorced had "no obligations or duties to cohabit with a spouse arising from a subsistent marriage" (see para.33). His Honour went on to state:
[34] In my view there is a discernible genus in the categories "never married", "widowed" and "divorced", and that is a class of persons who have no duties or obligations to cohabit with a spouse at the time of making the application for a visa. The intention of par (a) of the definition was to treat each of the categories as being similarly placed, and that requires, in my view, that an applicant who is formally separated from his or her spouse likewise be under no obligation or duty of cohabitation to the other party to the marriage. The consequence is that the formal separation of which the paragraph speaks is one which relieves the applicant from any obligation to cohabit with his or her spouse.
[35] Although it is possible that an applicant may be able to point to some act occurring in Australia which has the effect under Australian municipal law of releasing the applicant for the visa from any obligation to cohabit with his or her spouse, the likelihood is that the applicant will rely upon some act which occurred overseas which the applicant claims had the effect under some foreign system of law of releasing the applicant from any obligation of cohabitation arising from the status of being married. In the latter case, the applicant must show that under the applicable foreign law there has occurred an act which that foreign law recognises as valid and effective to relieve the applicant from any obligation to cohabit with his or her spouse and that the legal effect of the foreign law is recognised in Australia under the common law rules of private international law or s 104 of the Family Law Act 1975 (Cth).
The gravamen of the judgment of Cooper J in James is that the Tribunal was required to consider whether or not a valid and effective release had been achieved by the appellant from any obligation to cohabit with his wife at the time of making application for the visa (see para.38). On this reasoning, a de facto relationship would not fall within the meaning of the term "married", as a de facto relationship does not give rise to any obligation to cohabit with a de facto spouse.
The third judgment in James’ case is that of Finkelstein J, who concluded:
[45] It is clear that when used in the regulation the word "separated" must contemplate either an agreement between husband and wife to separate permanently, or a mere physical separation, even though such separation may be wilful and continuous. Each of the other expressions that are found in the regulation, namely "never married", "widowed" and "divorced" are concerned with status. It is a status where none of the ordinary incidents of a marriage exist. This suggests that to be "separated" from his or her spouse, means separated in a way that will affect status, and remove the usual rights and obligations that subsist between married partners. Under Australian law, that would require at least an agreement to separate permanently. What of the requirement that the separation be "formal"? I think that the use of this word does no more than confirm that the separation must be "legal", that it be a separation of a kind which is recognised as bringing about a change in status, as distinguished from the case where parties are merely living apart. It is not uncommon to find the word "formal" used when speaking of a separation by agreement (see eg Lacey at 49).
[46]Thus, in my opinion, the expression "formally separated" primarily contemplates a separation between husband and wife that is both consensual (whether it be written or oral) and intended to be permanent. But it would also cover cases where there has been both a physical separation and some other act which, according to the law that governs the marriage, would bring about a change in the status of husband and wife. For instance a judicial decree of separation, which may be made by courts in some countries, would suffice. So, also, would an equivalent order by a religious tribunal. (emphasis added)
It appears that his Honour's reasoning proceeded on the basis that a separation sufficiently formal for the section is one that would bring about a change in the status of married partners. As the rights and obligations of a married couple do not subsist between de factos, such as an obligation to cohabit or support each other, it therefore appears that the meaning of the term ‘married’ does not include de factos on the reasoning of the judgment of Finkelstein J.
For these reasons, I am persuaded that whilst the ratio of the decision in James’ case does not contain a ratio on the point I must decide, the effect of the reasoning in the case by the majority, Cooper and Finkelstein JJ, leads to the conclusion that the term ‘married’ carries its ordinary meaning and would not include a de facto relationship.
It is appropriate that I make a decision consistent with the reasoning of the majority in James’ case.
I therefore find that writs of certiorari and mandamus ought to issue quashing the decision of the Tribunal and requiring them to determine the matter according to law.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 6 October 2008
0
3
3