FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 454 |
| MIGRATION – Migration Review Tribunal – spouse visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether the Tribunal had a duty to enquire in the circumstances of this case – whether reg.1.15A(1A)(b) is invalid. |
| Marriage Act 1961, s.88E Migration Regulations 1994, reg.1.15A, Sch 2 cl.100.221 |
| Applicant: | XIAO YING LI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1237 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Anthony Krohn |
| Solicitors for the Applicant: | Chua Tan & Associates |
| Counsel for the First Respondent: | Chris Horan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 2 October 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1237 of 2006
| XIAO YING LI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 2 October 2006 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 21 August 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant a partner visa to the applicant.
The applicant is a 40 year old female citizen of the Peoples Republic of China. On 1 March 2001, she married Mr Dinh Chuc Do (“the sponsor”) in China. On 6 March 2001, she lodged a combined visa application for a subclass 309 (temporary) and subclass 100 (permanent) partner visa. On 8 February 2002, she was granted a temporary partner visa and she arrived in Australia on 23 March 2002. On 29 October 2004, a delegate of the first respondent refused the permanent partner visa application.
On 18 November 2004, the applicant applied to the Tribunal for review of the decision of the delegate. On 4 September 2006, the Tribunal…
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- AGLC
- Li v MIAC [2007] FMCA 454
- Case
- [2007] FMCA 454
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Tribunal properly considered the duration of the relationship, as mandated by Regulation 1.15A(3)(d)(i) of the Migration Regulations. The applicant argued that the Tribunal failed to adequately consider the five and a half years of marriage, which should have influenced the assessment of the relationship's genuineness. Conversely, the respondent contended that the Tribunal had acknowledged the duration of the marriage and had appropriately weighed it in its overall assessment of the relationship's authenticity.
The court examined the Tribunal's reasoning and found that while it had noted the date of marriage, the Tribunal's focus was on the nature of the commitment and the genuineness of the relationship, rather than solely on the duration of the marriage. The Tribunal had considered the documentary evidence, including the date of marriage, but the court concluded that there was no indication the Tribunal failed to take into account the duration of the relationship. The court held that the Tribunal's consideration of the relationship's nature and genuineness, including its duration, was sufficient.
The Federal Court dismissed the application and ordered the applicant to pay the respondent's costs in the sum of $5,000.
Orders
Orders of the court
1.
The application filed on 2 October 2006 be dismissed.
2.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The applicant’s written contentions on this ground were as follows:(d) Duration of the relationship[22] The Tribunal failed to have regard to the duration of the relationship at the time of decision, by which time it was approximately five and a half years since their marriage, although this was a matter made relevant by Regulation 1.15A(3)(d)(i). The first respondent’s written submissions on this ground were as follows:[25] The applicant contends that the Tribunal failed to have regard to the duration of the relationship at the time of decision, which was made relevant by reg.1.15A(3)(d)(i). [footnote: Reg 1.15A(3)(d)(i) requires the decision-maker to have regard to the nature of the persons’ commitment to each other, including “the duration of the relationship”.][26] The Tribunal referred to the fact that the applicant and the sponsor were married on 1 March 2001 [CB168.5, 189.8]. It cannot be said that the Tribunal was not aware of the duration of the relationship, in the sense of the period for which the applicant and the sponsor had been married. However, the evidence raised significant doubts as to whether the relationship was genuine and continuing. As a consequence, the Tribunal addressed the nature of the persons’ commitment to each other together with the question whether the relationship was genuine and continuing [CB 197-199, paras 116-122].[27] Accordingly, the Tribunal did not fail to have regard to the nature of the parties’ commitment, including the duration of the relationship, in accordance with reg.1.15A(3)(d)(i). The applicant said in oral submissions in relation to this ground that the relationship had lasted for five and a half years at the time of the Tribunal’s decision and this fact went to the genuineness of the relationship. The first respondent pointed out that in paragraph 10 of its reasons for decision, the Tribunal noted that the applicant and sponsor were married in China on 1 March 2001. As the decision was signed on 21 August 2006, that meant that at the time of decision, the parties had been married for five and a half years. The first respondent said that by noting the date of marriage, the Tribunal demonstrated that it was aware of the duration of the marriage. The first respondent argued that the duration of the marriage did not in itself mean that it was genuine. The first respondent also argued that the Tribunal did not proceed on a misapprehension about the duration of the marriage. In reply, the applicant said that the mere mention of the date of the marriage is not enough to show that the duration of the marriage was taken into account. The applicant conceded that the length of the marriage gave rise to a question of weight. It is clear from regulation 1.15A(3)(d)(i) that the duration of the relationship is a matter to which the Tribunal must have regard in considering the nature of the persons’ commitment to each other. The regulation directs attention to the relationship as opposed to the formal marriage. Under the heading “the nature of the persons’ commitment to each other and whether the relationship is genuine and continuing”, the Tribunal noted at paragraph 116 of its reasons for decision that it had had regard to the documentary evidence submitted in support of the application. That included, among other things, the Form 40SP which set out the date of marriage. The Tribunal correctly set out the date of marriage at paragraph 10 of its reasons for decision. In these circumstances, there is no reason to suppose that the Tribunal did not take into account and give the weight it saw fit to the duration of the formal marriage.