LI v Minister for Immigration - [2005] FMCA 1733

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1733

MIGRATION – MRT decision – spouse visa – mutual commitment of husband and wife – Tribunal unable to be satisfied due to absence of nominating wife – application for judicial review dismissed due to absence of applicant – no prospect of success – default order not set aside.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.483A
Migration Regulations 1994 (Cth), regs.1.15A, 1.15A(1A)(b), 1.15A(3)(d), Sch.2 item 820.211

Applicant:

JIE LI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1730 of 2005

Judgment of:

Smith FM

Hearing date:

14 November 2005

Delivered at:

Sydney

Delivered on:

14 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Cox

Solicitors for the Respondents:

Phillips Fox

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 18 October 2005 is refused.
The applicant must pay the first respondent’s costs in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1730 of 2005

JIE LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this matter is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders setting aside a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 20 June 2005. The Tribunal affirmed a decision of a delegate made on 2 September 2003 that the applicant was not entitled to the grant of a partner (temporary) (class UK) visa nor a partner (residence) (class BS) visa.
For the applicant to be found eligible for those visas, the delegate, and the Tribunal on review, were required to be satisfied within the terms of Item 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) that at the time of application “the applicant is the spouse of a person” who was an Australian citizen and was nominating the applicant.
“Spouse” is defined in Regulation 1.15A to require not only a married relationship, but also that the Minister be satisfied in terms of reg.1.15A(1A)(b) 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.
There is a definition of the matters which the Minister is required to take into account when assessing the relationship, which includes in reg.1.15A(3):
(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.
Plainly the assessment of mutual commitment and the genuineness of the relationship requires an exploration by the decision‑maker into the subjective state of both members of the marriage.
In the present case the delegate, after interviewing the applicant and his wife, was not satisfied that they had a mutual commitment to a shared life as husband and wife. The delegate’s reasons made that clear.
The applicant then appealed to the Migration Review Tribunal on 11 September 2003 assisted by an agent. He was invited to a hearing before the Tribunal on 25 November 2004. The invitation specifically informed the applicant and his agent:
The Presiding Member has requested that the nominator Ms Min Zhang attend the hearing to provide evidence. Please ensure she is available at the above date and time.
The applicant attended the hearing, but the nominating wife did not.
In its statement of reasons the Tribunal indicated that at many points during the hearing the Tribunal drew attention to the absence of the nominator, and gave the applicant opportunities to obtain her presence or to explain her absence. The Tribunal also noted that no application was made for an adjourned hearing to enable evidence to be given by the nominator.
Its reasons stated that the Tribunal gave what it said was “strong regard” to the fact that the nominator did not attend, that no adjournment was sought, and that no satisfactory explanation for the absence of the nominator was given. It concluded:
38.The evidence presented to the Tribunal as part of the application for review is really only more of the same evidence that was presented to the Department which was found to be unsatisfactory to support the claims that the couple were in a spousal relationship as required by the regulations.
39.The real issues that were of concern to the Department have not been addressed by the applicant and there is no objective evidence to support the claims the couple meet all the requirements of Regulation 1.15A.
40.The evidence is such that the Tribunal is able to say that the review applicant and nominator are known to each other and that they may have, and may continue to reside at the same address and share expenses. However in the absence of further evidence from the nominator the Tribunal is unable to make a finding as to whether there is a mutual commitment to a shared life husband and wife.
41.Apart from the claims of the review applicant that he and the nominator have an ongoing spouse relationship there is no other objective evidence before the Tribunal to substantiate that claim. The nominator has not supported the claim.
The Tribunal concluded:
44.… The visa applicant was not in a spousal relationship with the nominator at the time of the visa application.
The application in this Court was filed on 4 July 2005, and had a first court date appointment for 27 July 2005. The applicant attended before me on that occasion, and I gave directions for the applicant to file an amended application giving complete particulars and any affidavit evidence by 4 October 2005. My written order, which was given to the applicant and explained to him by me, clearly said: “The proceeding is adjourned for further directions on 18 October 2005 at 10.15 am at Court 6D, John Maddison Tower, Level 6, 88 Goulburn Street, Sydney”. The applicant did not attend at that time nor for a reasonable period of waiting for his attendance, and I dismissed his application in his absence under Rule 13.03A(c).
On 25 October 2005, the applicant applied to set aside my default order. An affidavit says:
I attended the directions hearing scheduled on 18‑10‑2005 before FM Smith. But I went to level 8 instead of level 6 D which the directions hearing held.
The applicant has given evidence on oath today consistent with this claim, and I am inclined to believe him. Taking into account the short period before he applied to set aside the order, I would be disposed to do that if I were satisfied that there was any possibility of success in his principal application.
However, I have carefully considered the material which is now before the Court in the court book, and the Tribunal’s reasons in particular. In my opinion, the Tribunal’s reasoning which I have explained above was undoubtedly open to it. The Tribunal directly addressed the difficult issues of the nature of the subjective relationship between the applicant and his wife, and drew the conclusion that it was not satisfied based on the absence of evidence from the nominator in the circumstances I have described. I can see no argument, even slightly arguable, that the Tribunal made any error of law when reasoning in that manner. I consider that if I restored the matter to the list its prospects are hopeless.
In reaching that conclusion, I have carefully considered the grounds put before the Court by the applicant in his application, his amended application and orally to me today. In both his application and his amended application, three of four paragraphs assert a state of fact contrary to the finding of the Tribunal, but do not identify any arguable error in the Tribunal’s conclusions about those facts.
The amended application also claims that “the Immigration Department has deliberately ignored a huge amount of facts when processing this application” and that “the Migration Review Tribunal has overlooked some of the claims the applicant has made and reached a decision due to this failure to look at those claims”. However, no particulars are given in relation to either of these complaints insofar as they are directed at the Migration Review Tribunal, and the applicant has not pointed to anything today.
Moreover, as I have explained above, the essential reasoning of the Tribunal did not turn upon its assessment of documents which had been presented by the applicant, but upon its inability to form an assessment which it reasonably thought required it to be able to interview the applicant’s wife. I consider that there is no prospect of success in any of the grounds which the applicant has stated in his amended application.
The applicant’s submissions to me today sought to explain his wife’s absence from the Tribunal by reference to unspecified mental problems which she suffers from. These may or may not be true, but they do not assist the applicant’s prospects in his application in this Court.
For the above reasons I have decided that it would be futile for me to set aside my previous order, and I decline to do so.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 28 November 2005