MEKONEN v Minister for Immigration
[2009] FMCA 1188
•7 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEKONEN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1188 |
| MIGRATION – Whether genuine intention to marry shows genuine intention to live together as spouses – separate criteria. |
| Marriage Act 1961, s.12 Migration Regulations 1994, sch.2, r.1.20J |
| Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 10 SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Road Corporation v Dacakis [1995] 2 VR 508 Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC) Zuway v Minister for Immigration and Multicultural Affairs 160 ALR SZBCE v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 697 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Marshood v Minister for Immigration and Multicultural Affairs [2000] FCA 1536 SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 VWST v Minister for Immigration and Multicultural Affairs [2004] FCAFC 286 NATC v Minister for Immigration and Indigenous Affairs [2004] FCAFC 52 W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66 Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S 20/2002 (2003) 198 ALR 59 NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 S157/2002 v Commonwealth (2003) 211 CLR 476 Attorney-General (NSW) v Quin (1990) 170 CLR 1 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 Abebe v Commonwealth (1999) 197 CLR 510 Habbabe and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 163 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 |
| Applicant: | FEKADE MEKONEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 490 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 7 October 2009 |
| Date of Last Submission: | 7 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 29 April 2009 and amended application filed 28 August 2009 are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 490 of 2009
| FEKADE MEKONEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal to affirm a decision of a Delegate to the Minister not to grant the applicant a Prospective Marriage (Temporary) (Class TO) Visa.
The main issues raised in the Review are:
·Whether the decision was irrational, illogical and not based on findings of fact supported by logical grounds.
·Whether a genuine intention to marry shows a genuine intention to live together as spouses.
·Whether the Tribunal misconstrued the criteria regarding the genuineness of the parties’ intention and applied the wrong test.
The above issues are extracted from the grounds in the application and the amended application and from the transcript of proceedings.
The Prospective Marriage (Temporary) (Class TO) visa is a visa for persons seeking to enter Australia to marry, after their first entry into Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse, with a view to remaining permanently. It is a subclass 300 visa. The primary criteria for a Subclass 300 Visa are set out in Part 300 of Schedule 2 of the Migration Regulations 1994.
The primary criteria to be satisfied at the time of application, being
29 April 2009 were as follows (Court Book 119):
·the visa applicant intends to marry a person (the prospective spouse) who is an Australian Citizen, Australian permanent resident or an eligible New Zealand citizen: cl.300.211
·the prospective spouse is not prohibited for specified reasons from being a sponsor: cl.300.212
·the visa applicant is sponsored by the prospective spouse, or if the spouse or intended spouse is under 18, by a parent or guardian of the prospective spouse: cl.300.213
·the parties have met and are known to each other personally: cl.300.214
·the visa applicant establishes that the parties genuinely intend to marry and intend that the marriage will take place within the visa period: cl.300.215; and
·the decision maker is satisfied that the parties genuinely intend to live together as spouses: cl.300.216
The primary criteria to be satisfied at the time of decision were as follows:
·the applicant continues to meet cl.300.211, 300.214, 300.215 and 300.216: (cl.300.221)
·there is no impediment to the marriage in Australian law: 300.221A. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s.12 of the Marriage Act 1961 (the Marriage Act) authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: 300.221B
·the sponsorship has been approved by the Minister in accordance with r.1.20J of the Regulations and is still in force: cl.300.222
·the visa applicant and family members satisfy certain public interest criteria and special return criteria: cl.300.223, 300.224, 300.226 and 300.227
·any requested assurance of support has been given and accepted: cl.300.225; and
·in the case of visa applications made on or after 1 July 2005, the visa applicant meets certain passport requirements: cl.300.228
The sole ground relied on by the applicant before the Court is that the Tribunal’s decision that the parties genuinely intended to marry, but did not genuinely intend to live together as spouses, is illogical
(Transcript p.2 line 23).
The Court finds that the Tribunal was correct in considering the issues of “intention to marry” and “intention to live together as spouses” as separate criteria.
The applicant agreed that the criteria are different under cl.300.215 and cl.300.216 (Applicant’s Contentions of Fact and Law paragraph 21) (Transcript p.12 line 5), but says the same test of “genuineness” applies. There is obviously a difference between a genuine intention to do one thing (cl.300.215), and to do another (cl.300.216).
The criteria are set out in different clauses. If it was intended that the same test was to apply to both it would have been a simple matter of drafting for the issues of genuine intention to marry and to live together to have been in the same clause. The Court finds that it is not intended that once people show a genuine intention to marry it is automatic that they also have a genuine intention to live together as spouses. The Court put an example of that to Mr Gibson, for the applicant,
(at Transcript page 5 line 20).
The decision in Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 10 was referred to but is distinguishable, as the Full Court there considered the issues together where it observed at [28]:
“…the decision to marry and live together as spouses involves a commitment to physical cohabitation…”
That was stated in circumstances where the Court was required to decide the issue of “whether the parties have met and are known to each other personally” as required by clause 300.214, of Schedule 2 to the Migration Regulations. The Court was therefore not required to decide the issue for decision in the present case.
The Full Court in Yucesan stated that:
“The single issue in this appeal is whether the requirement that the parties “have met” can be satisfied where they have never been in each other’s physical presence.” [9]
The statement in paragraph [28] is therefore obiter dictum and not binding on the Court.
The Court finds that the Tribunal was correct in treating the requirements “that the parties genuinely intend to marry” (cl.300.215) and “genuinely intend to live together as spouses” (cl.300.216) as separate issues that involve a significantly different test
(Court Book 125.8). The Tribunal had concerns in finding that the parties genuinely intend to marry (Court Book 125.7) which involves “an act, a process or a function” (Court Book 125.8). That is the sense in which the Tribunal found the parties genuinely intend to marry.
The Court finds no illogicality in the Tribunal finding that the parties genuinely intended to marry (Court Book 125.7) but that they did not intend to live together as spouses at the time of the visa application (Court Book 127.8).
The Tribunal gave the distinction extensive consideration (Court Book 125.8 to 127.8) which included the considerations for a spousal relationship in r.1.15A. In Habbabe and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 163 Riethmuller FM at [17] decided that r.1.15A can be used to interpret cl.300.216. Mr Gibson submitted for the applicant that the Tribunal relied only on the choice of wedding ceremony to find that the parties did not genuinely intend to live together, and submitted that
“If it was something else…there would not be this necessary connection.” (Transcript p11 l30)
There were many issues which led the Tribunal to decide that the parties did not genuinely intend to the live together as spouses. Those issues are set out (Court Book 125.8 to 127.8). The choice of wedding ceremony was as additional consideration (Court Book 127.4).
The issue the applicant seeks to agitate is an impermissible attack on the factual findings of the Tribunal. The challenge is an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 697:
“31 This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established.”
Insofar as the applicant contends that the finding was illogical, in SZZEO v Minister for Immigration and Multicultural Affairs [2005] FCA 546, Tamberlin J following a number of earlier Full Court authorities, said on the issue of want of logic in respect of Tribunal decisions:
“14 The law is settled at the appellate level in this Court that the want of logic does not, of itself, suffice to constitute an error of law: see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [30] per the Court (NACB); VWST v Minister for Immigration and Multicultural Affairs [2004] FCAFC 286 at [18]-[19] per the Court (VWST); NATC v Minister for Immigration and Indigenous Affairs [2004] FCAFC 52 at [25] per the Court (NATC); and W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] per Lee and Carr JJ. In the accordance with the settled authority, I would not depart from these decisions unless I formed the view that they were clearly in principle on this point.”
In WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Nicholson J said:
“37 The appellant also relied on the contention that the Tribunal’s finding in the core paragraph was ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’…I accept the submission of the respondents that a body of the Federal Court authority has made it clear that, notwithstanding the decision of the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S 20/2002 (2003) 198 ALR 59, want of logic, or rationality, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional: NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 and VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA at [76]-[79].”
As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:
“…the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review”: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29].
Mr Gibson referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 where Justices Gummow and Hayne stated at [38]:
“The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.”
The Court finds that the decision of the Tribunal is not irrational or illogical and it is based on findings supported by logical grounds.
Mr Gibson referred then to the decision of Justice Greenwood in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32]:
“that a finding not based on logical grounds will give rise to an error of jurisdiction it there is no evidence to support the finding.”
Here there is evidence to support the finding of the Tribunal.
The reasoning of the Tribunal is not illogical, and even it is, that does not establish a jurisdictional error. The finding that the parties did not intend to live together as spouses was based on the evidence and findings set out by the Tribunal, including that:
·the parties indicated that they knew nothing of each others finances (Court Book 126.2)
·the have discussed little about plans for a household they would share – their living arrangement, plan to have children
(Court Book 126.4)·the visa applicant showed no knowledge of the review applicant’s current condition or prognosis (Court Book 126.6)
·the Optus phone bills are for a period after the visa application was lodged (Court Book 127.2)
·the parties’ option to hold a civil ceremony, given the expression of their religious adherence, gives rise to serious concern about their genuine commitment to a marriage where they genuinely intend to live together as husband and wife. (Court Book 127.4) They were both “unable to provide a plausible reason for opting for a civil ceremony” (Court Book 127.6)
The Court notes that throughout those considerations the Tribunal was looking at intentions and future plans (Court Book 126.1, .2, .3, .4, .6 and 127.1, .8)
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
As stated by Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510.”
As there was evidence to support the finding, if there was an error of fact, and the Court finds that there was not, it would not be a jurisdictional error.
The applicant seeks to rely on a finding in Habbabe and Anor v Minister for Immigration and Anor [2006] FMCA 163 at [20] as to the financial aspects of a relationship:
“…it is difficult to see what weight could be placed upon the lack of mingled finances when the parties are living in Germany and Australia respectively…”
In the present case the Tribunal noted that the parties “knew nothing of each others finances” and that “they had not discussed such matters” (Court Book 126.2). Taken with the other evidence discussed with the Tribunal, there was evidence to support its finding the parties do not intend to live together as spouses.
The applicant seeks also to rely on a finding in Habbabe Supra [at 22]:
“…that it would be very difficult for the parties to establish a social aspect to the relationship, given their respective living arrangements have provided very limited opportunity for them to spend time together.”
In the present case the Tribunal noted material presented and gave some, albeit little, weight to the evidence that the parties represent themselves as a couple (Court Book 126.5). No evidence was referred to of any intention to represent themselves as a couple in the future. It has not been submitted that any such material was before the Tribunal.
It is submitted for the applicant that in the present case the Tribunal, when considering the money transfers, drew an adverse inference about the prospective pooling of financial resources. That contention is incorrect; an adverse inference was not drawn; the Tribunal considered the money transfers in light of the fact that the review applicants’ income is low. (Court Book 126.3)
As the individual facts of each case must be considered in determining the relevance of the matters in reg.1.15A, the decision in Habbabe cannot be used to show an error of jurisdiction in this case.
The Court finds that is was permissible for the Tribunal to refer to reg.1.15A criteria to form a view about people's intention to live together Habbabe (Supra) [17].
The Court finds that as noted above, the Tribunal considered the future intentions of the parties (Court Book 126 – 127).
The Court finds that the criteria in Regulation 1.15A and clauses 300.215 and 300.216 of Schedule 2 to the Migration Regulations 1994 were not misconstrued.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 7 December 2009
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