Minister for Immigration & Border Protection v SZOXP

[2014] FCCA 565

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION & BORDER PROTECTION v SZOXP & ANOR [2014] FCCA 565

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the first respondent was in a de facto relationship with an Australian citizen in circumstances where the first respondent and the other person had never lived together and did not intend to do so until they were married – whether the Migration Review Tribunal erred in its construction of s.5CB(2)(c) of the Migration Act 1958 (Cth) in finding that it was not necessary for the first respondent and his partner ever to have lived together – jurisdictional error – writs issued.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5CB, 31, 65, 338
Migration Regulations 1994 (Cth) reg.820.211

Cases Cited:
Li v Minister for Immigration, Local Government and Ethnic Affairs (1992) FCR 568
SZOXP v Minister for Immigration and Citizenship & Anor [2011] HCASL 195

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: SZOXP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 823 of 2013

Judgment of: Judge Emmett

Hearing date: 11 March 2014

Date of Last Submission: 11 March 2014

Delivered at: Sydney

Delivered on: 26 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Justin Smith

Solicitors for the Applicant: DLA Piper

Counsel for the First Respondent: Mr Ashok Kumar

Solicitors for the Second Respondent: Australian Government Solicitors

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 823 of 2013

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

SZOXP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 15 March 2013 (“the MRT”).

2. The issue before this Court is whether the MRT erred in finding that the first respondent (“SZOXP”) and Ms Yang were in a de facto relationship in circumstances where they had never lived together and did not intend to do so until they were married.

Background

1. SZOXP last arrived in Australia on 16 February 2008 on a passport issued in his own name and a 456 Business visa.

2. On 22 June 2009, SZOXP lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 1 December 2011, the High Court of Australia finally determined SZOXP’s protection visa application against him (see: SZOXP v Minister for Immigration and Citizenship & Anor [2011] HCASL 195).

4. On 21 December 2011, SZOXP lodged an application to the Department for another Protection visa.

5. In June 2012, a delegate of the applicant refused to grant the Protection visa.

6. On 15 October 2012, SZOXP’s bridging visa expired and he was detained at Villawood Detention Centre in Sydney.

7. On 24 October 2012, the first respondent lodged an application to the Department for a Partner (Temporary) (Class UK) visa, sponsored by an Australian citizen, Ms Yang, whom SZOXP claimed was his de facto partner.

8. On 14 November 2012, a delegate of the applicant (“the Delegate”) refused to grant the partner visa, on the grounds that SZOXP and Ms Yang were not in a de facto relationship and therefore did not meet the criteria for a partner visa.

9. On 22 November 2012, SZOXP lodged an application for review of the Delegate’s decision by the MRT.

10. On 15 March 2013, the MRT found that the applicant was in a de facto relationship with Ms Yang and therefore met the requirements for a partner visa.

11. On 19 April 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a partner (Class UK) visa.

2. Under s.338 of the Act, a decision to refuse to grant a Partner visa is a decision which may be reviewed by the second respondent.

3. Relevantly, cl.820.211(2) of Schedule 2 to the Regulations provides as follows:

   “An applicant meets the requirements of this subclause
   if:

   (a) the applicant is the spouse or de facto partner of a person who:

4. Relevantly, s.5CB of the Act is as follows:

   “De facto partners

   (1)  For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)  For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)  they have a mutual commitment to a
   shared life to the exclusion of all others;
   and

   (b)  the relationship between them is genuine
   and continuing; and

   (c)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a 
   permanent basis; and

   (d)  they are not related by family (see
   subsection (4)).” (emphasis added)

The proceeding before this Court

1. The applicant was represented before this Court by Mr Justin Smith, of counsel.

2. SZOXP was represented before this Court by Mr Ashok Kumar, of counsel. 

3. The grounds of the applicant’s application are as follows:

   “The Second Respondent (The MRT) erred in its construction of the definition of ‘de facto relationship’ in section 5CB(2)(c) of the Migration Act 1958 (Cth) (the Act)

   Particulars

   (a)The MRT’s statement at [174] that ‘there is no requirement in the Act that the parties live together before a de facto relationship can be found to exist’ misapplies section 5CB(2)(c)(ii) of the Act in circumstances where the applicant and his sponsor have never lived together.”

4. In order to be entitled to the grant of the partner visa for which he applied, relevantly, SZOXP must satisfy cl.820.211(2)(a) of Schedule 2 to the Regulations that he is the de facto partner of an Australian citizen, in this case, Ms Yang. Section 5CB of the Act states that a person is in a de facto relationship with another person if they are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others; the relationship between them is genuine and continuing; they live together or do not live separately and apart on a permanent basis; and, they are not related by family.

5. The MRT found that the applicant and Ms Yang had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, and that they are not related by family. Accordingly, the MRT found that the applicant met the requirements of s.5CB(2)(a),(b) and (d) of the Act. Those findings are unchallenged by the applicant. It is also common ground that the applicant and Ms Yang have never lived together, although they have subsequently married.

6. However, to satisfy all the requirements of s.5CB of the Act, SZOXP must satisfy the relevant decision maker that pursuant to s.5CB(2)(c)(i) and (ii) of the Act, SZOXP is in a de facto relationship with Ms Yang and that they live together or do not live separately or apart on a permanent basis.

7. The MRT found that there was no requirement in the Act that the parties live together before a de facto relationship can be found to exist. The MRT found that SZOXP and Ms Yang did not live together because they wanted to marry first. The MRT found that at the time of the visa application and at the time of decision, SZOXP and Ms Yang did not live separately and apart on a permanent basis and therefore met the requirement in s.5CB(2)(c) of the Act. The MRT referred to Li v Minister for Immigration, Local Government and Ethnic Affairs (1992) FCR 568 (“Li”).

8. In Li, the parties were married in China and had lived together in China as man and wife. The husband was an Australian citizen and returned to Australia to sponsor his wife’s partner visa application to Australia.  The husband withdrew his sponsorship before the wife arrived in Australia which led to the cancellation of her partner visa. The Court found that at the time of the visa application, the parties intended to resume living together and that any separation was not permanent.

9. Both the MRT and SZOXP relied on the statement in Li at [576] where Hill J stated that the question whether the separation is permanent depends on the mutual intention of both husband and wife. However, that reliance ignores the fact that in Li the husband and wife had lived together in China as man and wife prior to the lodgement of the partner visa application.

10. Mr Smith contended that the MRT misconstrued the meaning of ‘de facto relationship’ in s.5CB of the Act in finding that there was no requirement for the parties to the relationship ever to have lived together. Mr Smith submitted that on its proper construction, s.5CB(2)(c)(ii) of the Act does require some cohabitation. Mr Smith referred the Court to the passage in Li at [576] where Hill J stated as follows:

    “The applicant and her husband were not, of course, physically living together; they were separated as a result of the exigencies of the Chinese political situation. However, that separation, at least when it began, was not “permanent”… in that it would seem that there was the intention that they would resume cohabitation in the future.” (emphasis added)

11. Mr Smith submitted that the notion referred to by Hill J in Li that the parties would “resume cohabitation”, supported the applicant’s contention that either SZOXP and Ms Yang were living together; or, as a temporary alternative, are not living separately and apart on a permanent basis.

12. The Oxford English Dictionary defines ‘resume’ as “To begin again or continue (a practice, occupation, course, etc.) after interruption.” As such, to ‘resume cohabitation’ there must first be cohabitation, then an interruption, and after the interruption, the continuance of the cohabitation as before the interruption. In the case before this Court, there had never been any cohabitation and, therefore, there can be no resumption.

13. The only oral submission made by counsel for SZOXP, Mr Kumar, was that the MRT committed jurisdictional error. Mr Kumar did not elaborate orally on that submission. At the heart of Mr Kumar’s written submissions appeared to be a contention that “live” in s.5CB(2)(ii) of the Act (“do not live separately and apart on a permanent basis”), is framed “in present terms and prospective terms and not in retrospective terms”. I understand such contention is intended to support SZOXP’s submission that the MRT was correct to find that it was not necessary for SZOXP and Ms Yang ever to have lived together in order to satisfy the meaning of de facto relationship as referred to in s.5CB of the Act.

14. However, although obiter dicta, I accept Hill J’s analysis in Li that any temporary separation contemplated a resumption of cohabitation and that s.5CB(2)(ii) of the Act should not be read in isolation from s.5CB(2)(i) of the Act, which requires that the parties live together.

15. The clear evidence before the MRT, and which it accepted, was that SZOXP and Ms Yang had never lived together and did not intend to do so until they were married.

16. The facts as found by the MRT were that because SZOXP and Ms Yang intended to marry in the future, they did not intend to live separately and apart on a permanent basis, and that they were otherwise not required to have lived together in order to be in a de facto relationship.

17. I accept the submission of counsel for the applicant that a proper construction of s.5CB(2)(c) of the Act requires either that the parties to the relationship live together, or, if separated and living apart, such state is not permanent. Plainly, the legislation contemplates that a couple who are living together may be separated temporarily for many reasons. However, in such circumstances, it must be their intention to ‘resume’ cohabitation. SZOXP and Ms Yang had never lived together and had no such intention to do so until they were married.

18. Of course, once married, they could not satisfy the requirements in s.5CB of the Act as, to be in a de facto relationship, they must not be married.

19. In the circumstances, there was jurisdictional error on the part of the MRT in finding that there is no requirement in the Act that SZOXP and Ms Yang live together before a de facto relationship can be found to exist.

20. Accordingly, the decision of the MRT should be set aside and the matter remitted to the MRT for a decision according to law.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    26 March 2014