Narayan v Minister for Immigration - [2008] FMCA 64

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARAYAN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 64

MIGRATION – Judicial review of Migration Review Tribunal decision refusing to grant a temporary spouse visa and permanent spouse visa – whether jurisdictional error.

Migration Act 1958, ss.353(2)(a), 359
Migration Regulations 1994, reg.1.15

Narayan v Minister for Immigration & Anor [2006] FMCA 658
Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [35]
Bretag v Immigration Review Tribunal (Federal Court of Australia O’Loughlin J 29 November 1991 unreported)

Applicant:

AVINESH NARAYAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 839 of 2007

Judgment of:

McInnis FM

Hearing date:

22 November 2007

Delivered at:

Melbourne

Delivered on:

24 January 2008

REPRESENTATION

Solicitor for the Applicant:

Mr T Fernandez

Solicitors for the Applicant:

T. A Fernandez

Counsel for the Respondent:

Mr C Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 839 of 2007

AVINESH NARAYAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 15 May 2007.
In its decision the Tribunal affirmed a decision not to grant the Applicant a Partner (Temporary) (Class UK) visa nor a Partner (Residence) (Class BS) visa known respectively as temporary spouse visa and permanent spouse visa.
The Applicant is a citizen of Fiji. He arrived in Australia on 16 January 1999.
On 2 March 1999 the Applicant married Sandhya Gaundar (the nominator), an Australian citizen born in 1977.
On 11 June 1999 the nominator attended an interview at the Investigation Section of the First Respondent’s Department. According to a file note (Court Book p.42) the nominator was then accompanied by a male of Indian appearance and a female of Anglo Australian appearance. Through the course of the interview with an officer of the Investigation Section the nominator signed a hand written note which relevantly stated that she wished to “withdraw my spouse application due to relationship broken down”.
The file note of the meeting with the officer of the Investigation Section contains the following:
“She stated that she wished to report a contrived marriage.
I asked her to explain what she meant and who the marriage was between.
She said that she was forced into a marriage with Avinesh by her parents.
She stressed it was an arranged marriage, she didn’t want to marry Avinesh but she had no choice.
…
I asked her how she met Avinesh. She said that it was all arranged through her parents. I asked how her parents met Avinesh. She said she does not know.
…
I asked have you and Avinesh ever lived together. She said yes after the marriage, but we never slept together.
I asked,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 64
Decision Date: 24 January 2008

CaseChat Overview and Summary

In the case of Narayan v Minister for Immigration, the primary issue before the court was whether the applicant, Narayan, was in a de facto relationship with another individual, sufficient to qualify as a spouse under the Migration Regulations. The Minister for Immigration had previously decided that the relationship did not meet the criteria for a de facto relationship, leading to the refusal of the applicant's visa application. The applicant subsequently sought judicial review of this decision in the Federal Court.

The central legal issue the court had to address was the interpretation and application of Regulation 1.15A of the Migration Regulations, which defines what constitutes a de facto relationship for the purposes of visa applications. Specifically, the court had to determine whether the relationship between Narayan and the other individual satisfied the requirements of mutual commitment, genuineness, and continuity as outlined in the regulation. The court also considered whether the Minister had appropriately exercised his discretion in assessing the relationship and whether there were any errors in the application of the regulation.

The court found that the Minister's decision was based on a proper interpretation of Regulation 1.15A. The court examined the evidence provided and concluded that the relationship did not meet the stringent criteria for a de facto relationship under the regulation. The court held that the Minister had considered all relevant factors, including the financial, social, and commitment aspects of the relationship, and had reasonably determined that the relationship did not qualify as a de facto relationship. The court further found no error in the Minister's decision-making process.

The court dismissed the application for judicial review and ordered that the applicant pay the costs of the first respondent, fixed at $5,000.00.

Orders

Orders of the court

The Application be dismissed.

The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Regulation 1.15A provides as follows:Migration Regulation 1.15ASpouse (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). (1A) Persons are in a married relationship if: (a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied 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. (2) Persons are in a de facto relationship if: (a) they: (i) are of opposite sexes; and (ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and (iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961 ; and (b) they are of full age, that is: (i) if either of the persons is domiciled in Australia -- both of them have turned 18; or (ii) if neither of the persons is domiciled in Australia -- both of them have turned 16; and (c) the Minister is satisfied 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; and (d)subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa -- the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship: (i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them was genuine and continuing; and (iii) they had: (A) been living together; or (B)not been living separately and apart on a permanent basis; and (e)where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa -- the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997: (i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them was genuine and continuing; and (iii) they had: (A) been living together; or (B)not been living separately and apart on a permanent basis. (2A) Paragraph 2 (d) does not apply if: (a) the applicant is applying as: (i) the spouse of a person who: (A)is, or was, the holder of a permanent humanitarian visa; and (B)before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or (ii) a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or (b)the applicant can establish compelling and compassionate circumstances for the grant of the visa. Note permanent humanitarian visa is defined in regulation 1.03. (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: (ad) a Partner (Migrant) (Class BC) visa; or (ae) a Partner (Provisional) (Class UF) visa; or (af) a Partner (Residence) (Class BS) visa; or (ag) a Partner (Temporary) (Class UK) visa; the Minister must have regard to all of the circumstances of the relationship, including, in particular: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day‑to‑day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; (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. (4)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3). (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.