NDEGWA v Minister for Immigration
[2005] FMCA 74
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NDEGWA v MINISTER FOR IMMIGRATION | [2005] FMCA 74 |
| MIGRATION – Migration Review Tribunal – spousal visa – spousal relationship – criteria and tests to determine married relationship – failure to consider criteria – lack of relevant findings. |
Migration Act 1958 s.474
Migration Regulations 1994 regs.1.15A, 1.15A(1A), 1.15A(3) & 1.15A(5)
Craig v South Australia (1995) 184 CLR 163
Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs & Anor;
Ex parte Applicants S134/2002 (2003) 211 CLR 441
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
| Applicant: | PAUL GITONGA NG’UNYURA NDEGWA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 444 of 2004 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 25 November 2004 |
| Judgment of: | O’Dwyer FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Gilbert |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Mr G Livermore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Migration Review Tribunal made on
2 December 2003 be set aside.The matter be remitted to the Migration Review Tribunal, differently constituted, for determination according to law.
The Respondent shall pay the Applicant’s costs pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 444 of 2004
| PAUL GITONGA NG’UNYURA NDEGWA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the Court on an application filed on
18 December 2003, later amended by an application filed on
24 May 2004, which seeks to review the decision of the Migration Review Tribunal (the Tribunal) made on 2 December 2003.
The Tribunal’s decision affirmed an earlier determination by the Respondent’s delegate to refuse to grant the Applicant a Partner (Temporary)(Class UK) visa, subclass 820 and a Partner (Residence) (Class BS) visa, subclass 801.
In the amended application the Applicant asserts:
“The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
Particulars
(i)The Tribunal failed to consider or make findings on each of the matters referred to in Reg. 1.15A(3)(d) of the Migration Regulations which matters were relevant considerations that it was bound to take into account.
(ii)The Tribunal failed to take into account the operation of Reg. 1.15A(5) of the Migration Regulations, which regulation was a relevant consideration that it was bound to take into account.
(iii)The Tribunal failed to consider the meaning of mutual commitment and/or misconstrued the meaning of the statutory criteria by asking itself the wrong question, namely the degree of commitment rather than mutuality.
Background
The Applicant is a male national of Kenya who entered Australia on
27 February 2001 as the holder of a Student visa valid until
15 March 2003. On 7 June 2002 he applied for the subject visas on the basis of his marriage to an Australian citizen (the nominator).
The parties were married on 25 May 2002.
The Tribunal in its decision referred to the applicable law, in particular reg.1.15A. Relevantly that regulation provides:
“Spouse
1.15A(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
…
(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.
…
(4)In forming an opinion whether 2 persons are in a married relationship or a de facto relationship, in relation to an application for:
…
(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 extend 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.
…
(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.”
The Tribunal, after considering the evidence put to it [CB 64–67]; found the relationship was not a genuine spousal relationship within the meaning of reg.1.15A. In its reasoning the Tribunal examined the evidence having regard to the matters the Minister must have regard to under reg.1.15A(3). Under subheadings relevant to reg.1.15A(3) considerations, the Tribunal set out its findings [CB 68-70].
They relevantly were, in short form:(i)The financial aspects of the relationship
The maintenance of separate bank accounts by the parties, the limited use of a joint account for household purposes, the lack of significant joint assets and no joint liabilities was not the financial profile to be expected from a couple committed to a genuine and committed spousal relationship.
(ii)The social aspects of the relationship
After considering statutory declarations by friends of the parties and hearing evidence from one of the declarants, noting that no satisfactory explanation was given for the suddenness of the marriage and that there was limited evidence the parties conjointly engaged in social activities, and no evidence from either of their families, there was a finding that there was limited evidence the parties represented themselves to others, or were accepted by others as being in a spousal relationship.
(iii)The nature of the persons’ commitment to each other
Whilst acknowledging the parties’ understanding of each other’s personality, tastes and backgrounds, and their engagement in some recreational and domestic activities, the Tribunal then noted that it was “deeply troubled by what it regards as very strong evidence that matters of great importance to the couples’ future – money and employment – were not known to the nominator.” [CB 69 para 36]
(iv)Other issues
Under this catchall subheading, the Tribunal addressed its concerns about credibility. Highlighting the evidence that the nominator was apparently unaware the Applicant had ceased his studies shortly after arriving in Australia, that he had indicated he did so because of ill health, but immediately increased his work hours, and that his stated reason for doing so was to travel back to Kenya to attend his ill mother was never acted on, the Tribunal expressed “doubts in relation to the credibility of the parties, and particularly that of the [Applicant].” [CB 69 para 37]
Contentions
The Applicant contends, in effect, that it was incumbent on the Tribunal to set out its findings as against each of the specified requirements, with reference to the applicable roman numeral, to be considered under reg.1.15A(3). It was not sufficient, it was contended, to set out the findings, as the Tribunal did, under the broad headings applicable under reg.1.15A(3). I do not agree with the Applicant on this point and cannot find the Tribunal erred because of the form it set out its findings. In my view, in this instance, it does not reflect per se a failure on the part of the Tribunal to give consideration to each of the matters it must under reg.1.15A(3). Most of those considerations, save for those required by reg.1.15A(3)(d), are referred to, in my view, in the broad nature of the findings, with some considerations overlapping and others clearly not relevant having regard to undisputed facts.
However, from my reading of the decision, there appears to be no reference, in its reasoning giving rise to its conclusion, to the considerations required under reg.1.15A(3)(d), in particular the length of time the parties lived together. It appears to have been overlooked by the Tribunal when addressing the logic of its conclusion about the genuineness of the marriage. It appears undisputed that the Applicant and the nominator had lived together for some 18 months prior to the hearing. Regulations 1.15A(3)(d)(i) and (ii) mandate that the Tribunal was required to take into account the duration of the relationship as a measure of the commitment of the couple to each other.
In this context reg.1.15A(5) is relevant. The Tribunal did not address this aspect at all. Although it is true the Tribunal made reference to the duration of the cohabitation in its broad summary of the facts, it did not make a finding relevant to that in the context of its mandated obligation to consider this point in its reasoning. In my view, the significance of this omission casts doubt on the soundness of the Tribunal’s conclusion about whether the parties were in a married relationship.
The Tribunal simply failed to take into account this important evidentiary direction and make appropriate findings illustrative of sound probative logic (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at para 69 and Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24).
This amounts to an error on the part of the Tribunal, an error which can be properly classified as a jurisdictional error (see Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116 and Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351).
The Applicant also contended that the Tribunal had asked itself the wrong question when it considered the “degree of commitment” as opposed to the mutuality of that commitment to the exclusion of all others. It is apparent from the language used by the Tribunal that it was concerned with the degree of commitment whereas
reg.1.15A(1A)(b)(i) requires a consideration of mutuality.
In addressing itself to the question of degree the Tribunal has erred in that it did ask itself the wrong question and failed to consider, as required, the question of mutual commitment. In so doing, the Tribunal has fallen into jurisdictional error.
Conclusion
The failure of the Tribunal to take into account a relevant consideration, namely the length of cohabitation as required by
regs.1.15A(3)(d)(i) and (ii), and reg.1.15A(5) was a breach of an inviolable statutory condition which amounts to a jurisdictional error. Accordingly, the Tribunal’s decision is not afforded protection as a privative clause decision under s.474 of the Migration Act 1958
(see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration & Multicultural & Indigenous Affairs & Anor; Ex parte Applicants S134/2002 (2003) 211 CLR 441).
Similarly, the Tribunal fell into jurisdictional error when it asked itself the wrong question as to the degree of commitment of the Applicant and the nominator. In so doing the Tribunal’s decision, on this basis, is also not afforded the protection of s.474 (see Craig v South Australia (1995) 184 CLR 163).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 11 February 2005
5
8
0