Sharma v Minister for Immigration
[2008] FMCA 603
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 603 |
| MIGRATION – Migration Review Tribunal – partner visa – whether the Tribunal failed to take into account evidence – whether the Tribunal imposed a requirement that the applicant and sponsor lived together continuously – whether the Tribunal failed to assess the circumstances as at the date of decision – whether the Tribunal failed to take into account relevant matters – whether the Tribunal erred by failing to make findings – whether the Tribunal misconstrued the regulations – application dismissed. |
| Migration Regulations 1994 (Cth), r.1.15A. |
| Chey v Minister of Immigration and Citizenship [2007] FCA 871 Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 887 |
| First Applicant: | DEEPA SHARMA |
| Second Applicant: | PRAJWAL SHARMA |
| Third Applicant: | PRATIT SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1575 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 12 May 2008 |
| Date of Last Submission: | 12 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicants: | T V Hurley |
| Solicitors for the Applicants: | Ravi James & Associates |
| Counsel for the First Respondent: | K. L. Walker |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 19 November 2007, amended on 20 November 2007 and further amended on 25 March 2008 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1575 of 2007
| DEEPA SHARMA |
First Applicant
| PRAJWAL SHARMA |
Second Applicant
| PRATIT SHARMA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (“the applicant”) and the sponsor were married in Nepal in 23 June 2001. The applicant applied for a partner visa on
24 July 2001. The second and third applicants are the applicant’s children from an earlier relationship. Their claims were dependent on their mother’s.
The application for the temporary partner visa was refused by
the delegate but allowed by the Migration Review Tribunal.
The applicants entered Australia on 17 March 2004.
On 13 October 2005, the Department of Immigration and Citizenship (“the Department”) received information that the sponsor had been paid $20,000 to enter into a contrived marriage with the applicant.
It was further stated that the applicant was living with her brother Bishal in MacRobertson Way Hoppers Crossing and the sponsor was living with his mother at Mossfiel Drive Hoppers Crossing. Home visits conducted on 6 March 2006 suggested that the sponsor was living with his mother and the applicant was living with her brother.
The parties were interviewed by the Department on 23 March 2006. They subsequently submitted to the Department a lease agreement dated 31 March 2006 in respect of a property at Gill Street Hoppers Crossing and various utility bills for that address in joint names.
The delegate refused the visa application on 15 August 2006 on the basis that the applicant and the sponsor had never shared a household as a spousal couple and their marriage was contrived for the purposes of the applicant obtaining a visa.
On review, the Tribunal considered that:
a)the sponsor had made virtually no financial contribution to the relationship;
b)if the parties were living together in Gill Street, they were not living together in a genuine spousal relationship; and
c)the applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
Grounds of review
The grounds of review contained in the second amended application were as follows:
1A. The MRT based its decision on its conclusion that the sponsor “made virtually no financial contribution to the parties” relationship..” when there was no evidence of this and the MRT failed to take into account evidence that the sponsor had contributed to the purchase of land at Inverell Parkway Tarneit that the MRT did not appreciate. In doing this the MRT decided the review on a basis other than as propounded by the Applicants.
1. The MRT erred in law and thereby exceeded its jurisdiction by will (sic) interpreting the Migration (1994) Regulations as requiring the First Applicant and the sponsor live together ‘continuously” (sic) from the time the First Applicant arrived in Australia rather then whether the MRT was satisfied they did not as at the time of decision live separately and apart on a permanent basis within reg 1.15A(1A)((b)(iii)(B).
2. The MRT erred in law and thereby exceeded it jurisdiction by failing to construe the requirements of Migration (1994) Regulations Sch 1 cl 100.22 as requiring it to find what were the circumstances of the First Applicant and the sponsor as at the date of the MRT decision of October 2007.
3. The MRT failed to take into account a relevant matter and thereby exceeded its jurisdiction being the circumstances of the First Applicant and the sponsor as at the date of the MRT decision on 22 October 2007 within Migration (1994) Regulations Sch 1 cl 100.22.
4. The MRT failed to take into account a relevant matter and thereby exceeded its jurisdiction being the involvement of the sponsor with the two children of the First Applicant.
5. Alternatively the MRT erred in law and thereby exceeded its jurisdiction by failing to make a finding as to the relationship between the sponsor and the two children of the First Applicant while accepting that there was “some involvement” (MRT at [66]).
6. The MRT erred in failing to apply reg 1.15A (3)(b)(i) of the Migration (1994) Regulations and the circumstances of the two children of the First Applicant in considering the nature of the household.
Ground 1A
The first ground concerned paragraph 48 of the Tribunal’s decision, which was in the following terms:
The parties told the delegate that around August 2005 the visa applicant purchased land in Tahlee Road, Tarneit with a contribution of approximately $4000 - $5000 from the sponsor. They said that they could provide evidence of the sponsor’s contribution but did not do so. In its s359A letter the Tribunal also requested the parties to provide documentation in respect of this purchase, but nothing was provided and no explanation has been given as to whether this land is still held by the visa applicant or if it has since been sold and if so, how the funds were expended. The Tribunal has recently been informed that a withdrawal of $4500 from the sponsor’s Mastercard account on 17 March 2006 represented a “land deposit”. As the land in Tahlee Road, Tarneit was purchased in August 2005, the Tribunal does not accept that the withdrawal made on 17 March 2006 represented monies for a deposit. Nor does the Tribunal accept that it represented monies for a deposit on land in Inverell Parkway, Tarneit as this land was not purchased until September 2006.
The applicant argued that the Tribunal had misunderstood the evidence. The sponsor’s Mastercard statement showed a debit of $4,500 on
17 March 2006. The applicant accepted that the payment could not have related to the purchase by the applicant of the Tahlee Road property in August 2005. However, the applicant argued that the withdrawal could have related to the joint purchase by the applicant and the sponsor of the Inverell Parkway property, but the Tribunal failed to appreciate this.
More specifically, the applicant maintained that the Inverell Parkway purchase settled on 20 September 2006. It was said that it would be expected that the deposit, including the $4,500 paid by the sponsor, would be paid in March 2006, while the settlement itself occurred
90 days later in September 2006.
However, between March and September, there are not 90 days, there are about 180 days. Additionally, the evidence indicated that the contract was entered into in September 2006 and the settlement occurred well afterwards. A letter from Civic Conveyancing dated
30 October 2006to the applicant and the sponsor contained a statement of adjustments and said, “On settlement we will need the following cleared funds”. That makes it clear that the settlement was to occur after 30 October 2006. It also indicates that the “purchase” on
20 September 2006referred to the date of the contract. The deposit would have been payable on the signing of the contract.
In any event, paragraph 48 of the Tribunal’s decision makes it clear that the Tribunal did understand that there were two separate properties. There was nothing to tie the payment on the sponsor’s Mastercard of $4,500 to the Inverell Parkway purchase. In these circumstances, the Tribunal very reasonably did not accept that a withdrawal of funds about six months prior to the entry into the contract for the purchase of the Inverell Parkway property was a deposit for that purchase. The error alleged is not made out.
Ground 1
This ground concerned the Tribunal’s statement at paragraph 62 of its reasons that:
As already noted, the Tribunal is not satisfied that the parties have lived together continuously since the visa applicant’s arrival in Australia.
The applicant submitted that this statement indicated that the Tribunal misunderstood the Migration Regulations 1994 by requiring the parties to have lived together continuously since the applicant’s arrival in Australia. Alternatively, the applicant argued that the Tribunal asked the wrong question.
It is clear that reg.1.15A, which defines “spouse”, does not require the applicant and the sponsor to have lived together continuously. That regulation only requires that the parties do not live separately and apart on a permanent basis: reg.1.15A(1A)(b)(iii)(B). However, the regulations also make relevant the applicant’s and the sponsor’s living arrangements (reg.1.15A(3)(b)(ii)) and the length of time that they have lived together (reg.1.15A(3)(d)(ii)). Additionally, reg. 1.15A(5) provides that the fact that two people have lived at the same address for six months or longer is to be taken to be strong evidence that their relationship is genuine and continuing.
The Tribunal concluded its consideration of these issues at paragraph 63 of its reasons as follows:
While the visa applicant has demonstrated some level of commitment, at least in relation to the provision of financial support for the sponsor, that commitment has been seriously compromised by her willingness to live apart from the sponsor in circumstances that the Tribunal does not consider to be plausible or credible. While it may be that the parties have shared the same address from time to time, and possibly for periods of six months or longer, the Tribunal is not satisfied that they ever lived together in a spousal relationship.
In these circumstances, I see no basis for concluding that the Tribunal misunderstood the regulations by imposing a requirement that the applicant and sponsor had lived together continuously. Rather, it seems to me that the Tribunal was simply observing that the parties had not lived together continuously. The Tribunal ultimately answered the correct question, which was whether the applicant and the sponsor had a genuine spousal relationship.
Ground 2
The applicant argued that the Tribunal erred by failing to make findings about the circumstances of the applicant and the sponsor as at the date of decision. In particular, the applicant argued that the Tribunal failed to make findings about where the applicant and the sponsor were living as at the date of the decision.
The Tribunal was clearly aware that subclause 100.221(2) required the applicant to continue to be the spouse of the sponsor at the time of the decision. It said as much in the last sentence of paragraph 41 of its reasons.
The Tribunal said at paragraph 57 of its reasons that the fact that the applicant and the sponsor gave conflicting evidence about their working hours the previous weekend was:
strongly supportive of a conclusion that [at] the time of the Tribunal hearing they were not residing together at Gill Street as claimed.
The Tribunal went on to say that:
While it may be that the parties are presently sharing [the Inverell Parkway property] as claimed, the Tribunal is not satisfied that they are living together in a genuine spousal relationship.
The applicant argued that the Tribunal was obliged to make findings about where the applicant and the sponsor lived at the time of decision. The applicant relied on M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 887 at [17] to [26]. In that case, Ryan J noted that, in a refugee matter, a failure to make findings about particular past claims of persecution may amount to a jurisdictional error.
However, the first respondent referred to a spouse visa case, Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35], where Dowsett J said:
Although subreg 1.15A(3) requires that the Minister ‘have regard to all the circumstances of the relationship including’ the various matters specified, it does not require that the Tribunal make specific findings concerning any of those matters. To the extent that the material dealt with these matters, the Tribunal appears to have considered them and recorded substantial amounts of the relevant material in its reasons. There is no obligation upon a tribunal of fact to make findings as to whether it accepts or rejects every allegation made in the course of evidence. In some cases allegations may be so fundamental to the ultimate matter for determination that findings concerning them will be essential. In most cases, however, individual facts will be of less significance than the overall effect of the evidence. It may, in those circumstances, be unnecessary to make possibly hurtful, damaging or embarrassing findings of fact which are not necessary to the ultimate decision. That is not to say that the Tribunal should avoid making decisions for fear of offending parties or their witnesses. At the end of the day the questions for determination in the present case were whether the Tribunal was satisfied that:
· the applicant and Mr Davis, as at the date of application for a visa, had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
· the relationship was genuine and continuing.
The first respondent also relied on the decision of Kenny J in Chey v Minister of Immigration and Citizenship [2007] FCA 871 at [51] to [53] where her Honour said:
[51] The Tribunal made no finding about “any joint responsibility for care and support” of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35], reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case.
[52] Zhang is illustrative of a case in which the failure to make relevant findings did not lead to a holding that the decision-maker had failed to take into account the requisite matters: see Zhang at [19]–[20]. The decision shows that it is unnecessary for a decision-maker to “laboriously evaluate seriatim each of the considerations in reg 1.15A(3)”. In that case, it was enough that the Tribunal considered the relevant evidence under the topics referred to in the regulation (as the Tribunal did in the present case).
[53] Examination of the Tribunal’s reasons in the present case and, in particular, its consideration of the evidence relevant to reg 1.15A(3), also shows that the requisite matters were considered and are reflected in the Tribunal’s findings to the extent they are relevant. Under the heading, “[t]he nature of the household” (the subject of reg 1.15A(3)(b), the Tribunal made its finding that it was not satisfied that the appellant and Ms Tong were residing together in Melbourne (and if they were, then it was not satisfied that the relationship was genuine). This was relevant, amongst other things, to reg 1.15A(3)(b)(ii). In light of this finding, it was open to the Tribunal to determine that it was unnecessary to say anything specifically about either any joint responsibility for care and support of their child (the subject of reg 1.15A(3)(b)(i)) or shared responsibility for housework (the subject of reg 1.15A(3)(b)(iii)). Accordingly, I would not infer from the Tribunal’s failure to mention the issue of joint child care and support that the Tribunal did not consider it or any other matter it was bound to consider.
In my view, in the circumstances of this case, the Tribunal was under no obligation to make definite findings about where the applicant and sponsor lived at the time of decision. It was enough for the Tribunal to decide that, wherever they lived, they had never lived together in a genuine spousal relationship. That conclusion encompassed the circumstances of the applicant and the sponsor at the time of decision. It also answered the question that the Tribunal had to answer, namely, whether the applicant and the sponsor were in a genuine spousal relationship at the time of decision.
Ground 3
The applicant argued that the Tribunal failed to take into account the circumstances of the applicant and the sponsor at the time of the decision. I do not accept that submission. For reasons which it gave at considerable length, the Tribunal considered that, at the time of decision and at all previous times, the applicant and the respondent were not in a genuine spousal relationship. The Tribunal clearly concluded that, even if the parties were living together at the time of decision, they were not doing so in the context of a genuine spousal relationship.
Grounds 4, 5 and 6
These grounds were dealt with by the parties in a compendious way. The grounds alleged various failings in relation to the Tribunal’s consideration of the applicant’s children. Regulation 1.15A(3)(b)(i) requires the Tribunal to consider:
any joint responsibility for the care and support of children, if any[.]
The Tribunal noted at paragraph 59 of its reasons that it had before it photographs of the applicant and the respondent, some of which included the applicant’s children. The Tribunal noted at paragraph 60 of its reasons that the sponsor had, and possibly still was, receiving Family Tax Benefit in relation to the applicant’s two children.
The Tribunal accepted at paragraph 66 of its reasons that:
the sponsor has had some involvement with the children since their arrival in Australia, but the extent of his involvement must be viewed in the context of the Tribunal’s findings as to the nature and extent of the parties’ living arrangements.
In view of paragraph 53 of Chey, set out above, it is clear that, having found that the applicant and the sponsor had never been in a genuine spousal relationship, it was unnecessary for the Tribunal to make a finding about the extent of the sponsor’s responsibility, if any, for the applicant’s children. Nor can it be said that, in relation to the applicant’s children, the Tribunal failed to adequately take into account a relevant matter or failed to properly apply the regulations.
Conclusion
None of the applicant’s grounds has been made out. Accordingly, the application must be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 27 June 2008
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