Simpson, G.J. v The Minister for Immigration & Ethnic Affairs

[1994] FCA 591

GEORGE JOSEPH SIMPSON AND VIJAY LAKSHMI V THE MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS
No.G717 of 1993
FED No. 591/94
Number of pages - 5
Migration
(1994) 35 ALD 389 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
HEEREY J

CATCHWORDS

Migration - appeal from Immigration Review Tribunal - spouse permanent entry visa - whether a "genuine, continuing relationship" - events after visa application - alleged failure to give reasons - what are findings of fact - conflict between spouses' accounts of sex life

Migration (1989) Regulations Reg.44
Migration Act 1958, ss. 135, 138

Australian Postal Corp v Lucas (1991) 33 FCR 101
Hospital Benefit Fund of Western Australia Inc v Minister for Health Housing Community Services (1992) 39 FCR 225
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

HEARING

SYDNEY, 29 July 1994
#DATE 29:8:1994, Melbourne

Counsel for the Applicant: Mr M A Robinson

Solicitor for the Applicant: De Martin and Abbott

Counsel for the Respondent: Miss R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The application be dismissed with costs, including reserved costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

HEEREY J The applicants Mr George Simpson and Ms Vijay Lakshmi married on 20 September 1991 in Fiji. On 27 September 1991 Ms Lakshmi applied for spouse permanent entry visa (class 100).

1. That application was refused on the ground there was not, as required by reg.44 of the Migration (1989) Regulations, a "genuine, continuing relationship between the two spouses". After Departmental review the applicants appealed to the Immigration Review Tribunal (the Tribunal) who on 19 August 1993 affirmed the decision. An appeal is brought under s.138 of the Migration Act 1958 from the Tribunal's decision.

Factual Background
3. Mr Simpson is an Australian citizen. He was aged 53 at the time of the marriage. He has been an invalid pensioner since the age of 16.

1. In its reasons for decision the Tribunal summarised the evidence as to the history of the marriage as follows:
   

"EVIDENCE

...

The Applicant in oral evidence said that he became aware of the Principal in 1990, through his cousin who was married to a Fijian woman. They exchanged correspondence and talked by telephone, and later the Principal invited him to Fiji. He went to Fiji on 18 September 1991, met her for the first time, and they were married on 20 September 1991. He stayed in Fiji for 4 months after the marriage, and in oral evidence said that he and the Principal slept in separate beds in the Principal's house. They shared a bedroom with the sister's daughter, and had one sexual experience during the 4 month stay. This was contrary to documentary evidence which records that, when interviewed by the primary decision-maker, he had said they slept in separate rooms, and had decided not to consummate the marriage until she arrived in Australia.

The Applicant's mother in oral evidence said the Applicant had been an invalid pensioner since he was 16 or 17 years of age, but that his health had deteriorated since a car accident which occurred after his visit to Fiji.

The Principal in oral evidence confirmed that she had made contact with the Applicant through a former work friend who was married to the Applicant's cousin. She confirmed that she first met the Applicant on 18 September 1991, after they had exchanged correspondence since sometime in 1990. She also confirmed that they were married on 20 September 1991, and that the Applicant remained in Fiji for four months. Her evidence was that they slept in the same bed, and had frequent sexual experiences.

She denied that her sister's daughter slept in the same room, and was unaware that the Applicant had been involved in a serious car accident."

Tribunal's Decision
5. The Tribunal then expressed the reasons for its decision:

"FINDINGS

The Tribunal finds the evidence of the applicant and principal to be contradictory in respect to their relationship after the wedding, and finds it strange that the principal was unaware that the applicant had been in a serious car accident. In the light of these findings, the Tribunal cannot find either the applicant or the principal to be a credible witness. It therefore cannot be satisfied that `the relationship is a genuine continuing relationship between the two spouses' and determines accordingly."

1. The applicants contend that the decision of the Tribunal disclosed legal error on a number of grounds.

Proper Date for Consideration of Facts
7. The applicants argued that the evidence concerning the motor car accident (which occurred after Mr Simpson returned to Australia) should not have been taken into account. Reference was made to a number of cases dealing with the appropriate use in a judicial review context of events which have occurred after the date of the decision in question and in particular the decision of the Full Court in Hospital Benefit Fund of Western Australia Inc v Minister for Health Housing Community Services (1992) 39 FCR 225.

1. In the present case the evidence in question was a proper matter for the Tribunal to consider. Events which occurred after 27 September 1991 may bear on the question as to whether there was a genuine, continuing relationship at that date. One such event is the lack of communication between the spouses about a major misfortune. The weight to be put on such a circumstance is a matter for the decision-maker. The fact that Mr Simpson told his wife that he was in hospital but not the exact nature and cause of his disablement may tend to show there was no existing genuine, continuing relationship between them and accordingly there had not been such a relationship on 27 September 1991 - there being no intervening event to suggest the disruption of a genuine, continuing relationship at the earlier date. On the other hand, this non-disclosure may be explicable on human grounds of reticence or embarrassment on Mr Simpson's part. But those considerations are questions of fact for the decision-maker. It cannot be said as a matter of law that the circumstances of the accident and the applicants' communication about it were irrelevant to the particular decision-making function.

Relevant and Irrelevant Considerations
9. It was argued that the Tribunal failed to have regard to a number of relevant considerations namely

(a) The living eating and sleeping arrangements between the parties up to 27 September 1991;

(b) The true nature of and importance or relevance of the sexual relationship between the parties;

(c) The social relationship between the parties;

(d) The financial arrangements or proposed arrangements between the spouses;

(e) Whether the husband and wife held themselves out as being man and wife;

(f) What is the relationship between the husband and wife and does it contain a degree of permanence - see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.

1. It was also said that the Tribunal took into account irrelevant considerations namely the evidence concerning the motor vehicle accident and the alleged inconsistencies relating to sex and sleeping arrangements.

2. I have already dealt with the question of the accident. The issue of the sexual relationship of the parties I shall postpone for the moment. It seems to me that it is impossible to say that the other matters were not taken into account. The evidence dealt with the living, eating and sleeping arrangements during the time the parties lived together in Fiji and likewise their social arrangements and whether they held themselves out as being man and wife. They did. They went through a valid ceremony of marriage and lived with the wife's sister. Their financial arrangements were considered. The evidence was that Ms Lakshmi was a seamstress and Mr Simpson was an invalid pensioner. Reference to Staunton-Smith and other cases is not really helpful because it was concerned with statutory criteria directed towards different issues.

Failure to Give Reasons
12. Section 135 of the Migration Act provides:

"1. Where the Tribunal makes a decision on a review the Tribunal shall prepare a written statement that

(a) Sets out the decision of the Tribunal on review;

(b) Sets out the reasons for the decision;

(c) Sets out the findings on any material questions of fact, and

(d) Refers to the evidence or any other material on which the findings of fact were based."

1. The law relating to inadequacy of reasons as a ground of appeal is discussed in a valuable article by Hayley Katzen in (1993) 1 Australian Journal of Administrative Law 33.

2. There was some force in the applicant's contention on this ground. While the Court should be slow to set aside decisions "for mere failures in accurate and comprehensive expression" (Australian Postal Corporation v Lucas (1991) 33 FCR 101 per Burchett J at 109) it must be said that the present reasons were close to the border of legal inadequacy.

3. One problem arises from the ambiguity in the use of the word "finding" by the Tribunal. The verb "to find" can be used (i) in a popular sense - "to discover on inspection or consideration" (Shorter Oxford), "to discover by experience or to perceive" (Macquarie), as in "I find A's conduct extraordinary", or (ii) in a legal sense - "to determine and declare to be" (Shorter Oxford), "to determine after judicial enquiry" (Macquarie), as in "I find A assaulted B". The word "findings" in s.135(1)(a) is used in the legal sense. In the section of its reasons headed "Findings" the Tribunal says that it "finds the evidence of (the applicants) ... to be contradictory and finds it strange that (Ms Lakshmi) was unaware (of) the car accident". In both instances the verb "to find" is used in the popular sense, that is to say as a comment. The Tribunal proceeds to say that in the light of those "findings" it "cannot find either (Mr Simpson or Ms Lakshmi) to be a credible witness". Now the Tribunal is using the word in its legal sense.

4. However when one looks at the critical evidence, which is accurately summarised in the Tribunal's reasons, I think the reasoning process is disclosed. Indeed, what the Tribunal says under the heading "Evidence" amounts to its findings of fact.

5. It was not determinative for an ultimate finding of "genuine, continuing relationship" that the parties either had sex on one occasion or on frequent occasions in the four weeks they were together. Marriage relationships can be genuine and continuing whether the spouses have frequent sex, little sex, or no sex at all. It would be wrong, and an error of law, to presuppose some standard of frequency of sexual contact and use that as a criterion to determine whether or not a marriage relationship was genuine and continuing.

6. However in the present case the Tribunal took the view that the stark conflict between the two spouses' account of their sex life was itself a factor pointing to the non-genuineness of their relationship.

7. This was a conclusion plainly open on the evidence. A reading of the reasons indicates that is why the Tribunal reached the decision it did. No error of law was made in the way the Tribunal expressed its reasons for a decision.

Natural Justice
20. There is no substance in this complaint. The difference in the two versions as to the account of their sexual relations was put to each applicant.

Unreasonableness
21. It was contended that the decision was an exercise of power so unreasonable that no reasonable person could have so exercised the power. It was said that the decision was unreasonable because the meaning and nature of the genuine marriage was not considered by the Tribunal, the Tribunal failed to consider the significance of the alleged inconsistencies, the Tribunal failed to take any factor favourable to the applicants into account, and the Tribunal failed to make the appropriate findings in the circumstances.

1. To the extent that these complaints have not already been covered, I find they are not made out. It was within the province of the Tribunal, which had their responsibility of deciding questions of fact, to find that there was no genuine, continuing relationship.

Orders
23. The application will be dismissed with costs, including reserved costs.