White v Minister for Immigration

[2014] FCCA 2486

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2486

Catchwords:
MIGRATION – Judicial review – Review of Migration Review Tribunal decision – whether the Tribunal’s decision was not arrived at in accordance with the Migration Act 1958 (Cth) – whether the Tribunal misconstrued the definition of a spouse in s.5F(2)(d) of the Migration Act 1958 (Cth) – whether the Tribunal afforded disproportionate weight to residence and frequency of face-to-face contact – no error demonstrated by Tribunal – application dismissed – costs awarded.

Legislation:

Migration Act 1958 (Cth), ss.5F(2)(d), 65

Migration Regulations 1994 (Cth), r.1.15A

Main v Main (1949) 78 CLR 636
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
Tulk v Tulk (1907) 13 ALR 45

Applicant: EDWARD CHRISTOPHER WHITE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1040 of 2013

Judgment of: Judge Burnett

Hearing date: 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Brisbane

Delivered on: 29 October 2014

REPRESENTATION

Counsel for the Applicant: Mr A. Scott

Solicitors for the Applicant: Bottoms English Lawyers

Counsel for the Respondents: Mr B. McGlade

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs of and incidental to the application to be fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1040 of 2013

EDWARD CHRISTOPHER WHITE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By a decision made by delegate of the Minister the applicant’s application for a Partner (Residence) (Class BS) Visa under s.65 Migration Act 1958 (Cth) (“the Act”) was refused. He subsequently sought review of that decision by the Migration Review Tribunal (the Tribunal). On 24 October 2013 the Tribunal determined to affirm the delegate’s decision not to grant the visa. He now seeks judicial review of that determination.

Background

1. The applicant is the spouse of the sponsoring spouse. The sponsoring spouse is an Australian citizen and satisfies the regulatory requirements to be a sponsoring spouse for the purpose of the applicant’s application. The applicant himself must be a spouse of the sponsoring spouse to be eligible for the visa. Spouse is defined in r.1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”) as the spouse of another where the two persons are either in a married or de facto relationship and the relationship meets certain requirements. Where the persons are married, as is the fact in this case, there must be evidence of a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing and the couple must live together, or not live separately and apart on a permanent basis.

2. In this case the evidence before the Tribunal was that shortly after the parties’ marriage the applicant departed from the matrimonial residence in Cairns to Victoria to undertake employment, claiming he had difficulty finding work in Cairns because he did not have a driver’s licence. The sponsoring spouse remained in the Cairns region. From May 2009 until January 2011, the applicant was employed in Melbourne during which time he visited the sponsor in Cairns on six or seven occasions. In April 2011, he obtained work at a recycling plant in Cairns and rented an apartment in Cairns in which to live. In the meantime, the sponsor lived in Port Douglas where she was employed and where her two adult children and grandchildren reside.

3. At the time of the Tribunal hearing, the parties continued to reside at separate addresses with the sponsor living in a rented two bedroom apartment in Mossman and the applicant residing with friends in Cairns. They had not resumed residence together on a permanent basis.  Additionally the evidence before the Tribunal was that the applicant and sponsoring spouse did not pool their money or other financial resources. The Tribunal also considered evidence placed both before the delegate and it concerning the nature of their household, financial aspects of the relationship, social aspects of the relationship and matters relevant to the nature of the parties’ commitment to each other. The applicant and the sponsoring spouse claim that the only reason they do not live together is due to their respective work commitments.

4. At first instance, the delegate refused the applicant’s application. In refusing the application, the delegate noted she was not satisfied that the applicant and his sponsor were in a “genuine and ongoing spousal relationship”.

5. Upon review before the Tribunal, the Tribunal considered both the material before the delegate together with evidence of the applicant and the sponsoring spouse. Additionally, the applicant provided further evidence and made submissions particularly concerning the proper interpretation of r.1.15A of the Regulations.

6. In its conclusion, the Tribunal determined that although it accepted the applicant and his spouse had a longstanding relationship, it was not satisfied that the relationship between those parties met the definition of “spouse” in r.1.15A of the Regulations. In particular, it concluded they did not “live together, or do not live separate and apart on a permanent basis in accordance with r 1.15A(1)(a)(b)(iii)”or that they have a commitment to a shared life as husband and wife in accordance with the [Regulation].[1]

   [1] Decision at [39].

7. In his application for judicial review, the applicant advanced two grounds:

   a)The Tribunal misconstrued the element within the definition of spouse directed to the applicant and spouse living “separately and apart” as required in the definition provided in s.5F(2)(d) of the Act; and

   b)The Tribunal misconstrued the element within the definition of spouse addressing the relationship of the applicant and the sponsor having a “mutual commitment to a shared life as husband and wife to the exclusion of all others” by affording a disproportionate weight to the circumstances of residence and frequency of face-to-face contact.

8. There is no dispute that but for the applicant satisfying the definition of spouse provided in the Regulations the applicant did satisfy the requirements of the Regulations in all other respects. Accordingly the focus of the application is properly upon regulation 1.15A which relevantly provides:

   “1.15A Spouse

   (1) For the purposes of these Regulations, a person is the spouse of another if the two persons are:

   (a)     in a married relationship, as described in sub regulation (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.

   …”

9. In this instance, it is accepted that the applicant and sponsor satisfy r.1.15(1A)(a) of the Regulations in that they were married to each other under a marriage that is recognised as valid. The application foundered however upon two matters of which the Minister was to be satisfied namely:

   a)The applicant and his sponsor had a “mutual commitment to a shared life as husband and wife to the exclusion of all others”; sub regulation (1A)(b)(i); and

   b)They “do not live separately and apart on a permanent basis: sub regulation (1A)(b)(iii)(B).[2]

   [2] It was not in contest that they otherwise did not live together.

10. The applicant’s principal contention, directed to both alleged jurisdictional errors, was that the Tribunal in finding that the applicant and sponsor had “not resided together since at least June 2009” placed significant weight on the fact that the applicant and sponsor “had not sought to live together or spend more time in each other’s company”. On making these findings, the Tribunal was not satisfied that the frequency of face-to-face contact between the applicant and his sponsor was “indicative of a mutual commitment to a shared life as husband and wife”.[3] The applicant’s submissions addressed the practical difficulties of the applicant and sponsor would have faced given their respective places of employment and the nature of the shifts each undertook.

    [3] Applicant’s submissions at para 12.

11. It was against that background the applicant advanced the two alleged errors.

Ground 1 – Separately and Apart

1. In written submissions for the applicant it was contended the Tribunal engaged in jurisdictional error in its construction of the phrase “live separately and apart on a permanent basis”. By reference to authority: Main v Main (1949) 78 CLR 636; Tulk v Tulk (1907) 13 ALR 45, it was contended that the phrase “live separate and apart” is a disjunctive phrase referring to two separate and distinct circumstances namely:

   a)The circumstances of a married couple living apart in which the  couple reside at different places; and

   b)The circumstances of a married couple living separately in which the couple do not have a matrimonial relationship subsisting between them.

2. The applicant contended that the Tribunal failed to discretely consider each of the integers “separately” and “apart”. It was submitted that if discreet consideration was given to each of those integers, then upon the evidence, it ought to have been concluded that the requirement was satisfied. That is, while there was no issue of the parties living apart, the evidence did not demonstrate they lived “separately” in the sense discussed in the authorities. That is, that there was no absence of real mutual recognition between the applicant and sponsor with there being a definite intention  to resume the close association of a common life as soon as the occasion or exigency (being employment related) passed and which led to an interaction between them which was regarded by both as temporary.

3. In written submissions for the applicant, it was contended that the phrase “live separately and apart” was construed as a composite phrase describing a single circumstance – namely a married couple residing a different places. That is, that if a couple did not reside together they would be living “separately and apart”, even if there was a marital relationship subsisting between them. It was submitted that this approach was evident from the Tribunal’s reasons. In particular the following points were advanced:

   a)The Tribunal’s reasons contained no consideration of the distinction between the words “apart” and “separate”;

   b)The Tribunal’s findings did not treat the question of whether the parties lived “separately” and “apart” as discrete issues;

   c)Instead the Tribunal considered the phrase as referring to a single issue namely whether the parties live “separately and apart on a permanent basis”;

   d)That in considering that issue the Tribunal’s reasons focussed on the separate residence of the parties as the basis for its conclusion that they lived “separately and apart”;

   e)At [13] of its decision the Tribunal noted that the applicant “confirmed…that at no time since [the grant of his temporary visa on 16 June 2009]… had he and the sponsor resided together on a permanent basis”;

   f)Further at [40] of its reasons, the Tribunal noted that the parties had not “resided together since at least June 2009” and proceeded to find:

   “While the parties have expressed a mutual desire to live together in the future, the Tribunal is not satisfied they are living together at the time of this decision and is not satisfied that they have plans to do so.”

   g)At [41] and [42], the Tribunal recharacterised the issue from one of considering whether the parties “lived separately and apart on a permanent basis” to a consideration of whether there was a “mutual commitment to a shared life”;

   h)The issue is not again mentioned until [45] where the Tribunal noted the “length of time for which the parties have lived separately and apart” in circumstances where:

   i)The only finding of the Tribunal as to any “length of time” relevant to whether they lived “separately” or “apart”, was its finding at paragraph 13 that the parties had not “resided together on a permanent basis” and at paragraph 40 that they had not “resided together since at least June 2009”;

   ii)The Tribunal did not make any findings as to the “length of time” that the parties had lived “separately” as opposed to merely “apart”. It was submitted that by misconstruing the phrase “lived separately and apart” the Tribunal fell into jurisdictional error.

4. Significantly, the applicant’s counsel observed in oral submissions that relief ought be granted if there is a possibility that the mutual commitment criteria may have been favourably decided for the applicant if the Tribunal had not adopted the incorrect construction in relation to the phrase “lived separately and apart”. It was submitted that the effect of the Tribunal’s misconstruction was that it dealt with living separately and apart as a single concept considering whether the applicant and sponsor lived in the same geographical place. That is contrary to what was submitted to be the correct construction, which was that geographic distance is directed to the concept of “apart” and the concept of “separately” refers essentially to a breakdown in the marital relationship.

5. The applicant submitted this error of approach was evidenced not only in its decision but also in the manner in which the Tribunal addressed its inquiries at the Tribunal hearing.

6. The applicant contends that the two terms “separately” and “apart” have been conflated and accordingly the Tribunal has misdirected itself. At [9] of its decision, the Tribunal examined the term “spouse” and observed:

   “Spouse is defined in r.1.15A of the Regulations and provides that a person is a spouse of another where the two persons are either in a married…relationship and the relationship meets certain other requirements.

   …

   Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, not live separately and apart on a permanent basis: r.15A(1A). In forming an opinion as to these matters, regard must be had to all of the circumstances to the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other … .”

7. At [20], the Tribunal concluded the applicant and spouse had not been living together and did not pool financial resources. That determination by the Tribunal was plainly in recognition of the first criterion in addressing the term “separately”, that is, the conjugal relationship no longer existed between the applicant and his sponsor. Later in its decision under the headings “Nature of the parties’ commitment to each other” , “Social aspects of the relationship”, “Nature of household”, and “Financial aspects of the relationship” the Tribunal addressed additional factors relevant to living together. In its conclusion it stated:

   “[39] … The Tribunal is not satisfied that the parties have lived together, or do not live separately and apart on a permanent basis in accordance with rule 1.1.15A(1A)(b)(iii). The Tribunal is also not satisfied that the parties have a mutual commitment to a shared life as husband and wife in accordance with rule 1.1.15(A)(1A)(b)(i).

   [40]  … While the parties have expressed a mutual desire to live together in the future, the Tribunal is not satisfied that they are living together at the time of this decision and is not so satisfied that they have plans to do so.”

8. While that passage could be construed to suggest the Tribunal has in fact conflated the terms I think from other passages in the decision that it is apparent that it did not.

9. There was no factual contest that the parties lived physically apart as the Tribunal observed at [13]. Once that was stated, the remaining contest concerned whether the applicant and his sponsor lived separately on a permanent basis insofar as it concerned,

   “real or mutual recognition by [the applicant] and [the sponsor] that marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interaction regarded by both as temporary”.[4]

   From [14] of its decision, the issue of ‘separately’ was the only issue considered and addressed by the Tribunal.

   [4] Main v Main (1949) 78 CLR 636 at 641 - 642

10. Although the terms are distinct, it is plain by reference to the observations in the High Court in both Main v Main (supra) and Tulk v Tulk (supra) that some degree of overlap may exist between the terms such that physical separation is not only necessary itself but also is a constituent characteristic of ‘separately’, although not in all instances necessarily evidence of it. Indeed, it seems plain that the more geographically proximate the locality of the parties, the more relevant the fact of being ‘apart’ may be to the question of ‘separately’ as the current case suggests. It is plain that when the parties are geographically proximate the fact of being ‘apart’ may inform the term of art ‘separate’. That appears to be the Tribunal’s approach in this instance. It is unfortunate that an infelicitous use of language by the Tribunal in this instance has occasioned some confusion. However I am satisfied the Tribunal has not so misdirected itself in the analysis and conclusion of the term ‘spouse’ in the Regulations. Respectfully, I consider the applicant’s submission concerning the construction of the Tribunal’s decision has been a submission construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

11. I am satisfied that even had the Tribunal correctly expressed itself, the outcome would have been the same. It understood there were two factors to be considered. Only one of the factors was in issue, namely the question of living ‘separately’ as the word is understood. It determined that matter against the applicant as it was able to do on the evidence. I am not satisfied any jurisdictional error has been established on this ground.

Ground 2

1. The second jurisdictional error complained of by the applicant is that the Tribunal failed to consider, according to law, whether the applicant and his sponsor “have a mutual commitment to a shared life as husband and wife to the exclusion of all others” by giving disproportionate weight to:

   a)The fact that the applicant and sponsor did not reside at the same address; and

   b)The frequency of face to face contact between the applicant and his sponsor.

2. The applicant’s particulars concerning those allegations contend that the weight given by the Tribunal to those factors was disproportionate because the Tribunal did not have regard to whether the economic circumstances and work commitments of the applicant and his sponsor meant:

   a)The degree to which their lives were shared would not be materially affected by their residing at the same address; and

   b)Meant they could not materially increase their frequency of face to face contact.

1. The applicant contended that the mere fact that two persons do not reside together will not necessarily mean that those persons lack a mutual commitment to a shared life as husband and wife. It was noted that for instance it was possible for two persons to live under the same roof and lack such commitment and likewise for two persons to live apart and yet maintain a mutual commitment to a shared life as husband and wife. I do not think those matters were in contention.

2. However the applicant’s argument was directed to the “unusual” circumstances of him and his sponsor. It was submitted those circumstances brought into sharp focus that the particular statutory criterion in issue uses the word “commitment” in connection with the phrase “shared life”. He contended here that the circumstances are such that even if they did reside together, the applicant and his sponsor would have little to no face to face contact in addition to what they otherwise have by not residing together and accordingly gives rise to the question of whether the fact that they do not reside together can rationally support a conclusion that they lack a “commitment” to a “shared life”. It flows from that, it was contended, that the separate residences of the applicant and his sponsor should not reflect negatively on the “commitment” to a shared life if the facts demonstrate that residing together would not materially improve the extent to which they “share” their life together. The applicant contended the Tribunal’s error was that it gave “significant weight” to the fact of their separate residences without giving any consideration at all to whether residing together would materially improve the extent to which they “share” their life together.

3. Likewise, it was contended, the Tribunal’s consideration of the word “commitment” was also significant to the weight placed by it on the level of face to face contact between the applicant and his sponsor. It was submitted that it was plain that each of the work responsibilities of both the applicant and his sponsor meant that it was unlikely that they could, practically, have any significant increase in the level of their face to face contact. In those circumstances, it was contended that given that matter was beyond their control there was a real question whether they demonstrated a lack of “commitment” to a “shared life together” merely because of their level of face to face contact.

4. The applicant contended these issues were of central relevance to the question of whether the Tribunal could rationally give “significant weight” to the parties’ separate residence and frequency of face to face contact engaging their “commitment” to a “shared life together”. It was contended for the applicant that those issues were not considered but that instead, the Tribunal focussed its inquiry on whether it was practicable for the parties to reside together – a matter which, in the circumstances of this case, it contended did not address the real question of whether it was possible for the parties to increase their level of “shared life together” through joint residence and increased face to face contact.

5. In response to this submission, the respondents contended that the applicant’s argument was premised upon a presumption that the Tribunal had an obligation to consider a contention which was never alive, in a direct sense, before it. That is, that there was contention that the applicant and the sponsoring spouse would materially improve the extent to which they could share their lives together in the context of their circumstances. That is, during their usual work week, because of their work schedules, they would not be able to spend any or much time together in any event.

6. Such a claim did not emerge from the argument and materials put before the Tribunal. As the respondents contended, the claim articulated before the Tribunal was that the applicant and the sponsor could not live together because of work commitments and because the applicant  was unable to find permanent employment in the area where the sponsoring spouse lived, namely in Port Douglas. It was never suggested to the Tribunal that even if the applicant and sponsoring spouse lived together, they would not materially improve the extent to which they shared their life together because there was no or minimal overlapping time where they could both be awake in their common home during the working week.  At its highest, the case articulated before the Tribunal was that the commitments of each made it inconvenient for the couple to live together in the sense of time and sacrifice of travel and expensive. The strength of the respondents’ contentions concerning this matter are supported in my view by the applicant’s own submissions and in particular the table incorporated at paragraph 15 of its outline. The table serves to highlight the point made by the respondents namely that these matters were not agitated before the Tribunal. For instance the table introduces assumptions in relation to sleep and travel time, matters which were not addressed at the Tribunal hearing.

7. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263, Black CJ, French and Selway JJ observed at [68]:

   “Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.”

8. In my view, neither of these claims now postulated in the applicant’s contentions were advanced in a like manner before the Tribunal. Not only were they not properly founded in evidence necessary to support the express contentions but the express contentions themselves were not clearly articulated. It follows that I am not satisfied the Tribunal failed to consider a claim expressly advanced as has been contended for by the applicant.

9. The applicant contends that the Tribunal’s failure to consider these matters demonstrates unreasonableness on its part. I do not accept that. Although it is plain since Minister for Immigration and Citizenship v Li [2013] HCA 18 that the breadth of the term “unreasonableness” such that “an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified”[5] this in my view is not such a case.

   [5] At [69]

10. The decision of the Tribunal was one open to it on the facts. It is, in essence, a merits decision and what the applicant really seeks is impermissible merits review.

Summary

1. The applicant seeks judicial review of the Tribunal’s decision refusing affirming the Minister’s decision to refuse him a “spouse” visa. I do not accept the Tribunal materially misconstrued the definition of “spouse” provided for in the Regulations. The Tribunal correctly addressed the applicant’s arguments and contentions. The argument contended for here was not an obvious argument and was not advanced before the Tribunal. I am satisfied that what the applicant seeks is impermissible merits review.

Orders

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  29 October 2014