Yit v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

IMMIGRATION – Migration Review Tribunal – whether decision affected by actual bias – whether actual bias to be inferred from reasoning of Tribunal.

Migration Act 1958 (Cth), s 476.

Migration Regulations 1994 (Cth), reg 1.15A; Sch 2, Part 100.

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, applied.
Abebe v Commonwealth (1999) 197 CLR 510, cited.
Re Gooliah and Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224, cited.
Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556, applied.
Li v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 125, cited.
Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited.

Crock, “Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions” (2000) 24 Melb Uni LR 190

SOVAN YIT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 443 OF 2000

SACKVILLE J
27 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 443 OF 2000

BETWEEN:

SOVAN YIT
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

27 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed. 

2.   The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 443 OF 2000

BETWEEN:

SOVAN YIT
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

27 JULY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

  1. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC), Wilcox J pointed out that the limitations imposed by s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on the grounds of review available in the Federal Court encourage disappointed migration applicants to search amongst the few available statutory grounds of review for an arguable basis on which to challenge the administrative decision refusing their application.  His Honour remarked presciently that (at 122):

    “[i]t will not be surprising if, in their disappointment at the Tribunal’s decision, many claim actual bias.  The result will be to substitute for an inquiry into the character of the decision an inquiry into the character of the decision-maker”.

    The present case is an illustration of the tendency foreseen by Wilcox J.

  2. The applicant in this Court (the “sponsor”) seeks review of a decision made by the Migration Review Tribunal (the “Tribunal”) on 19 April 2000.  The Tribunal affirmed a decision of a delegate of the respondent (“the Minister”) refusing the applicant’s wife, Somarlime Nut (“the visa applicant”), a Spouse (Migrant) (Class BC) Subclass 100 (Spouse) visa.  The visa applicant is a citizen and resident of Cambodia.  The sponsor is a citizen and resident of Australia.

  3. When the proceedings were commenced in this…

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Details
Case
[2000] FCA 885
Decision Date

CaseChat Overview and Summary

In the case of Yit v Minister for Immigration & Multicultural Affairs, the visa applicant, a Cambodian widow, applied for a Subclass 100 (Spouse) visa on 29 October 1996, having married the sponsor, an Australian citizen of Cambodian origin, the day before. The sponsor had been married twice before, with two children from his first marriage and one child from his second marriage. The sponsor sponsored two former partners for Australian residency. The sole issue before the court was whether the decision of the Tribunal was affected by actual bias.

The court was required to determine whether the Tribunal's decision that the marriage was not genuine and therefore did not meet the criteria for a Subclass 100 visa was affected by actual bias. The criteria for the visa were set out in Part 100 of Schedule 2 to the Migration Regulations 1994, and required that the couple have a mutual commitment to a shared life as husband and wife and that their relationship be genuine and continuing. The Tribunal found that the sponsor had "no desire to live with the [visa applicant] if she cannot come to Australia and his commitment to her is a shallow one based on his wanting [her] to come to Australia to look after him." It concluded that the sponsor and the visa applicant did not have a mutual commitment to a shared life as husband and wife or that their relationship was genuine and continuing.

The court found that the Tribunal's decision was not affected by actual bias. It was satisfied that the Tribunal had considered all relevant evidence and had not been influenced by any personal or prejudicial feelings towards the parties. The court noted that the Tribunal had given careful consideration to the evidence presented and had provided detailed reasons for its decision. It concluded that the Tribunal's decision was based on a reasonable assessment of the evidence and that there was no actual bias on the part of the Tribunal.

The court dismissed the visa applicant's appeal and ordered that the visa applicant pay the respondent's costs. The decision of the Tribunal was upheld, and the visa applicant's application for a Subclass 100 (Spouse) visa was denied.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

In the course of argument, Mr McHugh abandoned the contention that the decision of the Tribunal involved an error of law. The sole issue, therefore, is whether the decision of the Tribunal was affected by actual bias.FACTUAL BACKGROUND The visa applicant applied for a Subclass 100 (Spouse) visa on 29 October 1996. She had married the sponsor the previous day (that is, on 28 October 1996) in a ceremony in Cambodia. At the time of the ceremony the visa applicant was a widow aged 36, with two children. The sponsor was born in Cambodia in 1924. He arrived in Australia in 1982 and became a citizen in 1985. He holds legal qualifications obtained in Cambodia. According to the Tribunal, the sponsor has been married three times. He was first married in Cambodia in 1947. There were seven children of this marriage, of whom four were living at the time of the Tribunal’s decision. One of these children resides in Australia. The sponsor’s second marriage took place in Australia in 1993. The third was the marriage to the visa applicant. The sponsor has also had at least two de facto relationships. The sponsor sponsored two of his previous partners to become permanent residents of Australia. The first sponsorship occurred in the 1980s and resulted in the sponsor’s then de facto wife gaining permanent residency in Australia. The second occurred in 1993, and involved the sponsor’s then wife, Ms Tim. The sponsor and Ms Tim separated in 1995 and divorced in September 1996. The sponsor arrived in Cambodia for a visit on 6 December 1995. He married the visa applicant some ten months later. It is not clear from the Tribunal’s reasons whether the sponsor remained in Cambodia throughout the ten month period. The Tribunal found, however, that he remained in Cambodia for seven months after his marriage to the visa applicant, returning to Australia in May 1997. The sponsor did not see his wife at any time between May 1997 and the date of the Tribunal’s decision in April 2000.THE LEGISLATIVE REQUIREMENTS It was common ground that the criteria for the Subclass 100 (Spouse) visa were set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth), as they stood at the date of the original application (29 October 1996). The relevant criteria were the following:“100.21 Criteria to be satisfied at time of application 100.211(1) The applicant meets the requirements of subclause (2)….(2)The applicant meets the requirements of this subclause if: (a)the applicant is a spouse of an Australian citizen;…100.22Criteria to be satisfied at time of decision100.221The applicant continues to satisfy the criterion in clause 100.211.100.222The sponsorship referred to in clause 100.212 has been approved by the Minister and is still in force.” The expression “spouse” was defined in Migration Regulations 1994, reg 1.15A(1):“1.15A(1) For the purpose of these Regulations, a person is the spouse of another person if:(a)the 2 persons are:(i)married to each other under a marriage that is recognised as valid for the purposes of the Act; or(ii)de facto spouses of each other, as set out in subregulation (2); and(b)the Minister is satisfied that:(i)the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and(ii)the relationship between the 2 persons is genuine and continuing; and(c)the Minister is satisfied that the 2 persons are:(i)living together; or(ii)not living separately and apart on a permanent basis.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J
Regulation 1.15A(3) provided as follows:“(3)In forming an opinion for the purposes of paragraph (1)(b) and (c) in relation to an application for a visa of subclass 100…, the Minister must have regard to all 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.”THE TRIBUNAL’S DECISION The major questions identified by the Tribunal were whether it was satisfied that the sponsor and the visa applicant had “a mutual commitment to a shared life as husband and wife to the exclusion of all others” (reg 1.15A(1)(b)(i)) and that the relationship between them was “genuine and continuing” (reg 1.15A(1)(b)(ii)). The Tribunal noted that a number of Cambodian citizens, in addition to the sponsor himself, had provided declarations in the English language supporting the genuineness of the marriage relationship. It found that the weight to be attributed to those declarations was “reduced”, in part because the statements had been drafted in Australia and the declarants had not used their own words. The Tribunal considered that doubt was cast upon the sponsor’s claims because the same claims had been made in order to secure an Australian visa for his second wife, Ms Tim, also a person much younger than the sponsor. Moreover, the sponsor had not returned to Cambodia to visit his wife. The Tribunal found that the sponsor had“no desire to live with the [visa applicant] if she cannot come to Australia and his commitment to her is a shallow one based on his wanting [her] to come to Australia to look after him”.Accordingly, the Tribunal was not satisfied that the sponsor and the visa applicant had a mutual commitment to a shared life as husband and wife or that their relationship was genuine and continuing.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.