FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5

ORDERS

THE COURT ORDERS THAT:

1.    The name of the third respondent be amended to read ‘Administrative Appeals Tribunal’.

2.    The appeal be dismissed.

3.    The notice of contention be dismissed.

4.    The appellant pay the costs of the first and second respondents as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have had the advantage of reading the reasons to be published of Kenny and Griffiths JJ. I agree in the reasons and the orders proposed by their Honours. I only wish to add the following brief remarks.

2    The task of the delegate and the Tribunal was not straightforward. By reference to the terms of the Migration Act 1958 (Cth) and the regulations thereunder, a value judgment was required to be formed about whether two people had a mutual commitment to a shared life to the exclusion of all others that was genuine and continuing. That task involved careful and sensitive consideration of the evidence of the human relationship presented to the Tribunal. The task was a mixture of fact-finding and evaluative characterisation. If I may say so, the Tribunal’s reasons reflected a close and conscientious attention to that task.

3    In my respectful view, however, the Tribunal elevated love or tender emotion as a factor in the evaluation that does not find reflection in the Act, regulations or proper evaluative process thereunder. That is not to say that such considerations are not relevant and, especially if found to be present, may not be determinative. To love and be loved is the beauty that founds many, but not all, human relationships in which there is a commitment to live as a couple. The approach of the Tribunal at [103] of its reasons may be seen to posit a false dichotomy: between commitment to an agreement for services to meet needs, and commitment to a relationship, as necessarily exclusive of each other. In searching for the factor that distinguished the two parts of the posited dichotomy it appears (as the reasons of Kenny and Griffiths JJ demonstrate) that love in an emotional or romantic sense rose as the discrimen. A couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love. That is not to say that a mere agreement for money or material support in exchange for being in someone’s company and for tending to their needs (domestic and personal) is a mutual commitment to a shared life as partners.

4    The evidence here, and the necessity to consider the demeanour and credibility of the relevant witnesses, makes it impossible to conclude that the ultimate view reached by the Tribunal was necessarily wrong. I am persuaded, however, that the Tribunal misunderstood the legislative requirements and infused into its consideration an element of the need for a form of romantic love in the concepts found in the definition of de facto partner.

Associate:

Dated:    29 January 2016

REASONS FOR JUDGMENT

KENNY AND GRIFFITHS JJ:

Love and marriage, love and marriage

Go together like a horse and carriage

This I tell you brother

You can’t have one without the other…

5    These memorable lines from a song made famous by Frank Sinatra in 1955 substantially encapsulate the issue which is at the heart of this appeal. Shortly stated, that issue is whether, for the purpose of relevant provisions of migration legislation relating to partner visas, there must be love and affection for there to be a genuine spousal or de facto relationship.

6    The Minister appeals from a decision of the Federal Circuit Court of Australia (FCCA) in which it held that the then Migration Review Tribunal (now known as the Administrative Appeals Tribunal) (Tribunal) fell into jurisdictional error in applying relevant provisions in migration legislation bearing upon the question whether the primary visa applicant (Ms Angkawijaya) was, at the relevant time, the “de facto partner” of her sponsoring partner, Mr Elias Limberiou. The primary judge found that the Tribunal’s essential error was to impose its own value judgment in applying the relevant legislative provisions, the value judgment being that the couple did not have a genuine mutual commitment to a shared life together unless “romantic love” was present.

7    During the course of the hearing, the first and second respondents (Ms Angkawijaya and her daughter, Ms Wibisono, who was included in her mother’s visa application) were granted leave to file a notice of contention. The sole ground of that notice is that the Tribunal constructively failed to exercise its jurisdiction to review the delegate’s decision by making a finding that Ms Angkawijaya was not in a de facto relationship with her sponsor within the meaning of s 5CB(2) of the Migration Act 1958 (Cth) (the Act), having regard to other findings by the Tribunal concerning their relationship. The particulars to this ground are:

(1)    the Tribunal considered that a de facto relationship which in the circumstances of this case did not include love and affection was not and could not be a de facto relationship within s 5CB(2) of the Act; and

(2)    the Tribunal’s findings of fact compelled it to conclude that the couple’s relationship was a de facto relationship within s 5CB(2) of the Act.

8    It is convenient to set out the relevant legislative provisions before summarising the background facts (drawing largely upon the primary judge’s description of them in circumstances where the parties’ dispute relates not so much to those facts, but to the proper legal approach to be taken in applying them to the relevant legislative criteria).

Relevant legislation

9    It is a criterion for the grant of a partner visa that the Minister be satisfied that, at the time of the decision, the primary visa applicant is the spouse or “de facto partner” of the sponsoring partner (cl 801.221(2)(c) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations)).

10    The term “spouse” is defined in s 5F of the Act, which relevantly provides:

5F    Spouse

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(c)    the relationship between them is genuine and continuing; and

(d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist…

…

11    The terms “de facto partner” and “de facto relationship” are defined respectively in s 5CB(1) and (2) of the Act (see also s 5CB(3)):

5CB    De facto partner

De facto partners

(1)    For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

(2)    For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

(a)    they have a mutual commitment to a shared life to the exclusion of all others; and

(b)    the relationship between them is genuine and continuing; and

(c)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis; and

(d)    they are not related by family (see subsection (4)).

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist…

…

12    It is to be noted that there are many overlapping aspects of the statutory definitions of “married relationship” and “de facto relationship”.

13    The Act contemplates that regulations may be made in relation to the determination of whether one or more of the conditions for persons to be in either a “married relationship” or a “de facto relationship” exist. Regulation 1.15A is relevant to the Minister’s consideration of whether or not to grant a particular visa which has as a criterion to be satisfied at the time of the decision that the primary visa applicant is a “spouse”. It provides:

1.15A    Spouse

(1)    For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

(2)    If the Minister is considering an application for:

(a)    a Partner (Migrant) (Class BC) visa; or

(b     a Partner (Provisional) (Class UF) visa; or

(c)    a Partner (Residence) (Class BS) visa; or

(d)    a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)    The matters for subregulation (2) are:

(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 person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day‑to‑day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married to each other; and

(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; and

(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.

(4)    ,,,

14    The parallel provisions in the Regulations which prescribe matters to be considered by the Minister in determining whether he or she is satisfied that there is a “de facto relationship” (noting again the many overlapping or common aspects with reg 1.15A) relevantly provide:

1.09A    De facto partner and de facto relationship

(1)    …

(2)    If the Minister is considering an application for:

(a)-(b)    …; or

(c)    a Partner (Residence) (Class BS) visa; or

(d)    …;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)    The matters for subregulation (2) are:

(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 person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day‑to‑day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i)    whether the persons represent themselves to other people as being in a de facto relationship with each other; and

(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; and

(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.

(4)    …

15    It is also relevant to note s 65 of the Act, which makes it clear that, before the Minister (or his or her delegate) can grant a visa, he or she must be satisfied of various matters, including that there is compliance with relevant criteria which are prescribed by the Act or the Regulations. The important point is that compliance with the prescribed criteria turns on the decision-maker’s satisfaction as to whether or not the relevant criteria have been met and not on the objective existence of that fact.

Summary of background facts

16    Ms Angkawijaya, is an Indonesian citizen who first arrived in Australia on a tourist visa in July 1997. At the time of the Tribunal’s decision she was 58 years old. She had unsuccessfully applied for protection visas several times between 1997-2000 and she had remained in Australia unlawfully after her second application failed. During this time she married a person whom she expected to sponsor her to remain in Australia but that person was ineligible to be her sponsor. She was divorced from that person in April 2008.

17    Ms Angkawijaya met Mr Limberiou in May 2006. The Tribunal accepted that they had been living together since at least 2008. At the time of the Tribunal’s review, Mr Limberiou was 89 years old. His former wife had passed away in March 2006, i.e. shortly before he met Ms Angkawijaya.

18    On 12 November 2009, Ms Angkawijaya applied for a Partner (Residence) (Class BS) visa (partner visa), based on her de facto relationship with Mr Limberiou. In May 2010 she was granted a temporary subclass 820 partner visa, which authorised her to remain in Australia until she was notified of a decision regarding her permanent subclass 801 partner visa.

19    On 15 April 2011, Ms Angkawijaya’s daughter, Ms Wibisono, arrived in Australia from Indonesia.

20    On 20 April 2011, the Department received an anonymous allegation that Ms Angkawijaya was not living with Mr Limberiou. This led to a series of communications between the Department and Ms Angkawijaya’s migration agent concerning her partner visa application. On 19 June 2012, the Minister’s delegate and another officer of the Minister conducted simultaneous telephone interviews with both Ms Angkawijaya and Mr Limberiou. The delegate subsequently found that they had given conflicting answers about their relationship.

21    On 20 June 2012, the delegate wrote to Ms Angkawijaya’s migration agent seeking any comments on information that her relationship with Mr Limberiou was arranged for the purpose of obtaining permanent residence and that it was not a genuine spousal relationship. The migration agent provided a response.

22    On 24 September 2012, the delegate determined to refuse the application for a partner visa. The delegate’s reasons for decision contain the following summary of her assessment:

I have considered the information provided by your migration agent regarding your different responses at interview. Whilst I accept that the sponsor is an older man and you are from a non English background, a NAATI qualified interpreter was used during your telephone interview. Your migration agent has provided a response as your why (sic) your answers to questions about the length of your relationship and your ages were incorrect. However I do not consider this as a meaningful response as to why you both provided different answers to basic questions about who lives in your household and your conflicting answers about what you had both done on the day of the interview, the previous day and the previous weekend.

I find that you and your sponsor’s different responses to where your daughter lives a major factor in determining that you and the sponsor do not reside together in a genuine and continuing spousal relationship. The fact that you have not visited any of your sponsors (sic) children’s homes nor have they attended any social functions with you at the sponsor’s home is evidence that you are not accepted by his family as his spouse. I have examined the evidence you have provided in relation to the provisions under regulation 1.09A. I have however given no weight to the evidence provided by you and consider that it is not sufficient to demonstrate that you are in a genuine and continuing relationship with your sponsor. Accordingly, I find that you are not the de facto partner of the sponsor, as defined under section 5CB of the Migration Act.

23    Ms Angkawijaya and her daughter applied to have the delegate’s decision reviewed by the Tribunal. Their representative provided further evidence and submissions in support of their review application.

24    The Tribunal conducted a hearing on 24 April 2014, during the course of which:

(1)    the Tribunal asked Ms Angkawijaya about her relationship with Mr Limberiou, suggesting that it was one of “caring” for him, rather than a feeling of love towards him. She responded by saying that “both are mixed together. There is love. I – I love all people. And, I felt so sad for him when he was crying”;

(3)    when the Tribunal asked her whether the relationship was one where she “looked after” him rather than “being affectionate” towards him, she said: “I love him. I love people, generally”. When she was then asked whether she loved Mr Limberiou more than she loved people generally, Ms Angkawijaya said: “I love all. Everybody”;

(4)    the Tribunal found that Ms Angkawijaya had not told Mr Limberiou about her unlawful migration status when they had first met or when she moved in with him because he did not ask her about it;

(5)    Ms Angkawijaya told the Tribunal that at first her task was to look after Mr Limberiou but then “he was talking about sex” and she told him that, in that case, they should be married. When asked why they did not get married, Ms Angkawijaya said that Mr Limberiou had lied three times by talking about them getting married but that: “in the end, it was a de facto”; and

(6)    the Tribunal asked Ms Angkawijaya how many trips Mr Limberiou had taken out of Australia since she had known him. She said that there had only been one, in 2006. When the Tribunal presented her with Departmental records which indicated that Mr Limberiou had been absent from Australia for a period of three months in 2008, Ms Angkawijaya strongly denied that this was the case and insisted that he had only travelled overseas in 2006.

25    Ms Angkawijaya’s representative took advantage of the opportunity extended by the Tribunal to provide additional evidence and submissions in support of the review of the Tribunal hearing. The material included an acceptance by Ms Angkawijaya that Mr Limberiou had in fact made overseas trips in both 2006 and 2008, contrary to her assertion at the hearing that he had not travelled overseas in 2008.

The Tribunal’s decision summarised

26    The reasons for the Tribunal’s decision to refuse to grant relevant visas to Ms Angkawijaya and her daughter are lengthy. Relevantly, they may be summarised as follows (drawing heavily on the primary judge’s summary of those reasons).

27    The Tribunal summarised the delegate’s decision record, as well as the evidence provided to the Tribunal by Ms Angkawijaya, Mr Limberiou and various other witnesses, including one of Mr Limberiou’s sons (Mr Chris Limberiou).

28    The Tribunal identified the central question as whether Ms Angkawijaya was the “spouse” of Mr Limberiou at the time of its decision (as the primary judge pointed out at [20] of his reasons for judgment, it was more accurate to use the term “de facto partner” rather than “spouse”, but nothing of significance turned on that).

29    Several times the Tribunal emphasised Ms Angkawijaya’s migration history and her several attempts to remain in Australia permanently. It noted that she had remained here for a long period illegally. It stated that her illegal time here while working indicated a “complete disregard for Australian migration law”. The Tribunal described Ms Angkawijaya’s migration history in Australia as a matter of “particular concern”.

30    The Tribunal said that it did not find Ms Angkawijaya “to be a particularly reliable witness”, referring in particular to her initial refusal to accept that Mr Limberiou had travelled to Greece in 2008. The Tribunal noted that Ms Angkawijaya later accepted that she had overlooked that trip and was “honestly confused”, however, the Tribunal stated that “her continued and complete reluctance to acknowledge her incorrect claim during the hearing causes the Tribunal to be concerned about her other claims and evidence in this application”.

31    In considering whether or not the relevant parties were in a de facto relationship, the Tribunal noted that “de facto partner” was defined in s 5CB of the Act. It also noted that, as required by reg 1.09A of the Regulations, it was obliged to consider all of the circumstances of the relationship, including the matters set out in reg 1.09A(3).

32    The Tribunal’s findings on each of the matters under reg 1.09A(3) were summarised by the primary judge in [22] of his reasons for judgment as follows:

(a)    on the financial aspects of the relationship, that Ms Angkawijaya did not have a detailed knowledge of Mr Limberiou's financial affairs, and does not have access to his funds other than the money that he puts into their joint account, which is for her own use and for the support of her children, that Mr Limberiou pays for almost all the household expenses, and that Ms Angkawijaya's earnings are used to provide for her children;

(b)    on the nature of the household, that the parties live together and have been living together since at least 2008, that they share a bedroom, and that Ms Angkawijaya does most of the household chores but Mr Limberiou occasionally prepares a meal;

(c)    on the social aspects of the relationship, that that there is social recognition of the relationship between the parties and that they are known to be a couple, that Mr Limberiou's two sons recognise the relationship, although there is some caution and it is not embraced by the sons. The Tribunal gave “limited weight” to the social recognition of the relationship because of a number of aspects about the relationship that caused the Tribunal “considerable concern”;

(d)    on the nature of the persons' commitment to each other, the Tribunal found as follows at [103]:

The Tribunal is of the view that Mrs Angkawijaya and Mr Limberiou are committed to an agreement that they have negotiated to meet particular needs, rather than committed to a relationship with each other. The Tribunal considers that they have agreed to exchange services, and the Tribunal accepts that to this extent they see the relationship as long term. Mrs Angkawijaya has agreed to stay with Mr Limberiou for as long as he lives, and in return her expenses for her and her children are provided for, and she secures permanent residency for herself and her children. When the Tribunal raised this issue stating that it appeared she was more a carer for Mr Limberiou, than in a committed relationship with him, she stated that both were mixed together. She loves all people. She had felt sorry for Mr Limberiou. The Tribunal accepts that Mrs Angkawijaya has prepared meals for Mr Limberiou, has assisted him with his medication and treatment, and that she accompanies him at home. It accepts that their relationship has been physically intimate. However it does not accept that this represents or demonstrates commitment to him in a shared life together as … partners.

33    After referring to evidence from Mr Limberiou’s doctor which supported the “domestic relationship” between Ms Angkawijaya and Mr Limberiou, the Tribunal found that Ms Angkawijaya had agreed to care for Mr Limberiou in exchange for permanent residency for her and her children and financial support from Mr Limberiou, however, the Tribunal indicated that it did not consider that they were committed to a “shared life together”. Its reasons for coming to that view may be summarised as follows.

34    Looking at the matter from Mr Limberiou’s viewpoint, the Tribunal noted his evidence that he was happy and that he and Ms Angkawijaya were compatible in every way because they did not fight and that they had been together for a long time. Nevertheless, the Tribunal stated that it remained concerned about his level of commitment to Ms Angkawijaya and whether he viewed their relationship as a shared life together. It noted that Mr Limberiou was unable to pronounce and spell Ms Angkawijaya’s surname which, the Tribunal concluded, reflected “a level of indifference” in regard to his relationship with her. The Tribunal added that it seemed that Mr Limberiou’s interest appeared to be that of having someone be with him rather than being committed to a relationship with Ms Angkawijaya and to a shared life together.

35    From Ms Angkawijaya’s viewpoint, the Tribunal noted that there was “some ambivalence” in her evidence about her feelings towards Mr Limberiou. It noted that:

(1)    when asked about the reason for her partner visa application, she said that she loved him and she loved people generally and that when she was asked if she loved him more than she loved people generally she said that she “loves all” and “loves everybody”;

(2)    when asked why they had not married, she said that Mr Limberiou had promised to marry her but had lied three times and he had then forgotten about it;

(3)    Ms Angkawijaya had not told Mr Limberiou about her illegal migration status at the time that she met him or when she moved in with him in circumstances where the Tribunal considered that “people forming a committed relationship would discuss these very important issues and be open and honest about them” and, the fact that she had not told him was “not reflective of a genuine relationship”; and

(4)    Ms Angkawijaya’s lack of awareness that Mr Limberiou had been absent from Australia for three months in 2008.

36    The Tribunal returned to the issue of Ms Angkawijaya’s migration history in [110] of its reasons. It stated there:

The Tribunal has set out Mrs Angkawijaya’s migration history above. It remains very concerned that she had lodged the current application so that she can remain in Australia permanently, rather than there being a genuine commitment to a shared life with Mr Limberiou. When the Tribunal asked what would happen if the application was refused she said that she could not live in Indonesia. The Tribunal finds it concerning that her response did not relate to Mr Limberiou. The Tribunal accepts that motivation to remain in Australia is not mutually exclusive to the being a genuine relationship [sic]. However, given her ambivalence about her feelings towards Mr Limberiou, and the other concerns discussed above, the Tribunal is not satisfied that there is a mutual commitment to a shared life together.

The FCCA proceeding

37    The applicants raised three grounds in their judicial review application. It is necessary to set out only the third ground, as it was this ground which was upheld by the FCCA. That ground was that the Tribunal had misconstrued the test for whether a person is the de facto partner of another person for the purposes of s 5CB of the Act. Three particulars were provided by Ms Angkawijaya in support of that ground (the third of those particulars provided the basis for the primary judge’s decision):

(1)    the Tribunal failed to recognise its finding that Ms Angkawijaya had demonstrated an intention to remain in Australia was consistent with the requirements of a de facto relationship in s 5CB of the Act;

(2)    the Tribunal failed to recognise its view that an agreement had been negotiated between Ms Angkawijaya and Mr Limberiou under which they each agreed to meet particular needs, exchange services, and which they saw as a long term relationship, was consistent with the requirements of a de facto relationship in s 5CB; and

(3)    the Tribunal erroneously considered it to be a requirement for a de facto relationship that it be characterised by romantic love.

38    The primary judge’s reasons for upholding the third judicial review ground may be summarised as follows. First, after noting that the relationship between Ms Angkawijaya and Mr Limberiou was “unconventional”, having regard to the very substantial age gap and the likelihood that Ms Angkawijaya was motivated to enter into a relationship with Mr Limberiou in order to obtain permanent residence in Australia, the primary judge observed that it was likely that Mr Limberiou was motivated to enter into the relationship in order to obtain “the physical and emotional support that he perceives he needs in his old age”. The primary judge added, however, that it did not follow that the relationship did not meet the test under s 5CB of the Act: their relationship had existed since at least 2008 and the financial aspects of it were well established. They lived together in a relationship which was “undoubtedly intimate” and, as the Tribunal acknowledged, the relationship was socially recognised.

39    Secondly, the primary judge accepted that the core of the Tribunal’s decision was to be found in [103] of the Tribunal’s reasons for decision (see [32(d)] above).

40    Thirdly, the primary judge described it as “unrealistic” for the Tribunal to expect there to be “a demonstration of romantic love”, given the circumstances of the relationship and the age gap between the partners. His Honour observed at [57]:

The reality (on all of the material before the Tribunal), was that Ms Angkawijaya and Mr Limberiou had entered into an agreement to remain together until his death and to support each other in a personal relationship. The elements of that relationship went well beyond a contractual agreement to provide care services. It was unrealistic for the Tribunal, given the circumstances of the relationship, and the age gap between the parties to it, to expect a demonstration of romantic love and Ms Angkawijaya was honest in not attempting falsely to assert any romantic love. What was or should have been apparent to the Tribunal was that Ms Angkawijaya showed a genuine commitment to a shared life with Mr Limberiou. He at least arguably had a similar commitment to her.

41    Fourthly, the primary judge then made the following observations and findings at [58] and [59]:

58.    The reasons for entering into that commitment were no doubt calculated to obtain a personal advantage on both sides. She was to get residency. He was to get care and support. Some may disapprove but that is a value judgement. Mr Limberiou was honest when he told the Tribunal that if Ms Angkawijaya were denied a visa he would find someone else. That is what many people do when they are deprived of their partner by circumstances beyond their control. It is neither for this Court, nor the Tribunal, to make a value judgement on the motivation for the relationship.

59    In my opinion, the Tribunal imposed a value judgement in its application of the criteria in regulation 1.09A for the purposes of s 5CB of the Migration Act which led it into error. By applying a value judgement, the Tribunal lost sight of what the Full Federal Court in Minister for Immigration v Dhillon emphatically stated was the true and only test in relation to a partner visa: that is, whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as a husband and wife to the exclusion of all others. The reasons for entering into that commitment are immaterial.

The Minister’s submissions summarised

42    The Minister’s submissions may be summarised as follows. First, it was unhelpful of the primary judge to approach the matter on the basis of whether the Tribunal had imposed a “value judgment” in circumstances where the relevant question under s 5CB(2)(a) was whether the parties had a “mutual commitment to a shared life to the exclusion of all others”. This necessarily required the Tribunal to make an evaluative judgment. This did not mean, however, that the Tribunal could assess the relationship by reference to its own idiosyncratic moral beliefs: it had to exercise its judgment by reference to the relevant legislative criteria.

43    Secondly, the Minister submitted that the primary judge had to ask whether the Tribunal:

(1)    took into account an irrelevant consideration by having regard to the parties’ motivations for entering into their relationship; or

(2)    misconstrued or misapplied s 5CB and reg 1.09A by assuming that romantic love is a necessary requirement of a de facto relationship; or

(3)    misconstrued or misapplied those provisions in failing to find that, given the mutual commitment that the Tribunal accepted existed between the couple, their relationship was necessarily a de facto relationship.

44    On the first of these matters, the Minister submitted that the primary judge made an appellable error in finding that the Tribunal had erred by considering the reasons why the couple had entered into their relationship. This consideration was relevant because reg 1.09A(2) obliged the Tribunal to consider all of the circumstances of the relationship, which must include consideration of the parties’ motivations. The Minister submitted that the Full Court decision in Minister of Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 200 (AustLII medium neutral citation [1990] FCA 144) (Dhillon) did not stand for the proposition that a decision-maker cannot consider such motivation, rather the Court found there that it was not necessarily inconsistent with a genuine relationship that one or both parties entered into it with the hope of becoming eligible to reside in Australia.

45    On the second of the matters, the Minister challenged the primary judge’s conclusion that the Tribunal had erred by construing s 5CB as requiring the de facto relationship to be one involving romantic love because:

(1)    the Tribunal did not state that romantic love was a requirement of a de facto relationship or that its absence was fatal to the application. The Tribunal repeatedly referred to the relevant statutory language, namely whether the couple had a “mutual commitment to a shared life together”;

(2)    the primary judge did not read the Tribunal’s reasons as a whole. They demonstrated that the Tribunal did not approach the question on the basis that romantic love was a necessary element of a de facto relationship. Rather, the Tribunal was not satisfied of the existence of the necessary mutual commitment because of Mr Limberiou’s apparent indifference to Ms Angkawijaya and her ambivalence towards him. Those findings were open on the evidence and consistent with the relevant legislative provisions; and

(3)    even if, contrary to the above, the Tribunal did consider the absence of romantic love as a factor, even a decisive factor, that did not mean that the Tribunal construed the relevant legislative provisions as requiring a relationship to involve romantic love. Rather, it would suggest that in this particular case the requirement of “mutual commitment to a shared life” was not demonstrated because of the absence of romantic love.

46    Finally, on the third of the matters, the Minister contended that, if and to the extent that the primary judge found that the Tribunal had misconstrued or misapplied the relevant provisions by not concluding that there was a de facto relationship based on the findings which the Tribunal had made regarding the couple’s mutual commitment, the primary judge erred because:

(1)    simply because certain matters were consistent with the requirements of a de facto relationship, did not mean that there was such a relationship, particularly when it was open to the Tribunal to find as it did that Ms Angkawijaya’s desire to stay in Australia was her sole motivation for entering into and continuing her relationship with Mr Limberiou;

(2)    it was not the primary judge’s task to determine whether the couple had a genuine commitment to a shared life. Rather the question on a judicial review was whether there was evidence which was capable of satisfying the Tribunal that the relevant legislative provisions were satisfied. It was open to the Tribunal to rely on its findings, such as Ms Angkawijaya’s motives for entering into the relationship and Mr Limberiou’s apparent indifference to her, as well as the limited degree of communication between them, in concluding that it was not satisfied that there was a genuine mutual commitment to a shared life; and

(3)    emphasising that the text of s 5CB refers not just to a “mutual commitment”, but to a “mutual commitment to a shared life…”, the Minister contended that merely because there was material which suggested that there was a mutual commitment to satisfying the individual needs of the couple, did not mean that there was a mutual commitment to a shared life.

The first and second respondent’s submissions summarised

47    Ms Angkawijaya and her daughter submitted that this was a case where it was appropriate to refer to the transcript in order to construe the Tribunal’s reasons and, in particular, to establish the Tribunal’s concern as to whether the couple’s relationship was characterised by mutual love and affection (citing Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; 247 ALR 385 (Hamersley Iron) at [79]-[87] per Weinberg J).

48    They submitted that there was evidence that the couple were in a romantic relationship but, even if the Tribunal had found that Ms Angkawijaya “was little more than a calculating person who was prepared to enter into a life-long, exclusive and shared relationship with Mr Limberiou in return for financial security and residence in Australia, this too met the requirements of s 5CB(2)(a) and (b)”. They submitted that the Tribunal’s failure to recognise such a relationship as one which met the legislative criteria led it into error.

Resolution of the appeal

49    The appeal raises the following three primary issues:

(1)    in considering whether there is a de facto relationship within the meaning of s 5CB and reg 1.09A, is it relevant to consider whether or not there is in the relationship love and affection in the sense of manifested gentleness of tender affection or feeling (to suggest just one meaning of these complex and elusive emotional concepts);

(2)    does the absence of love and affection in a relationship necessarily mean that there is not a genuine de facto relationship for the purposes of the relevant legislative provisions; and

(3)    did the primary judge fall into appellable error in finding that the Tribunal committed a jurisdictional error because, in assessing the relationship between Ms Angkawijaya and Mr Limberiou, it imposed an unauthorised value judgment which was based on the Tribunal member’s expectation that, for there to be a genuine de facto relationship, there had to be love and affection?

50    As to the first of those issues, it is important to note the following relevant features of s 5CB and reg 1.09A:

(1)    to be eligible to be granted a partner visa it is insufficient that a couple demonstrate to the Minister’s satisfaction that they are de facto partners: it must be demonstrated to the Minister’s satisfaction that they are in a de facto relationship (s 5CB(1) and (2)). The statutory regime focuses on the existence of a de facto relationship. The same is true for spouses. Where the Minister is considering an application for a partner visa based on a claimed spousal relationship, it is insufficient that the relevant persons are married. It must be demonstrated to the Minister’s satisfaction that they are in a marriage relationship (s 5F(1) and (2));

(2)    where the Minister is considering an application for a partner visa based on a couple being in a de facto relationship, which requires a state of satisfaction that each of the four conditions in s 5CB(2) exist, the Minister must consider all of the circumstances of the claimed relationship, as required by reg 1.09A(2);

(3)    a non-exhaustive list of specific matters which have to be considered by the Minister in relation to the assessment of the claimed de facto relationship is set out in reg 1.09A(3);

(4)    these matters are:

(i)    the financial aspects of the relationship;

(ii)    the nature of the household;

(iii)    the social aspects of the relationship; and

(iv)    the nature of the persons’ commitment to each other;

(5)    in considering each of these four matters, the Minister also has to take into account an additional non-exhaustive list of relevant considerations which are set out in reg 1.09A(3) in relation to each of the four matters;

(6)    for example, in the case of matter (iv) above (nature of mutual commitment), the relevant considerations are:

(v)    the duration of the relationship;

(vi)    the length of time during which the couple have lived together;

(vii)    the degree of companionship and emotional support they draw from each other; and

(viii)    whether the couple see their relationship as a long-term one.

51    All the matters and considerations which are set out in reg 1.09A(3) may properly be described as relevant considerations which the decision-maker is bound to take into account because the legislation so requires.

52    As emphasised above, however, these matters and considerations are not an exhaustive list of the potentially relevant matters and considerations. The Minister’s task under s 65 of the Act is subject to an overarching obligation imposed by reg 1.09A(2) to consider all the circumstances of the claimed de facto relationship. There is no basis in the legislative scheme to conclude that those circumstances do not include a consideration of whether or not there is love and affection in a claimed de facto relationship. In a particular case, for example, the evidence may suggest that the love and affection between the couple is very strong: that would be relevant to the genuineness and continuing nature of the relationship, as well as to the question of there being a mutual commitment to a shared life.

53    That is not to say, however, that the existence or absence of these aspects of a relationship is determinative. There may well be love and affection present in a relationship yet the Minister may not be satisfied that the visa should be granted because, having regard to the evidence relating to some other matter or consideration (whether or not specified in reg 1.09A(3) and as long as the matter or consideration is relevant to the circumstances of the relationship), the relevant criteria for the grant of the visa are not met to the Minister’s satisfaction at the time of the decision. Likewise, because the existence of love and affection is not determinative of the question whether there exists a de facto relationship at the relevant time, its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.

54    That deals with the first two primary issues set out above.

55    The third issue is whether the Minister has established that the primary judge erred in his finding that the Tribunal fell into jurisdictional error. For the following reasons we consider that the primary judge did not fall into appellable error.

56    It was open to the primary judge to find that, as a matter of fact, in refusing to grant a partner visa the Tribunal proceeded on the basis that it was necessarily fatal to the partner visa application that there was a lack of love and affection in the relationship. There is no need to resort to the transcript of the Tribunal hearing to make good that finding. Accordingly, we need not determine the question whether Hamersley Iron applies here. There is sufficient material in the section of the Tribunal’s reasons for decision which deals with reg 1.09A(3)(d) and the nature of the couple’s commitment to each other (when read together with the Tribunal’s earlier description of the evidence given by the couple on their relationship) to justify that finding, as the following analysis demonstrates.

57    In addressing the nature of the couple’s commitment to each other and the considerations set out in reg 1.09A(3)(d) the Tribunal stated in [103] of its reasons for decision (which is set out in [32(d)] above), that it considered that the couple were committed to an agreement to meet particular needs rather than being committed to a relationship with each other. It is evident from the balance of that paragraph that the Tribunal proceeded on the basis that, for there to be a committed de facto relationship, there had to be love and affection in that relationship and it was insufficient that Ms Angkawijaya was merely a “carer” for Mr Limberiou. It is in this context that the Tribunal made express reference to Ms Angkawijaya’s evidence that she “loves all people” and “felt sorry for Mr Limberiou”. It is evident that the Tribunal viewed that evidence as falling short of establishing the component of love and affection which it apparently considered was essential for there to be a committed de facto relationship, even though it accepted that the couple’s relationship has been physically intimate.

58    Later in its reasons for decision, at [106], the Tribunal returned to describe “the ambivalence” of Ms Angkawijaya’s feelings toward Mr Limberiou. There, the Tribunal again emphasised Ms Angkawijaya’s evidence that “she loves people generally”, “loves all” and “loves everybody”. This evidence from Ms Angkawijaya was cited by the Tribunal as not reflecting a person who was committed to a shared life with Mr Limberiou. Plainly that was because the Tribunal considered that Ms Angkawijaya had not professed to love Mr Limberiou personally more than the love that she had for everybody.

59    The Tribunal’s view that there was “ambivalence” in Ms Angkawijaya’s feelings towards Mr Limberiou is repeated in [110] of its reasons for decision in the context of the Tribunal explaining why it was not satisfied that Ms Angkawijaya had a genuine commitment to a shared life with Mr Limberiou. It may be accepted that there were additional reasons for that conclusion by the Tribunal. Those other reasons included Ms Angkawijaya’s migration history (including the Tribunal’s findings that Ms Angkawijaya had not openly and honestly discussed her illegal status with Mr Limberiou when she either met him or moved in with him), her lack of knowledge of what the Tribunal described as Mr Limberiou’s “extended absence” overseas in 2008, and the limited communication between the couple because of their respective linguistic limitations. Merely because the Tribunal took into account its findings regarding other aspects of the couple’s relationship does not derogate, however, from the fact that it also considered that the lack of love and affection in the relationship indicated that there was not the requisite mutual commitment to a shared life together.

60    Not only is it clear that the Tribunal took into account its findings regarding the “ambivalence” and “detachment” in Ms Angkawijaya’s relationship with Mr Limberiou, it also took into account its findings concerning Mr Limberiou’s feelings towards Ms Angkawijaya on this issue. This is most apparent in [105] of the Tribunal’s reasons for decision where, after noting Mr Limberiou’s evidence that “he is happy and they are compatible in every way because they do not fight and they have been together for a long time”, the Tribunal stated that it remained concerned about “his level of commitment to Mrs Angkawijaya and whether Mr Limberiou views their relationship as a shared life together”. The Tribunal considered that Mr Limberiou’s inability to pronounce and spell Ms Angkawijaya’s surname reflected “a level of indifference” in regard to Mr Limberiou’s relationship with Ms Angkawijaya. When the Tribunal then referred to Mr Limberiou’s apparent interest being to have “someone being with him rather than being committed to a relationship… and to a shared life together”, the Tribunal was clearly referring to what it considered to be an absence of evidence from him that he had feelings of romantic love towards Ms Angkawijaya.

61    Although we reject the Minister’s claims that the primary judge erred, it should not be thought that we are in full agreement with all the language used by his Honour in upholding the judicial review application. First, we do not consider that it was apt to describe the Tribunal’s error as involving the imposition by it of a “value judgment” on its part in applying the relevant legislative provisions. As the Minister pointed out, the decision-maker’s task under s 65 of the Act focuses on the question whether the requisite state of satisfaction exists in relation to compliance with the prescribed criteria for the grant of a partner visa. An assessment of the various matters and considerations which are relevant to the application of s 5CB and reg 1.09A necessarily involves an evaluation of those matters and considerations on the part of the relevant decision-maker, who must balance them against each other having regard to all the relevant circumstances. As Conti J stated in Jian Xin Lui v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 at [23]:

In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.

62    The Tribunal’s error here was not to impose a value judgment, but rather was to misconstrue and misapply the relevant provisions by proceeding on the basis that, for a partner visa to be granted, it had to be satisfied that there was love and affection in a de facto relationship at the time of its decision.

63    Secondly, the primary judge concluded his reasons for judgment by stating that the Tribunal had lost sight of what the Full Court had “emphatically stated” in Dhillon that the “true and only test in relation to a partner visa” is:

…whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as a husband and wife to the exclusion of all others. The reasons for entering into that commitment are immaterial.

(Emphasis added).

64    We would make the following comments on this aspect of the primary judge’s reasoning:

(1)    in a case such as here where there is a claimed de facto relationship it is, of course, not relevant to assess and determine the presence of a mutual commitment to a shared life as a husband and wife to the exclusion of all others and we strongly doubt that the primary judge intended to suggest otherwise; and

(2)    we also doubt that the words which are emphasised in the extracts above were intended by his Honour to suggest that the parties’ motivations for entering into a relationship are always irrelevant to the statutory task. Rather, we understand the primary judge to be making the point that the determination of whether or not a decision-maker is satisfied that there is a genuine de facto relationship is one which must be made as at the time of the decision and not by reference to some earlier point in time, such as when the parties embarked upon their relationship. In our view, as long as the relevant time is firmly kept in mind, we see no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship. However, as was emphasised by the Full Court in Dhillon at [11] per Northrop, Wilcox and French JJ, those motivations may change and the critical issue is whether or not the administrative decision-maker is satisfied that the parties are in a genuine de facto relationship as at the time of the decision. We do not consider that the Tribunal erred in the approach it took to the relevance of what it considered to be Ms Angkawijaya’s motivation to remain in Australia. The Tribunal correctly observed in [110] that Ms Angkawijaya’s motivation was not “mutually exclusive” to there being a genuine de facto relationship. That statement is not inconsistent with Dhillon.

65    For these reasons, we reject the Minister’s contention that the primary judge erred in finding that the Tribunal proceeded on the basis that love and affection was a requirement of a de facto relationship and that its absence was fatal to a partner visa application.

66    We also reject the related submission by the Minister that, even if the primary judge properly construed this aspect of the Tribunal’s reasons for decision, the Tribunal’s consideration of the significance of the absence of love and affection in the couple’s relationship simply reflected the evidence in this particular case and did not demonstrate that the Tribunal construed the relevant legislative provisions as always requiring that there be love and affection for there to be a genuine de facto relationship. The passages from the Tribunal’s reasons for decision to which we have referred in [34]-[36] above all appear in that part of the reasons which addresses the nature of the couple’s commitment to each other. The context for that analysis was the Tribunal’s understanding and application of the legislative requirements imposed by s 5CB(2) and reg 1.09A(3)(d) (see [84]-[85] and [102]-[110] of the Tribunal’s reasons for decision). The primary judge was correct to view the Tribunal’s reasons as revealing that its consideration of the issue of love and affection in the relationship was not simply a product of the particular evidence before it but rather stemmed from the Tribunal’s erroneous belief that the relevant legislative provisions made this a fundamental if not determinative issue.

Notice of contention

67    The Minister’s appeal having been rejected, it is strictly unnecessary to determine the notice of contention. However, we would make the following two observations. First, the notice of contention does not materially add to the fact that the primary judge’s decision that the Tribunal committed jurisdictional error has been upheld. The jurisdictional error is that the Tribunal misconstrued and misapplied the relevant legislative provisions by proceeding on the basis that, for a partner visa to be granted, it had to be satisfied that there was love in a de facto relationship at the time of its decision. This jurisdictional error resulted in the primary judge making orders which quashed the Tribunal’s decision and obliged it to redetermine the partner visa application according to law. Against that background characterising the Tribunal’s error as a constructive failure to exercise jurisdiction adds nothing to the relief which was granted below and which still obtains because the appeal has been rejected.

68    Secondly, in referring to the Tribunal being “compelled” to reach a particular conclusion because of the findings of fact made by it, the notice of contention appears to invite the Court to undertake an impermissible merits review. As we have emphasised above, an important feature of the relevant legislative scheme is that the ultimate determination of whether or not a couple are in a genuine de facto relationship is a matter which ultimately depends upon the “satisfaction” of the primary decision-maker (and the Tribunal on a review) as at the time of the making of the relevant decision. It is the task of those administrative decisions-makers and not the Court exercising a judicial review jurisdiction to consider and evaluate all the relevant circumstances of the relationship within the framework of the relevant legislative criteria. The Court’s task is to ensure that the administrative decision-makers carry out their task in accordance with relevant legal principles.

Conclusion

69    For these reasons the appeal should be dismissed and the Minister ordered to pay the costs of the first and second respondents as agreed or assessed. The notice of contention should also be dismissed. It occupied little time in the proceeding and there is no basis for making a specific order for costs in relation to it.

Associate:

Dated:    29 January 2016