FEDERAL COURT OF AUSTRALIA

Tolibao-Cortes v Minister for Immigration and Multicultural Affairs

[2001] FCA 1183

EDEN TOLIBAO-CORTES v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 349 of 2001

HEEREY J

21 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is allowed.  The decision under review will be set aside and the matter remitted to the Tribunal differently constituted for further consideration according to law.

2.         The respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     The applicant appeals from a decision of the Migration Review Tribunal (the Tribunal) given on 27 March 2001 which affirmed a decision of a delegate of the Minister to refuse the grant of an extended eligibility Temporary Class TK Visa Subclass 820 spouse. 

2                     The applicant is a female national of the Philippines born on 6 May 1977.  She married the nominator Mr Glen Cortes, an Australian citizen on 26 September 1999.  It was not in dispute that the marriage was a valid one.

3                     The requirements of the visa relevantly for present purposes are set out in reg 1.15A(1A) and (3) of the Migration Regulations 1994 as follows:

(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.

….

(3)       In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

(aa)     an Extended Eligibility (Temporary) (Class TK) visa; or

(ab)     a Family (Residence) (Class AO) visa; or

(ac)      a General (Residence) (Class AS) visa; or

(ad)     a Spouse (Migrant) (Class BC) visa; or

(ae)      a Spouse (Provisional) (Class UF) visa;

the Minister must have regard to all of 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.”

4                     The Tribunal in its reasons set out the history of the applicant and her husband as follows: 

“16.     A hearing was held on 27 March 2001 at which the visa applicant gave evidence.  She said that since they married in September 1999 they have lived happily together.  She said they live with her husband’s parents in Laverton, a room has been made for them in the garage.  She said she now had started working and had a regular job with a plastics company, her husband works for Toyota nearby and he takes her to work each day.  She said she and her husband go out together for special occasions such as his birthday.  She said they were both saving to buy a property but that at the moment they had financial difficulties.  She was very upset when after she became pregnant they realised their financial situation could not afford a child and so she had the pregnancy terminated.  Her husband had debts to pay off for a sports car, a motor bike, and other debts on his credit cards.  She said they had a simple wedding at the registry office, but hoped to have a large celebratory wedding in the Philippines later.  She said she and her husband had now  found a small unit, they had put a bond on it, and would soon move in.  Her husband had to go to the Philippines unexpectedly in February because of the death of his grandmother which had taken their savings and so delayed them setting up their own place.  She said as their pay was put into a bank account it was easier to maintain separate bank accounts.

17.       The nominator gave evidence and said he had known the visa applicant since childhood, he left the Philippines in 1987, but when he went back with his family in 1998 he met the visa applicant and they became close. When she came out here to visit and help her sister, their relationship became stronger and they decided to marry.  He said they  had financial difficulties but that the visa applicant’s salary was paid into a joint account.  He said they lived in a garage at his parents house.  He said their savings were depleted with his unexpected trip back to the Philippines.  In regard to conflicting accounts he said that his wife did not speak much English, and also terms like “doonah” were strange ones to her in the Philippines where the word was not used.  Also there was misunderstanding about knowledge of each other’s families simply because of different names people were known by.  He said they did everything together, and had a regular life as husband and wife.  He said his mother did most of the cooking but the visa applicant cooked sometimes.  He said he really wanted to settle down, and that with the stress of waiting for a visa for his wife he could not sleep and was distressed. He said they had found a unit and would soon move into it.

18.       Patrick Hennessy gave evidence, and said he was married to the visa applicant’s sister.  He said he knew the whole family well.  The visa applicant came out to help another sister who was ill, and on meeting the nominator again this rekindled their romance and they then married.  He said it was a “100 per cent genuine marriage”.  He said the older sister is married to the nominator’s brother and so he knew both families well.  He said the so called discrepancies in the accounts by the visa applicant and the nominator could all be explained logically.  He said the couple have lived together since they married.  The pregnancy was a very difficult issue for them.

19.       Dolores Tudtud gave evidence, she said she was married to the nominator’s uncle.  She said she knew both families.  She said she assisted in the wedding celebratiions and gave the couple a gift of a room at a city hotel for their wedding night.  She said she saw them often, they attended family gatherings and social events together.  She said she was proud of them as a couple as they had experienced a difficult time.  She said they lived with his parents in the garage at their home.”

5                     After referring to a number of authorities and in particular Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon, Full Court unreported 8 May 1990, the Tribunal considered the factors required by reg 1.15A(3) as follows:

“26.     Regulation 1.15(3)(a) deals with the financial aspects of the relationship. The couple have submitted eight pages of bank statements of a joint bank account from the Commonwealth Bank which cover the period January 1999 to November 2000, as well as            six pages of bank statement of the MasterCard account in the nominator's name only. However, it seems that they do not share financial assets and obligations. The parties have a number of separate financial obligations for loan repayments. The nominator’s pay is deposited in a separate bank account. They do not own any significant assets, either jointly, pooled or otherwise, nor do they have any joint liabilities or mutual legal obligations other than those arising from marriage.

27.       Regulation 1.15(3)(b) focuses on the nature of the household. The evidence that they are living together in a continuing relationship comes from family members, it is not corroborated by other evidence. At interview, they provided conflicting accounts of what they had done on the morning of the interview and they gave different accounts of the items in their bedroom. They were not able to provide the name and ages of each other’s family members. They gave explanations for these discrepancies at the hearing. They have no children. They are both employed. There was family evidence that they present themselves as husband and wife. At interview they gave conflicting accounts of their wedding details, including who paid for the ring. The couple submitted nine photographs of themselves only. The review applicant travelled to the Philippines in December 1999 for a reunion. The nominator was unable to travel with her but travelled later in January 2000 to visit his parents, and the couple returned to Australia together.

28.       Regulation 1.15(3)(c) looks at the social aspects of the relationship. The parties have a very limited social life. At the hearing they stated they undertook daily tasks together, and had some celebrations and attended family functions(regulation 1.15A(3)(d)). In regard to the nature of their commitment to each other(regulation 1.15A(3)(e)). The couple gave conflicting accounts at interview of their first outing together and the development of their relationship. They did not provide any evidence of their contact during the 10-year period that the review applicant was overseas and the nominator in Australia. They provided four pages of telephone accounts for the period August to November 2000 and all these accounts bear only the review applicant’s name. The couple have submitted a copy of their mutual Will and evidence of the review applicant being the beneficiary of the nominator’s superannuation, and evidence that the nominator is also the beneficiary of the review applicant’s superannuation. They have only now made moves to obtain a unit themselves and provided evidence of a bond but had not moved in. The pregnancy which would normally indicate a commitment was terminated.

29.       The evidence under regulation 1.15A(3) falls short of establishing a genuine relationship and, in those circumstances, the Tribunal finds on balance that the visa applicant does not meet the requirement that the visa applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis (regulation1.15A(1)). Hence the evidence the parties have provided would not substantiate a finding that they met or meet the criteria of regulation 1.15A. Therefore the visa applicant does not satisfy clause 820.221(1)(a) and so does not meet the requirements for an 820 visa.

30.       As the visa applicant does not hold a subclass 820 visa, it follows that the Tribunal finds that he is unable to satisfy the requirements of clause 801.221.

6                     In my opinion there was an error of law in the way the Tribunal dealt with the evidence which came from members of the applicant's family.  It was wrong to treat evidence of such a kind as being somehow less valuable because it was "not quite corroborated by other evidence".  The evidence was particularly important because it was given in response to a letter the Tribunal itself sent on 27 February 2001 to the applicant inviting her to give information as to evidence about the development of the relationship, evidence of the marriage and who attended the wedding, evidence of cohabitation and evidence of the pregnancy.  In response to that there were statutory declarations provided by Mrs Tudtuol, Mrs Cortes, Mrs Hennessy and Mrs Carol McBride.  The last mentioned was not related to the applicant or her husband.

7                     Further, the Tribunal, in my opinion, committed the error spoken of by the Full Court in Dhillon where it is said at paragraph 10 in the AustLII version:

“It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision.  If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision.  Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.  A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.”

8                     The terms of reg 1.15A(3) require the decision-maker to deal with specific aspects, but the decision-maker is not relieved from the obligation to make finding facts if, in the circumstances of the case, they are relevant.  The decision-maker in this case did not - while one might say, hinting that the relationship was a contrived one - make any firm findings and this not withstanding evidence, not on its face implausible, completely to the contrary.  This is rather compounded by the fact that at the hearing the Tribunal, when discussing the evidence with Mr Hennessy and pointing out the lack of evidence comparable to that produced in other cases said:

“I don't disbelieve you people, but it's a question of looking at evidence.”

9                     The application will be allowed.  The decision under review will be set aside and the matter remitted to the Tribunal differently constituted for further consideration according to law. 

10                  There will be an order that the respondent pay the applicant's costs of the proceeding. 

Associate:

Dated:              23 August 2001