FEDERAL COURT OF AUSTRALIA

Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596

MIGRATION – application for Extended Eligibility (Temporary) (Class TK) visa – Migration Review Tribunal (“MRT”) found that no spousal relationship existed between the applicant and nominator – whether MRT failed to apply relevant criteria – whether MRT contravened s 359A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s 39B(1)

Migration Act 1958 (Cth), ss 31, 45(1), 65(1), 348(1), 349, 359A, 359(4), 424A, 474

Migration Regulations 1994 (Cth), rr 1.15A, 2.01, 2.03, sched 2 subclass 820

Migration Amendment Regulations 1999 (No. 13) (Cth), No 259 of 1999, reg 5(5)(g), Sched 2 Item 2224

Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352, cited.

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, cited.

SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411, cited.

NACL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 387, cited.

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, cited.

DONG CHEOL WOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1032 OF 2002

SACKVILLE J

SYDNEY

20 DECEMBER 2002

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.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) for relief in respect of a decision made by the Migration Review Tribunal (“MRT”) on 4 September 2002.  The MRT affirmed a decision of a delegate of the respondent (“the Minister”) refusing to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa (“EE Visa”).

2                     The applicant is a national of South Korea, born on 30 April 1956.  He first entered Australia on 17 April 1996.  Thereafter he left and re-entered the country on a number of occasions, on various visas.  On 26 March 1998, he completed a visa application form in which he sought both an EE Visa and a General (Residence Class AS) visa. 

3                     Each of these classes of visa has several sub-classes.  Although the delegate considered other possibilities, the applicant’s principal claim was that he met the requirements of subclass 820 (Spouse), which was one of the subclasses of an EE visa.  The only relevant subclass of the General (Residence Class AS) visa was a subclass 801 (Spouse).  The applicant could meet the requirements for subclass 801 (Spouse), however, only if he first satisfied the requirements for subclass 820 (Spouse).

4                     The applicant was nominated in connection with his application for an EE Visa by Ms Jung Sook Kim (“the nominator”).  The nominator, at the time, was an Australian permanent resident.  She was born in Seoul on 16 December 1948.  She became an Australian citizen in 2000.

5                     The delegate found that the applicant was unable to meet the requirements of subclass 820 (Spouse) because he did not come within the definition of “spouse” contained in Migration Regulations 1994 (Cth) (“Migration Regulations”), reg 1.15A.  In particular, the delegate found that the evidence did not establish that the applicant and the nominator were in a spousal relationship either at the time of the application or at the time of the decision. 

6                     Following rejection of his application by the delegate, the applicant applied to the MRT for review.  The MRT approached the matter on the basis that the review was in respect of the decision to refuse to grant the EE visa.  The MRT also proceeded on the basis that the application for review included the applicant’s three children, then aged between 20 and 15 years, as secondary applicants.  However, by the time of the MRT’s decision, the eldest child, the applicant’s son, had withdrawn his application for review. 

the legislation

7                     Section 31(1) of the Migration Act 1958 (Cth) (“Migration Act”) provides that there are to be prescribed classes of visas.  Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class.  A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1).  After considering a valid application for a visa, the Minister, if satisfied, inter alia, that the relevant criteria have been satisfied, is to grant the visa: s 65(1)(a).

8                     Regulation 2.01 of the Migration Regulations provides that, for the purposes of s 31 of the Migration Act, the prescribed classes of visa include the classes set out in the items in schedule 1.  Schedule 1 includes Item 1211 “Extended Eligibility (Temporary) (Class TK)”.  The subclasses for an EE visa include subclass 820(Spouse): Item 1211(4).

9                     The prescribed criteria for the grant to a person of a visa in a particular class are those set out in a relevant Part of Schedule 2: Migration Regulations, reg 2.03.  Schedule 2 includes the requirements for subclass 820 (Spouse).

10                  An applicant seeking to satisfy the requirements for subclass 820 (Spouse) visa mustshow, relevantly, that he or she is a spouse of the person who is an Australian citizen or Australian permanent resident and has been nominated by that Australian citizen or resident: cl 820.211(2)(a), (c).  It is also necessary for an applicant to continue to meet the requirements of cl 820.211(2) at the time of the MRT’s decision: cl 820.221(1)(a).

11                  Regulation 1.15A of the Migration Regulations defines “spouse” for the purposes of the Regulations.  Regulation 1.15A relevantly provides as follows:

“(1)     For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a)               in a married relationship, as described in sub regulation (1A);

…

(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;

…

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.”

12                  As the MRT pointed out, subclass 820 (Spouse) was removed from the subclasses of the EE Visa with effect from 1 November 1999: Migration Amendment Regulations 1999 (No. 13) (Cth) No. 259 of 1999, Sched 2, Item 2224.  The Migration Amendment Regulations 1999, reg 5(5)(g) provides that the regulations in force immediately before 1 November 1999 continue to apply to pending applications including the present application.  For that reason I have referred to the relevant provisions as if they remain in force.

the mrt’s reasons

13                  The MRT held a hearing on 15 August 2002.  Oral evidence was given by the applicant, the nominator and the nominator’s daughter, Mrs Choi.  No evidence was given by any of the applicant’s three children, a matter the MRT considered to be of some significance.

14                  The MRT summarised the criteria applicable to subclass 820 (Spouse) by reference to the following questions:

·        Was the visa applicant the spouse of the nominator at the time of the visa application?

·        Was the nominator an Australian citizen [or] an Australian permanent resident at the time of the visa application?

·        Was the visa applicant the holder of a ‘substantive visa’ at the time of application?

·        Does the visa applicant continue to be the spouse of the nominator at the time of the decision?

·        Is the nomination of the visa applicant approved?

15                  So far as the first and fourth criteria were concerned, the MRT observed that reg 1.15A(3) sets out mandatory considerations.  Accordingly, the MRT, in forming an opinion as to whether a married relationship existed, had to take into account those considerations.  The MRT then proceeded to deal with the applicant’s claim by reference to a number of headings derived from reg 1.15A(1) and (3).

The Qualifying Elements for a Married Relationship

16                  The MRT found that the applicant and nominator had been married at a ceremony held at Carlingford on 17 February 1998.  At the time of the decision, they were still married to each other.  Accordingly, the applicant satisfied reg 1.15A(1A)(a).

The Nature of the Household

17                  Although the applicant initially claimed that he had resided with the nominator from November 1997, the MRT found that the applicant and nominator had started living together in February 1998. 

18                  The MRT then referred to a range of documentary evidence.  It noted that the applicant claimed that during the period July 2000 to February 2001, he had been working in Tumut.  He said that during that period his wife and children lived at premises at Auburn Road, Birrong.  In this section of the reasons, however, the MRT made no findings in relation to the applicant’s claims.

The Social Aspects of the Relationship

19                  The MRT accepted the applicant’s evidence that the only people who attended the wedding were the nominator’s daughter, Mrs Choi, and Mrs Choi’s husband.

20                  The MRT observed the applicant and nominator had given different accounts as to when they first met.  At the hearing, both had claimed that they first met in October 1997, but this was contradicted by movement records which showed that the applicant had not been in Australia at that time.

21                  The MRT referred to statutory declarations provided by Mrs Choi and her husband, both of whom attested to the genuineness of the relationship between the applicant and the nominator.  According to Mrs Choi, she referred to the applicant as “Dad”, and stated that she and her family would often visit her “Mum and Dad”.  The MRT noted, however, that no evidence had been given by the applicant’s employer or workmates.  Nor had any evidence been given by the applicant’s children indicating that they recognised the nominator as their stepmother or their father’s wife. 

The Financial Aspects of the Relationship

22                  The MRT referred to documents that the applicant produced in support of his claims, including material relating to a joint bank account.  The MRT found that there was

“little evidence of the pooling of finances for major financial commitments.  The car agreement is only in the name of the…applicant.  The [MRT] gives the existence of the joint account no weight [since it has only been opened recently and has had no usage].  Some bills are in joint names.”

The Nature of the Persons’ Commitment to each other

23                  The MRT noted that the applicant and nominator had been joint proprietors of a business known as “Han Do Welding Services” in 1997.  The nominator had told the delegate, however, that she knew nothing of this business.  A business registration indicated that at the time of the hearing, the applicant was the sole proprietor of the business and had been so since November 2000. 

Whether there is a Mutual Commitment to a Shared Life as Husband and Wife to the Exclusion of all Others

24                  The MRT said this:

“No evidence such as wills or life insurance policies has been provided.  Due to inconsistencies in the evidence given at hearing [compared with] evidence in previous statutory declarations, the unreliability of the evidence given and the lack of supporting documents [the MRT] does not accept the couple’s professed commitment to each other.”

Whether the Persons live together, or do not live separately and apart on a permanent basis

25                  The MRT referred to contradictions in the evidence as to the current residence of the applicant and the nominator.  The applicant initially had said that he lived at Auburn Road, Birrong, but later said that he lived at a townhouse in Larien Crescent, Birrong.  He claimed that he had been confused when giving his initial answer.  The MRT, however, did not accept this explanation.

26                  The MRT referred to the applicant’s evidence that he had worked in a number of places outside Sydney, including Tumut from March 2000 until November 2001 and Brisbane from November 2001 to April 2002.  The MRT noted that the dates he gave the MRT for his employment in Tumut differed from those he had previously given.

27                  The MRT accepted that sub-contractors must go where work is available, but found it difficult to accept that welding work could not be found closer to the applicant’s new spouse.  The MRT accepted that the applicant did return to Sydney on some weekends while in Tumut, but not every weekend as he had claimed.  It found that there was no evidence that any contact with the nominator was otherwise than a businesslike contact in relation to her continuing care of the applicant’s children.

Whether the Relationship is Genuine and Continuing (Noting that sub regulation 1.15A(5) provides that living together at the same address for six months or longer is to be taken to be strong evidence that a relationship is genuine and continuing)

28                  Despite documents showing that the applicant and nominator had the same address, the MRT was not satisfied that they actually resided at the same address.  The MRT found that there was little evidence that the applicant had actually been at the addresses which documentation suggested had been rented in their joint names.  According to the MRT:

“[s]ome of these documents could have just as easily been in joint names with [the applicant’s] children residing at the premises and [the applicant] being responsible for payment of the bills.”

Other Matters

29                  The MRT found that the oral evidence given by the applicant and nominator was inconsistent with evidence previously provided in documents.  Similarly, statutory declarations were inconsistent with evidence given in the application.  Some of the documents provided were of little use, for example because they were incomplete.

30                  The MRT concluded as follows:

“[67]  The [MRT] is not satisfied that the …applicant and the nominator have been living in a spousal relationship.  The circumstances of the relationship point more to an agreement that [the nominator] would supervise his children and receive money to assist with this and possibly in payment of this supervision.

[68]  There is no evidence from [the applicant’s] children that they recognised the nominator as their stepmother or as the wife of their father.  Indeed, there is no evidence from [the applicant’s] children at all even though one is 20 and another is 18 and supposedly lived with [the nominator] in Australia for the last three years.

[69]  The [MRT] makes the following findings:

·        The…applicant was not in a spousal relationship with the nominator at the time of the visa application, and is not in a spousal relationship with the nominator at the time of decision; and

·        As the…applicant is not the spouse of the nominator, the application of the secondary applicants also fail.”

the applicant’s submissions

31                  The applicant made a number of submissions.  As I understood them, they were that the MRT had failed to

• address all criteria relevant to the grant of an EE Visa;
• take into account a document prepared by the delegate prior to reaching her decision;
• assess properly the applicant’s case by reference to the criteria in reg 1.15A(1A) or (3); and
• comply with the requirements of s 359A of the Migration Act.

reasoning

32                  The first submission assumed that the MRT is under an obligation to make findings in relation to all criteria that an applicant must satisfy in order to be granted an EE visa.  This assumption is incorrect.  The MRT found that the applicant failed to satisfy two essential criteria, namely those specified in Migration Regulations, Sched 2, cll 820.211(2)(a) and 820.221(1)(a).  Having reached that conclusion, it was not required to consider whether or not the applicant satisfied other criteria that also had to be met if he was to be granted an EE visa.

33                  The second submission was that the MRT was bound to consider an internal minute prepared by the delegate who refused the application for an EE Visa.  On one reading of the minute, it indicates that the delegate may have been prepared to take a favourable view of the application if certain documents were produced by the applicant or nominator.  Since, however, the documents were not produced, the delegate was ultimately not satisfied that the applicant was the spouse of the nominator.

34                  Once the application to review the delegate’s decision came before the MRT, it was obliged to review the decision: Migration Act, s 348(1).  For the purposes of the review, the MRT could exercise all the powers and discretions conferred by the Migration Act on the delegate: s 349(1).  It had power, inter alia, to affirm, vary or set aside the decision and, in the last case, to substitute a new decision: s 349(2).  Even if the delegate had made a factual finding favourable to the applicant (which she had not), the MRT was required to reconsider the factual material before it and to make its own findings.  The MRT was not bound to take into account findings made by the delegate, much less observations merely recorded in an internal minute.

35                  The applicant’s third submission essentially invited the Court to engage in a review of the merits of the MRT’s fact finding.  That is not the role of the Court on an application for judicial review.  Disagreement with the factual findings of the MRT does not demonstrate that it committed jurisdictional error.

36                  The applicant’s counsel did submit that the MRT failed to apply the criteria in reg 1.15A(1) correctly because (so he argued) it did not refer specifically to the terms of reg 1.15A(1A)(b).  It is true that the MRT’s reasons do not quote in full the terms of reg 1.15A(1A)(b).  Several of the headings adopted by the MRT, in its reasons, however, follow precisely the language of reg 1.15A(1A)(b).  Plainly the MRT was aware of the statutory criteria and applied these criteria to the facts.  Reading the reasons as a whole, it is clear that the MRT was not satisfied of the matters in reg 1.15A(1A)(b) and, for that reason, affirmed the delegate’s decision.

37                  The applicant’s final submission invoked s 359A of the Migration Act. It relevantly provides as follows:

“(1)     …[T]he Tribunal must:

(a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)    invite the applicant to comment on it.

…

(4)       This section does not apply to information:

            …

            (b)  that the applicant gave for the purpose of the application.”

38                  The applicant’s counsel submitted that the MRT had taken into account a copy of a residential lease that it had obtained from a third party, namely the applicant’s landlord.  This document, so he argued, should have been given to the applicant pursuant to s 359A(1) of the Migration Act as information that would have been part of the reason for affirming the decision under review.  In fact, as appears from the documents before the MRT, the copy residential lease was provided to the MRT by the applicant’s agent on his behalf.  The exclusion in s 359A(4)(b) therefore applies.

39                  The applicant’s counsel also referred to the MRT’s expressed concern in its reasons that the applicant and nominator may not have been living together.  He contended that this concern reflected information obtained by the MRT from a third party.  There is, however, nothing in the MRT’s reasons or in the material before it that provides any support for this contention.  The MRT was merely recording its concerns on a factual question central to the applicant’s case on which both the applicant and nominator had given evidence.  There was simply no “information” to enliven the operation of s 359A(1) of the Migration Act.

40                  The applicant’s counsel also submitted that the MRT was obliged by s 359A(1) of the Migration Act to give the applicant particulars of its view that the applicant’s failure to adduce evidence from his children might be adverse to his case.  The MRT’s observations on this point merely reflected its assessment of the state of the evidence.  Its views on the adequacy of the evidence did not constitute “information” for the purposes of s 359A(1): see Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352, at 366, per Hill J; Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, at 39-40, per Merkel J.

41                  Even if, contrary to my view, the applicant established that the MRT erred, its decision would have been protected by s 474(1) of the Migration Act, the so-called privative clause.  For example, a contravention by the MRT of the requirements of s 359A(1) of the Migration Act does not attract relief under s 39B(1) of the Judiciary Act.  There is Full Court authority to the effect that s 474(1) of the Migration Act renders a decision of the Refugee Review Tribunal effective notwithstanding a breach of s 424A(1) which is the equivalent to s 359A(1): SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411, at [23], per curiam; NACL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 387, at [18]-[21], per curiam.  Similarly, if (contrary to my view) the MRT misconstrued reg 1.15A(1) or (3), the error would not establish that the MRT had failed to make a bona fide attempt to exercise the power conferred on it or had otherwise failed to satisfy the so-called “Hickman” conditions: see NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  Accordingly, any misinterpretation of reg 1.15A would not result in the MRT’s decision being held invalid or being quashed.

conclusion

42                  The application must be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              20 December 2002