FEDERAL COURT OF AUSTRALIA

Gherga v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 351

MIGRATION – visas – refusal to grant partner visa – decision made in excess of jurisdiction - application of Migration Regulations 1994 (Cth), Reg 1.15A in determining whether there is a genuine ‘married relationship’ – whether applicants denied natural justice because failure of Migration Review Tribunal to respond to enquiry as to whether available witnesses would be needed – breach of procedural fairness amounting to jurisdictional error that would deny protection of s474 of the Migration Act 1958 (Cth) – whether denial of procedural fairness deprived applicants of the possibility of a successful outcome – failure to consider a topic mandated by the Regulations

Statutes

Migration Act 1958 (Cth) ss 474, 362

Migration Regulations, 1994 (Cth) Sch 2, par 309;  Reg 1.15A(1A), (3), (3)(c), (3)(c)(ii)

Cases

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 Referred to

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Referred to

Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290 Referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Applied

Re Phillip Ruddock in his capacity as Minister for Immigration and Multicultural Affairs;  Ex parte Applicant S154/2002 [2003] HCA 60 Discussed

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Applied

CORNELIU GHERGA and ELENA-LAURA GHERGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

Q94 of 2003

KIEFEL J

BRISBANE

29 MARCH 2004

THE COURT ORDERS THAT:

1.         The decision of the Migration Review Tribunal of 21 May 2003 be set aside.

2.         The matter be remitted to the Tribunal, differently constituted, for determination according to law.

3.         The Minister pay the applicants’ costs of the proceedings including any reserved costs.

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

REASONS FOR JUDGMENT

1                     The male applicant, Mr Corneliu Gherga, is an Australian citizen. The primary visa applicant is his wife, a Romanian national.  Her three children are secondary visa applicants.  On 7 August 2001 the Minister’s delegate refused to grant a Partner (Provisional) (Class UF) visa under the Migration Act 1958 (Cth).  At issue is the review of that decision conducted by the Migration Review Tribunal.

2                     A key criterion for the grant of the visa in question is that the primary visa applicant is the spouse of an Australian citizen:  Migration Regulations1994 (Cth) Sch 2, par 309.  The fact of the applicants’ marriage was acknowledged in the Tribunal’s reasons.   Regulation 1.15A provides that, for the purposes of the Regulations, a person is the spouse of another person if the two persons are, relevantly, in a ‘married relationship’, as described in subregulation (1A).  That subregulation provides:

‘(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                     Subregulation (3) provides that, in relation to applications for visas including a Partner (Provisional)(Class UF) visa, in forming an opinion whether two persons are in a married relationship, 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.

(Emphasis added). 

4                     The principal ground relied upon by the applicants is that at least three witnesses upon this issue, Stefan Lukacs, Marius Gherga and Adrian Ivascu, and the wives of two of them, were available to give evidence by telephone from Romania but that their evidence was not taken.  They contend that Mr Gherga’s legal advisor, who was present at the hearing, was misled by the Tribunal as to whether their evidence was necessary.  It is not suggested that the Tribunal intended to mislead.

the tribunal’s reasons

5                     The Tribunal affirmed the delegate’s decision under review.  The Tribunal was not satisfied that Mrs Gherga was the genuine spouse of Mr Gherga.

6                     The applicants met at a family function in Romania in 1992.  They were then brother-in-law and sister-in-law.  They were said to have met again in 1995 and commenced a relationship whilst still married to their former spouses.  They said that when Mr Gherga returned to Australia  they kept in touch secretly through letters and telephone calls.  A third child was born to Mrs Gherga after the commencement of their relationship.  After the dissolution of their former marriages the parties were married in Gataia, Romania on 24 July 2000.

7                     One matter which concerned the Tribunal was that different residential addresses were given for Mrs Gherga on various documents.  On the certificate for the dissolution of her marriage the address she and Mr Gherga were said to share in Romania, at ‘Birzavii Street’, was also given as the address of herself and her former husband.  The applicants told the Tribunal that the certificate contained a mistake.  Her current identification card showed her address at the house at Birzavii Street which Mr Gherga said he owned.  Another address, at Republicii Street, was given on other documents.  She referred to the Birzavii Street address in her application for the visa.  The Tribunal noted that it had called for further evidence and that more information was supplied by the applicant subsequent to the hearing.  The Tribunal listed that material in its reasons.  They included proofs of Mr Gherga’s ownership of the Birzavii Street property with his former wife.  The issue does not appear to have continued to be of concern to the Tribunal and does not appear to have been influential to its decision.  It remains relevant only to explain the concerns expressed by the Tribunal at the hearing as to the sufficiency of evidence on some points and what resulted from those observations.

8                     In addition to Mr and Mrs Gherga’s evidence, the Tribunal summarised some of the evidence given by Mr Paul Gherga (Mr Gherga’s son) and Mrs Vigh.  Mr Paul Gherga was 18 years of age.  He had travelled to Romania for the first time with his father in 2002 and met his relatives.  He had stayed with his father and Mrs Gherga for a few days.  He believed the marriage was genuine but, the Tribunal noted, had not observed the interaction in the shared house for more than about three days.  Mrs Vigh had known Mr Gherga for about 10 years.  She had travelled to Romania in 2002 and had seen the couple together and with each other’s daughters.  She had stayed with them overnight and went out sightseeing with them and for meals.  Mr and Mrs Gherga also stayed with her at her mother’s place in Cluj.

9                     The Tribunal did not list all of the two witnesses’ evidence.  Mr Paul Gherga had answered a question as to whether the marriage made his father happy and a further series of questions about what he had observed the couple to do socially, including at the house they shared.  Mrs Vigh gave evidence that she observed the couple to be happy together, enjoy each others company and to love each other.

10                  With respect to the witnesses (other than Mrs Gherga) in Romania, the Tribunal said in its reasons (at 29):

‘…Mr Gherga also provided the telephone numbers of other witnesses in Romania who were available to give evidence about his relationship with the visa applicant.  One of these witnesses, Stefan Lukacs, had already provided a written statement to the Department that he facilitated their meeting and that he had conveyed their phone and written messages to each other.’

11                  The applicants also placed some reliance upon records of telephone calls.  The Tribunal however observed that it was not apparent which calls were made to Mrs Gherga on the accounts.  On the basis of his evidence, that he spoke to her at different telephone numbers about once a month over the past three years, the Tribunal observed that the records showed that they had spoken for about 15 to 20 minutes on each occasion.

12                  The Tribunal then turned to the considerations relating to a spousal relationship under Reg 1.15A(3).  As to the financial aspects of the relationship, it noted that a friend of Mr Gherga had said that he had delivered envelopes containing cash to Mrs Gherga.  Mr Gherga did not send money to her through formal channels.  Mrs Gherga lived in the house he, or he and his former wife, owned in Romania, and she worked as a tailor.  The Tribunal noted that the parties had mingled their financial affairs to the extent that they had lived in the house mentioned.  As to the nature of their household, the Tribunal observed the evidence of the parties, Mr Paul Gherga and Mrs Vigh that Mr Gherga had lived in the house when he was in Romania and appears to have accepted that evidence.  This was the only point in the Tribunal’s consideration of the matters listed in the Regulation that it considered the evidence of these two witnesses.

13                  The Tribunal accepted that Mr and Mrs Gherga lived in the house in which Mr Gherga owned, or owned in part, when he was in Romania.  When they commenced to do so and whether they shared the house with Mrs Gherga’s former husband was not clear from the evidence presented.  With respect to the social aspects of the relationship, the Tribunal referred to Mr Gherga’s trips to Romania.  It referred to photographs taken of the wedding and the wedding celebration, at which there were not many guests, and of a wedding anniversary.  The Tribunal did not consider the photographs to provide conclusive evidence that the parties presented themselves socially as husband and wife.  It considered that as they were already related one might expect them to be present at functions without them being married to each other.  The Tribunal did not refer to the evidence of Mr Paul Gherga, Mrs Vigh or the statement of Mr Lukacs.  The evidence of the other witnesses who were able to give evidence on this topic was not available to the Tribunal for its consideration because it had not taken their evidence at the hearing.  

14                  The evidence of the telephone records was not considered to be conclusive evidence of contact between the parties nor relevant to the question of the nature of their commitment to each other.  After observing that Mr Gherga had travelled to Romania several times and stayed for lengthy periods, the Tribunal went on (at 44):

‘Witnesses say that he did, as claimed, live in the same house as the visa applicants during these visits.  However, as he has owned the house since before he married the primary visa applicant, his living there when in Romania is not a new circumstance necessarily related to the marriage.’

15                  The Tribunal did not find the living arrangements in Romania to be conclusive of their commitment to the relationship.

16                  The Tribunal noted that Mr Gherga has other family in Romania and therefore other reasons to visit there.  Whilst accepting that it was possible that they were telling the truth it did not find it to be established that there was a mutual commitment to a shared life as husband and wife to the exclusion of all others.  It could find little evidence of that or as to the question whether the relationship was genuine and continuing.  It observed that whilst they lived together when Mr Gherga was in Romania, the Tribunal was not convinced that they lived as husband and wife.

17                  The Tribunal concluded (at 49):

‘While living together over a long period is normally strong evidence that a married relationship is genuine, on balance and taking the considerations set out in regulation 1.15A into account, the Tribunal is not satisfied that the primary visa applicant was the genuine spouse of the sponsor and review applicant, Mr Gherga, at the time of the application nor at the time of decision.’

the hearing before the Tribunal

18                  The applicants’ solicitor has given evidence that, in response to a letter from the Tribunal, he sent a list of witnesses to the Tribunal on 19 December 2002.  They included Mrs Gherga, Marius Gherga, Adrian Ivascu, Stefan Lukacs and the wives of the two last-mentioned, Pany Ivascu and Danielle Lukacs.  In following correspondence he advised the case officer, the person assisting the Tribunal member, that the witnesses in Romania would be assembled in a house in the town of Timosoara and in a house in Gataia for the purpose of giving their evidence.  He had a conversation on 6 January 2003 with the case officer concerning the calling of the witnesses.  He was advised that Mrs Gherga would be asked to give her evidence first, then the witnesses present with her would be asked to give their evidence.  The remaining witnesses would be called only if the member was ‘still unsure’.  The solicitor’s note of the conversation does not record what topic this might relate to or whether it was intended to refer to all issues.  He says in his affidavit that the possible uncertainty was said to relate to the wider issue of the genuineness of the marriage.  In cross-examination the solicitor said that the note recorded the impression he had gained from the conversation.  He agreed that what the case officer had said was that whether other callswould be made ‘would depend on whether the Member felt the need for that or not.’

19                  The hearing was conducted in Australia by video link between the Tribunal member in Canberra and Mr Gherga and his legal advisor in Brisbane.  Also present in Brisbane were Mr Paul Gherga and Mrs Vigh. 

20                  At an early point in the proceedings the Tribunal raised with Mr Gherga the confusion with respect to his address and that of Mrs Gherga in Romania.  Some discussions ensued about that and other matters.  The evidence of Mrs Vigh and Mr Paul Gherga was taken.  The Tribunal then contacted Mrs Gherga in Romania by telephone. At the conclusion of her evidence the Tribunal disconnected the telephone link although the interpreter remained available.  It would appear that there was too much noise emanating from the open line.  The Tribunal then observed to Mr Gherga’s legal advisor that he had requested, in his letter of 6 January 2003, that Mr and Mrs Lukacs also be spoken to but that it was not apparent who they were.  The solicitor advised that they were friends of the applicants and that it was desired that they give evidence as to the genuineness of the relationship between the applicants.  They and Mr and Mrs Ivascu were at the same location as Mrs Gherga.  The male applicant’s brother Marius was at another location and he was to ‘give his views and to confirm some of the other matters that are present in the case’.  The solicitor then went on to refer to his conversation with the case officer the week before.  He said:

‘…When I was speaking to the case officer last week I think it was she said the making of the other calls would depend on whether the Member felt the need for that or not which I translated to mean whether after the evidence of Mrs Gherga the satisfaction or otherwise the genuineness had been reached.  The Member would ring the further witnesses if still unsatisfied that was the basis I left it with the case officer last week.  If you feel not satisfied then we would ask that you speak the remaining witnesses. 

Member:         Well as I think I have indicated I am worried about this business with the addresses, you might be able to clarify that some other way.

            Bruce Williams:           I think I can if you look at folio 30 which I think you have just been looking at which is the Romanian statement.  On the back of that is ??? certificate.  Mr Gherga tells me that in Romania when you get something notarised the notary takes your address from your ID card.

            Member:          Yes well that makes sense but on the other hand it seems very inconsistent that they didn’t do a similar thing at the divorce proceedings.

            Bruce Williams:           May be so I am not sure about that I noticed that the next folio 29 is a statement by Mr Gherga also in Romanian you will notice that the translation of that which is folio 27 the.

            Member:          It has got the Australian address.

            Bruce Williams:           The notary identifies him by reference to passport, so they use it as a method of reference, I believe.

            Member:          So Mr Gherga you would not have a Romania ID any longer would that be right or do you have one?

            Mr Gherga:     I have the remaining passport but that doesn’t mean I would recognise myself if I am going somewhere with a Romanian passport.  I know many cities as the living in Australia so I have two passports Australian and Romanian.

            Bruce Williams:           Folio 22 also might help through light on that that is a statement by the ex-husband and you will see his address is 64 Republic Street and this is a consent to the children been included you will notice also there the mothers address shown as 64 Republic Street, it wasn’t but that is what shown in the document and if we go to the immigration application form question 22.

            Member:          Yes I know what you are going to say there I did check that.  Alright if you can possible clarify the business with the address by at least producing some further evidence it does belong to your client I would like to be able to see that so I hope we can find some other evidence of that.’

21                  The balance of the hearing was brief.  The Tribunal member asked Mr Gherga some questions as to a possible inconsistency between his evidence and Mrs Gherga’s, as to whether she worked.  Mr Gherga was asked why he chose Mrs Gherga as his wife, how they intended to manage their household between them and whether they go out together.  At the conclusion of the hearing the Tribunal member discussed the time within which the male applicant was to provide the additional information.  I take this to refer to the topic of the addresses and his ownership of the house at Birzavii Street.  The Tribunal allowed eight weeks for those documents and some other material.

THE GROUNDS OF THE APPLICATION

22                  The Tribunal’s decision is alleged to have been made in excess of jurisdiction.  The applicants contend that they were denied natural justice because the Tribunal failed to alert them to the fact that the matters upon which the other available witnesses would speak remained as live issues and because the Tribunal impliedly declined to hear evidence from them on a topic mandated by the Regulations.  It is further contended that the review was not a ‘proper, genuine and realistic review’.  It is contended that the Tribunal did not apply Regulation 1.15A in deciding the matter.  Other aspects of the review dealt with in the written argument challenge particular factual findings.  It is not necessary to set them out.

CONSIDERATION OF THE APPLICATION

23                  Contrary to the submissions for the Minister, a breach of procedural fairness has been held to amount to jurisdictional error such as would deny the protection of s 474 of the Migration Act to what is there described as a ‘privative clause decision’:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 494, 508;  (2003) 195 ALR 24 at [38], [83];  Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.  See also Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290.  In Aala the Tribunal had caused the applicant to mistakenly believe that it had read some material which it had not, and thereby affected the way in which he conducted his case.  In Re Phillip Ruddock in his capacity as Minister for Immigration and Multicultural Affairs;  Ex parte Applicant S154/2002 [2003] HCA 60, the Court also considered the question whether an applicant had been misled, although it was there held that what had had that potential in the Tribunal proceedings was negated by the discussion which ensued.  The Tribunal Member was evidently sceptical about the particular claim the applicant had made.  The Minister here also contends that it ought to have been apparent to Mr Gherga’s solicitor that the Tribunal had not accepted the marriage to be genuine for it continued to ask questions of Mr Gherga relevant to that wider question. 

24                  The applicants do not rely upon some statutory obligation, on the part of the Tribunal, to call the witnesses notified by a party.  Section 362 of the Migration Act requires the Tribunal to have regard to the wishes of an applicant with respect to the calling of witnesses, but it is not required to obtain that evidence.  It may be said that the Tribunal had some regard, although cursory, to Mr Gherga’s list.  The applicants’ case relies upon the Tribunal’s conduct in not replying to the enquiry whether the other witnesses were necessary, and they rely upon the Tribunal’s failure to consider the evidence as to the social aspects of the relationship as required by Reg 1.15A(3)(c).  Whether there is some tension between the particular requirement in subparagraph (ii) to consider the opinions of friends and acquaintances about the nature of the relationship, and the Tribunal’s discretion not to hear a witness is not an issue in these proceedings.

25                  It was submitted for the Minister that Mr Gherga’s solicitor could not reasonably have believed that the Tribunal had accepted the marriage to be genuine.  It proceeded to ask some questions of Mr Gherga which were clearly relevant to its consideration of some aspects of that question.  I consider the submission to be correct.  The question of the marriage being a genuine and continuing one was the ultimate issue and was dependant upon a consideration of all of the topics listed in Reg 1.15A(3) and perhaps more.  Although the Tribunal did not ask many questions of Mr Gherga after the exchange with his solicitor, those that they did ask were relevant to the wider question.  Further, the Tribunal was obviously not satisfied about the address where they were said to have cohabited and clearly had some doubts that Mrs Gherga might be residing at her former matrimonial home.

26                  It is not however the wider issue about which Mr Gherga’s solicitor was misled and to which I take his evidence to refer.  The narrower issue about which the solicitor may have been misled was the social aspects of the marriage viewed from the perspective of friends and acquaintances.  He explained the nature of the additional witnesses’ evidence as relevant to that issue to the Tribunal.

27                  A conclusion that the solicitor was in fact misled about whether there continued to be a need to call the witnesses, or at least press the Tribunal to do so, seems to me inescapable.  The Tribunal had heard the evidence of Mr Paul Gherga and Mrs Vigh on this topic.  It might have accepted that evidence in a way favourable to the applicants and such as would negate the need for further evidence in the same vein.  The solicitor indicated the nature of the evidence to the Tribunal and, in effect, enquired whether the witnesses would be necessary having regard to the Tribunal’s views on that aspect of the matter and what he had been told by the case officer.  Why the Tribunal did not respond is not apparent.  It may be that its focus was on the topic of addresses.  The hearing appears to have been conducted swiftly.  In any event by failing to respond to the enquiry the Tribunal effectively misled the solicitor, in my view.

28                  In order to obtain relief on the ground of a denial of procedural fairness it is sufficient that the denial deprived the applicants of the possibility of a successful outcome:  Aala at 88-89 [4], 91-92 [17], 116-117 [80]-[81], 122 [104], 130-131 [131], 153-154 [211].  On one view it might be said that the additional evidence would not have made any difference to the Tribunal’s reasoning, because it simply failed to consider the topic in Reg 1.15A(3)(c)(ii) at all.  That is the applicant’s alternative argument.  Nevertheless, I do not think it could be said that there was no possibility that the evidence may have made a difference.  The Tribunal might have been made more alert to the need for consideration of the evidence because there was a larger body of it.

29                  There is nothing to indicate that the Tribunal did consider the topic.  It limited its identification of the evidence of Mr Paul Gherga and Mrs Vigh to the question of the cohabitation of Mr and Mrs Gherga at a particular address.  There is nothing to suggest that it gave any consideration to the balance of their evidence nor to that aspect of the social aspects of the relationship mandated by that part of the Regulation.  Its finding as to the social aspects of the relationship was made on the basis of an insufficiency of evidence and appears to have been limited to a consideration of the extent of this cohabitation and the photographs of their marriage ceremony and their following anniversary.  Indeed it may be concluded that the matters listed in Reg 1.15A(3)(c)(i) to (iii) inclusive were not addressed by the Tribunal.  The Tribunal’s failure to do that which the Statute required of it, which is to say a failure to discharge its imperative duties, involved jurisdictional error on its part.  It is not therefore a decision to which the privative clause provision applies:  Plaintiff S157/2002 at 506 [76].

30                  It is not necessary for me to deal with the outstanding ground which relies upon there being no ‘proper, genuine and realistic consideration upon the merits’:  Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292;  Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483.

31                  The applicants have shown two bases for relief.   There will be orders setting aside the decision and remitting the matter to the Tribunal, differently constituted, for determination according to law and an order that the Minister pay the applicants’ costs.

Associate:

Dated:              29 March 2004