FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1103

SHI XIU ZHANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N 127 of 2004

WHITLAM J

25 AUGUST 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 in respect of the decision of the Migration Review Tribunal (‘the Tribunal’) made on 14 January 2004 refusing to grant the applicant a Partner (Temporary) (Class UK) visa.

2                     The applicant is a Chinese national.  She lodged her visa application on 15 July 2002, claiming to have lived in a de facto relationship with her nominator since 28 June 2001.  The applicant and the nominator married on 2 November 2002.  The respondent’s delegate did not accept that a de facto relationship existed 12 months prior to lodgement of the visa application, as required by the applicable criterion, and refused the application on 29 November 2002.

3                     Upon review the Tribunal wrote to the applicant on 11 September 2003 inviting her to provide further information about her relationship with the nominator and attaching a list of examples of the type of evidence she could provide.  The list was prefaced by the following statement:

‘In assessing your case, the Tribunal must have regard to regulation 1.15A of the Migration Regulations.  Regulation 1.15A provides that the Tribunal must have regard to all the circumstances of your relationship, including, in particular:

·        The financial aspects of the relationship, including: any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one party to the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses.

·        The nature of the household, including: any joint responsibility for care and support of children, if any; the parties’ living arrangements; and any sharing of responsibility for housework.

·        The social aspects of the relationship, including: whether the persons represent themselves to other people as being married or in a de facto relationship with each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

·        The nature of the persons’ commitment to each other, including: the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.’

The applicant’s migration agent replied on 30 September 2003 forwarding, inter alia, a statement from the nominator’s mother.

4                     On 21 October 2003 the Tribunal again wrote to the applicant and, pursuant to s 359 of the Migration Act 1958 (‘the Act’), invited her to give additional information, including ‘[d]ocumentation to substantiate your claim that you and your partner were in a genuine spousal relationship from 28 June 2001 to 15 July 2002.’  On 8 December 2003 the Tribunal held a hearing at which the applicant and the nominator’s sister gave evidence.

5                     The Tribunal prepared a statement under s 368 of the Act comprising just over nine pages and divided into 59 paragraphs.  It traced the history of the visa application, noting that three statutory declarations from witnesses were attached to the application when it was lodged on 15 July 2002.  (Each of these witnesses declared that the applicant and the nominator had been living together since June 2001, but the Tribunal did not note that fact.)  The Tribunal also said:

‘29.      Regulation 1.15A contains the test for determining whether one person is the “spouse” of another person, whether in a married or a de facto relationship.  In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that subregulation 1.15A(3) set out mandatory considerations.  Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3).  These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons’ commitment to each other.’  (Emphasis supplied.)

The Tribunal went on to refer to evidence given at the hearing, where the applicant said that she met the nominator in June 2001 and ‘moved in together a few days later’ and where the nominator’s sister said that the applicant had lived with her brother for two and a half years in a flat at the back of their mother’s house where she also lived.  However, the Tribunal noted that the claim that the applicant and the nominator began to reside with his mother and sister in June 2001 was contradicted by the statement in the visa application form that the nominator had no contact with his sister.  The Tribunal did not accept that the applicant and the nominator ‘were in a de facto relationship by 14 July 2001 (12 months before the visa application)’ and found that the relationship did not commence until February 2002.  The Tribunal was not satisfied that there were circumstances justifying the waiver of the 12 months pre-application requirement, and accordingly it affirmed the delegate’s decision.

6                     Counsel for the applicant submitted that the Tribunal fell into jurisdictional error by forming an opinion about the claimed de facto relationship without having regard to the following factors set out in subreg. 1.15A(3) of the Migration Regulations 1994:

‘(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;’

He contended that the Tribunal made no findings on the social aspect of the relationship and referred ‘only in passing’ to the statements from friends and acquaintances on that subject.  I accept that, if the Tribunal overlooked the factors relied on, that would betoken jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 per Gummow and Hayne JJ at 1001 [51].  However, on a fair reading of the Tribunal’s reasons and in the light of the specific content of its correspondence with the applicant, I am unable to reach that conclusion.  On the contrary, I think it is clear that the Tribunal had all the factors in subreg 1.15A(3) firmly in mind when forming its opinion.  Having disbelieved the evidence of the four persons who claimed to have lived at the same address since June 2001, there was no reason why the Tribunal should specifically reject the statements provided much earlier by persons who did not claim to live there.  The Tribunal’s decision is thus a privative clause decision.

7                     The application will be dismissed with costs.

Associate:

Dated:              25 August 2004