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MIGRATION - Review of Migration Review Tribunal decision - refusal of a partner (Provisional) (Class UF) visa - no jurisdictional error - application dismissed.

Sharma v Minister for Immigration [2004] FMCA 887 (6 December 2004)

Sharma v Minister for Immigration [2004] FMCA 887 (6 December 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION
[2004] FMCA 887




MIGRATION - Review of Migration Review Tribunal decision - refusal of a partner (Provisional) (Class UF) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.29(1), 31(1), 42(1), 45(1), 474

Judiciary Act 1903 (Cth), s.39B

Migration Regulations 1994, 1.15, 1.15A, 1.15A(3), 1.15A(3)(d)

Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116

Kioa v West (1985) 159 CLR 550

Annetts v McCann 170 CLR 596

Mahon v Air New Zealand [1984] A.C. 808

Greenwood v Merkel [2004] NSWSC 43

Lam v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FMCA 121

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992

Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Applicant:
AMBIKA PRASAD SHARMA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1429 of 2004




Delivered on:


6 December 2004




Delivered at:


Sydney




Hearing date:


28 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Counsel for the Applicant:


Mr Radha Sair




Solicitors for the Applicant:


Harish Prasad & Associates




Counsel for the Respondent:


Ms R M Henderson




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1429 of 2004

AMBIKA PRASAD SHARMA



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Migration Review Tribunal ("the Tribunal") handed down on 21 April 2004, affirming a decision of a delegate of the respondent ("the delegate") made on 10 June 2004 to refuse to grant a partner (provisional) (Class UF) visa.

Background

2. The applicant was born in Fiji on 29 February 1964. He first arrived in Australia in August 1990 for medical treatment (Court Book pp.3, 266) ("CB"). From May 1995 to date the applicant has worked as a process worker at David Morgan Enterprises, a sheltered workshop (CB pp.4, 304.25). The applicant became an Australian citizen on 25 March 1998 (CB p.36) and was married for the first time on 17 June 1998. He was divorced on 19 September 2001 (CB pp.15, 34).

3. On 28 January 2000 the applicant departed Australia to visit Fiji. He met the visa applicant on 16 February 2000 (CB p.16) and the couple commenced a relationship two days later (CB p.16). The applicant returned to Australia on 25 May 2000 (CB p.46).

4. The visa applicant was born in Fiji on 14 July 1979. She was married for the first time on 17 June 1998 (CB p.11) and was divorced on

25 April 2000 (CB p.30). On 21 March 2001 the visa applicant applied for a visitor's visa. She stated in her application that she had never been married and that the purpose of her visit was to see a named individual whom she described as "cousin uncle". That person has subsequently been identified as the applicant's brother. The visitor's visa was refused because the visa applicant had provided misleading information (CB p.53).

5. On 5 January 2002 the applicant signed a Sponsorship for the partner migration to Australia application (CB p.7). On 7 January 2002, although not married at the time, the applicant made a statutory declaration in which he asserted his marriage was genuine and continuing (CB p.26). In another statutory declaration made on the same day, the applicant indicated that he had kept in contact with the visa applicant after he returned to Australia on 25 May 2000 by telephone, cards and letters (CB p.33).

6. On 16 January 2002 the applicant departed Australia (CB p.46) and married the visa applicant at Nadi Hospital, Fiji on 18 January 2002 (CB p.29). A traditional ceremony was conducted on 20 January 2002 (CB pp.50, 273). The visa applicant signed an application for migration to Australia by a partner on 23 January 2002 (CB p.24). The applicant returned to Australia on 25 January 2002 (CB p.46).

7. The visa applicant was interviewed by an officer of the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") on 14 May 2002. The interviewing officer recommended that her application be refused, citing a lack of evidence of regular contact since 2000, the misleading information in the visitor's visa application and the age difference between the applicant and the visa applicant (CB p.53). The delegate refused the application on 10 June 2002. In the reasons for the decision, the delegate emphasised the lack of evidence of continuing contact between the parties and the expressed doubt as to whether a traditional ceremony had in fact taken place. The delegate also referred to the misleading information in the visitor's visa application and to the age difference between the parties (CB p.55).

8. The applicant lodged an application for review with the Tribunal on

28 June 2002 (CB p.59). The Tribunal invited the applicant to supply evidence of his relationship with the visa applicant, giving detailed suggestions of the type of evidence that might be furnished (CB p.67). The applicant responded through his migration agent under cover of a letter dated 20 May 2003, enclosing submissions and documentary material (CB p.75). On 1 September 2003 the Tribunal invited comments on the misleading information supplied by the visa applicant in her visitor's visa application (CB p.291). The migration agent responded with an explanation in a letter dated 22 September 2003 (CB p.293).

9. The Tribunal convened a hearing on 17 November 2003 (CB p.303) at which the applicant, the visa applicant and the applicant's mother gave oral evidence. On 21 April 2004 the Tribunal made a decision in which it affirmed the decision under review (CB p.229).

Legislation and regulations

10. The relevant provisions of the Migration Act 1958 (Cth) are as follows:

Section 29(1)

Subject to this Act, the Minister may grant a non citizen permission, to be known as a visa, to do either or both of the following:

(a) Travel to and enter Australia;

(b) Remain in Australia.

Section 31(1)

There are to be prescribed classes of visas.

(3) The Regulations may prescribe criteria for a visa or visas of a specified class ...

(4) The Regulations may describe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia or both.

Section 42(1)

...a non citizen must not travel to Australia without a visa that is in effect.

Section 45(1)

Subject to this Act and the Regulations, a non citizen who wants a visa must apply for a visa of a particular class.

11. The relevant provisions of the Migration Regulations 1994 ("the Regulations") which apply to this matter are:

Sub-class 309 - Spouse (Provisional)

In this part intended spouse means the person referred to in sub-paragraphs 309.21(3)(a)(i),(ii),(iii),(iv)

Sub-class 309.21(1) - Criteria to be satisfied at a time of application

1. The applicant meets the requirements of sub-class (2) or (3).

2. The applicant meets the requirements of the sub-class if the applicant is a spouse of:

(a) An Australian citizen; or

(b) An Australian permanent citizen; or

(c) An eligible New Zealand citizen.

3. The applicant meets the requirements of the sub-class if:

(a) The applicant intends to marry:

(i) An Australian citizen; or

(ii) An Australian permanent resident; or

(iii) An eligible New Zealand citizen; and

(b) The intended marriage will, if it takes place, be a valid marriage for the purpose of s.12 of the Act

Sub-class 309.22(1)

The applicant continues to satisfy the criteria in clause 309.211:

Regulation 1.15A

(1) For the purpose of these Regulations a person is a spouse of another person if the second person(s) are:

(a) in a married relationship, as described in Regulations 1(A); or

(b) in a de facto relationship, as described in Regulations 2

The Tribunal's findings and reasons

12. The findings of the Tribunal are based on material lodged by the applicant, Departmental files and evidence obtained at the hearing. At the time of the application the visa applicant was sponsored by the applicant, who is an Australian citizen. Both parties had previously been married and divorced. A decree nisi in both cases had become absolute and the Tribunal accepted that these earlier relationships were no barrier to the legal marriage of the parties. The Tribunal accepted the evidence of the marriage certificate on file that the visa applicant and the applicant were married to each other in Fiji on 18 January 2002. The Tribunal's finding was that at the time of the application the visa applicant and the applicant were married under a marriage that was recognised as valid for the purposes of the Act. The Tribunal had to consider whether the visa applicant was the spouse of the applicant at the time of the application and continued to be the spouse of the applicant at the time of the decision.

13. The Tribunal referred to the decision of Nassouh v Minister for Immigration & Multicultural Affairs where the Federal Court considered the provisions in relation to Reg. 1.15A and the mandatory considerations set out in sub-reg. 1.15A(3). Accordingly, when forming an opinion as to whether a spouse relationship exists, the Tribunal must take into account all the circumstances of the relationship including considerations set out in sub-reg. 1.15A(3) relating to the nature of the household, the financial and social aspects of the relationship and the nature of the persons' commitment to each other (CB p.307.48).

14. The Tribunal noted:

"As the parties at present live in different countries, it is not reasonable to expect a high degree of evidence of joint financial affairs or the maintenance of a household. There is however very little evidence of such aspects of the relationship." (CB p.307.49)

15. The Tribunal referred to a number of issues that led them to doubt the genuineness of the relationship:

a) The relatively short time that the couple had known each other prior to the wedding, clearly the evidence was that the applicant had only met the visa applicant on two occasions prior to the wedding.

b) The relatively short time that the couple lived together after the wedding, being two weeks in January 2002 immediately after the wedding and four weeks in June 2003.

c) The ability of the couple to communicate with each other, taking into account the applicant has to rely on his brother to write correspondence to the visa applicant and read her replies due to the applicant's inability to read and write.

d) Little evidence of any social aspects of a relationship despite some statutory declarations prepared by relatives.

e) The absence of any photographs of the wedding or of the couple at any other time since that event. The photographs that were presented almost eighteen months after the wedding did not appear to represent such an occasion.

f) The visa applicant's lack of knowledge that the applicant was dependent on certain epileptic drugs that were taken daily.

g) The lack of any supporting documentation evidencing that the arrangement was a genuine relationship.

Application for review of the Tribunal's decision

16. On 14 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:

1. The respondent made a jurisdictional error in that the respondent (Migration Review Tribunal) misinterpreted and misapplied the relevant law.


Particulars
i) The Tribunal accepted that the applicant and his wife were legally married. The Tribunal found that the applicant was not a spouse as required because the Tribunal found that the applicant and his wife did not "have a mutual commitment to a shared life as husband and wife to the exclusion of all others".

ii) The Tribunal misinterpreted and misapplied the law in regard to "mutual commitment". The Tribunal's decision was based on its misinterpretation that providing or agreeing to provide care and assistance to spouse weighed against the mutual commitment spouses are required to have to a shared life as husband and wife.

2. The respondent made a jurisdictional error in that the respondent ("the Tribunal") misinterpreted and misapplied the relevant law.


Particulars
i) The Tribunal misinterpreted and misapplied the law with regard to the term "spouse" when the Tribunal found that the Tribunal was "not satisfied that the parties have sufficient knowledge of each other to meet the definition of spouse".

3. The respondent made a jurisdictional error in that the respondent ("the Tribunal") misinterpreted and misapplied the relevant law.


Particulars
i) The Tribunal said that the wife "initially refused to acknowledge that sponsor had any special communication or other needs". This is incorrect.

ii) The Tribunal also said that "(w)hile the Tribunal does not doubt the willingness of the applicant to tackle this situation at least in the shorter term, the evidence is that this came about due to her lack of options as a divorced woman in poor circumstances".

iii) The Tribunal misinterpreted and misapplied the law and wrongly considered an irrelevant issue in considering how a genuine relationship may have come about.

iv) The Tribunal misinterpreted and misapplied the law and wrongly considered an irrelevant issue in forecasting the duration, in the Tribunal's view, of how long the genuine relationship would last.

4. The Tribunal made an error being a jurisdiction error in that it denied the applicant natural justice and procedural fairness.


Particulars
i) The Tribunal noted that the husband had said that he takes (or used to take) medication. The Tribunal noted that the wife said that she was not aware of her husband taking any medication.

ii) The Tribunal failed to put this apparent discrepancy to either the husband or the wife, to clarify if there was in fact a discrepancy and to allow the husband and/or the wife the opportunity to explain any apparent discrepancy.

5. The Tribunal denied the applicant natural justice and procedural fairness


Particulars
i) The Tribunal was aware, was put on notice, of the special requirements of the applicant (the husband).

ii) The Tribunal failed to take these special requirements into consideration and in dealing with the responses provided by the applicant.

The law

17. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

18. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v State of South Australia ("Craig") per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

19. Mr R Nair of Counsel, appeared for the applicant, and filed written submissions prior to the hearing. In those submissions three major contentions were made:

* Jurisdictional error from failure to construe and apply the legislation and from the application of criteria not specified by the legislation.

* Jurisdictional error - denial of natural justice and procedural fairness.

* Jurisdictional error - denial of natural justice and procedural fairness in the special circumstances of the applicant.

20. Counsel for the applicant submitted that the Tribunal's consideration of the criteria in sub-reg. 1.15A(3)(d) is noted as follows:

"In terms of the commitment of the parties, ... the Tribunal is not satisfied that her participation in this relationship is that of a spouse, rather than someone agreeing to provide care and assistance to the adult child of an aging couple who are anxious to provide for their son in the future. It is admitted there is nothing in regulation 1.15A(3)(d) to suggest that care and assistance by one spouse to the other detracts from their mutual commitment and is a criteria that should be assessed as such (after detracting from the mutual commitment) by the Tribunal. Neither does it follow that as a matter of logic that care and assistance by one spouse to the other detracts from the mutual commitment; the contrary is a common experience." (CB p.310 [60]-[61])

21. It was submitted that with regard to the commitment of the parties, the Tribunal stated:

"... the Tribunal is not satisfied that the parties have sufficient knowledge of each other to meet the definition of the term `spouse'". (CB p.310 [60])

22. The applicant's submission was that there was nothing in the Regulations that specified detailed knowledge of a particular circumstance of the other party was a criterion in the definition of `spouse'. It was also submitted that, as a matter of logic, lack of such detailed knowledge did not (particularly in the early years of a relationship - where a couple have been unable to spend much time together) detract from a couple's mutual commitment. It was submitted that the contrary was true - as so eloquently proclaimed by the commonplace term "honeymoon period" and noted the Tribunal's comments:

"... the evidence is that this came about due to her lack of other options as a divorced woman in poor circumstances." (CB p.310 [61])

23. It was submitted that there was nothing in the Regulations to suggest that the advantage a party expects to derive from entering into a marital relationship would detract from the genuineness of the marital commitment. The hope of gain of advantage was not specified as a criterion against which the genuineness of commitment was to be assessed. It was contended that, as a matter of logic, hope of gain of advantage did not tell against genuineness of commitment and it was a trite observation that people marry not just for comfort or stability but also make their particular choice of a spouse on the basis of a whole range of other anticipated advantages including wealth, family connections and physical desirability.

24. Counsel for the applicant submitted that in the making of the above observations the Tribunal completely misunderstood and misapplied the legislation. The Regulations specifically provide that in considering "the nature of a person's commitment to each other" a relative factor was "whether the person sees the relationship as a long term one". It was the parties' current view of the durability of their relationship that was relevant. It was submitted that it was not the Tribunal's assessment of durability that was relevant and the Tribunal was not required to "crystal ball gaze"; it should play no part in the Tribunal's determination. The Regulations clearly provide that the relevant criteria was to be satisfied at the time of the decision: see Regulations 820.211(1) and 820.221(1) and the above errors, in regard to the specified criteria for the visa were, individually and jointly, material to the Tribunal's findings that:

"The Tribunal is not satisfied either at the time of the visa application or of decision, that the visa applicant and the review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that having regard to the integer Regulation 1.15A(3), the relationship between them is genuine and continuing."

25. Counsel for the applicant referred me to the authority in Craig per Brennan, Dean, Toohey and McHugh JJ at 179 and in Scargill v Minister for Immigration & Multicultural & Indigenous Affairs per French, von Doussa and Marshall JJ at [34]-[37]. It was submitted that the failure of the Tribunal to correctly construe and apply the criteria prescribed in the Regulations in effect meant that the Tribunal did not consider the criteria at all and,. in assessing against criteria not prescribed, the Tribunal exceeded its power and is jurisdictional error.

26. In respect of the ground of denial of natural justice and procedural fairness, the applicant's Counsel took me to the Tribunal's Reasons for Decision (CB pp.304-306). It was submitted that it was clear that the apparent difference in evidence from the applicant and visa applicant in regard to any medication for epilepsy played a major role and material role in the decision of the Tribunal. In support of this conentention, Counsel for the applicant took me to the authority of Kioa v West per Mason CJ at 584. It was submitted that notwithstanding the visa applicant was not the applicant, her rights, interests, status and legitimate expectations were directly effected by the Tribunal's decision. It was also submitted that the visa applicant should have been accorded natural justice and procedural fairness in that she should have been invited to comment on any apparent discrepancy between her evidence and that of the applicant. Denying the visa applicant natural justice and procedural fairness in turn, was denial of natural justice and procedural fairness to the review applicant.

27. The third ground of the applicant was denial of natural justice and procedural fairness in the special circumstances of the applicant. It was submitted that the Tribunal's findings that the parties have not had sufficient knowledge of each other to meet the definition of the term "spouse" was based to a large extent on the evidence about the epilepsy and related medication. But, it was submitted, that it did not automatically follow as a matter of logic - or common experience which is often to the contrary - that such lack of knowledge tells against genuineness of mutual commitment - the genuineness being the actual issue for the Tribunal. Accordingly, it was submitted that it could not be said that the applicant was aware or should have been aware of the risk that the Tribunal was proposing to make a finding that the parties had insufficient knowledge of each other, which in turn adversely impacted on the issue before the Tribunal of the genuineness of their commitment. The Tribunal was aware that the applicant had a speech impediment and some degree of physical and mental impairment.

28. In written submissions, Counsel for the applicant took me to the rules of natural justice and procedural fairness in Annetts v McCann ("Annetts") where his Honour Toohey J quoted approvingly of Mahon v Air New Zealand ("Mahon") at pp.820-821. It was submitted that in the circumstances the Tribunal should have alerted the applicant to the risk of a finding of insufficient knowledge and it should have invited the applicant to comment.

29. In oral submissions, the applicant's Counsel took me to the decision of Greenwood v Merkel, a recent decision of the NSW Supreme Court, which considers the criteria of marriage and de facto relationships. In the decision of Burchett AJ at [15], his Honour states:

"The particular arrangement pursued by husbands and wives may vary very greatly, and the same is true for de facto partners."

30. The respondent was represented by R M Henderson of Counsel who filed written submissions prior to the hearing. It was submitted in relation to ground 1(ii) of the application, that the finding of whether an applicant satisfied the definition of a "spouse" for the purposes of Reg. 1.15 would have been an error of fact based on the evaluation of evidence and within jurisdiction: Lam v Minister for Immigration & Multicultural & Indigenous Affairs.

31. In respect of care and assistance, Counsel for the respondent submitted the ground 1(ii) contended that the Tribunal misinterpreted the law by treating "providing or agreeing to provide care and assistance to a spouse" as a matter which "weighed against the mutual commitments spouses are required to have to a shared life as husband and wife". It was submitted that the applicant's submissions in this area re-state that proposition, misquoting and misstating the Tribunal's reasoning. I was taken to the Tribunal's "Reasons for Decision" (CB p.310 [61]) which state:

"The Tribunal is not satisfied that [the visa applicant's] participation in this relationship is that of a spouse, rather than someone agreeing to provide care and assistance to the adult child of an ageing couple who are anxious to provide for their son in the future."

32. It was submitted that when the Tribunal's reference to providing care and assistance was read in its context, its meaning was plain: the Tribunal contrasted the role of a spouse with that of a person who can more accurately be described as a carer. It was also submitted that the Tribunal regarded the visa applicant as a person who had agreed to take on the latter role and that the comparison was not a valid one, and did not indicate that the Tribunal saw the provision of care as a matter which militated against the existence of a spousal relationship.

33. In respect of the breadth of the definition of the term "spouse", it was submitted that it was important to note the scope of the Tribunal's enquiry was broad ranging. The definition of "spouse" in sub-reg. 1.15A(3) is an expansive one and the respondent is required to "have regard to all the circumstances of the relationship" including the four matters raised in sub.reg. 1.15A(3)(a) to (3)(d) inclusive: R v Toohey; Ex parte Meneling Station Pty Ltd per Gibbs CJ at 333, citing and approving Mason J in R v Hunt; Ex parte Sean Investments Pty Ltd.

34. It was submitted sub.reg. 1.15A3(a) to 3(d) contained lists of matters that must be addressed, but those lists do not purport to be definitive. The word "including" precedes each of the four lists.

35. In respect of ground 2(i), Counsel for the respondent repeated the submissions made in respect of jurisdictional error raised in submissions in respect of ground 1(ii). Ground 2(i) cited a finding by the Tribunal in that it was not satisfied that the parties had sufficient knowledge of each other to meet the definition "spouse" (CB p.310 [60]). It was submitted that the applicant's submissions in this respect were directed at issues of whether the Regulations required a couple to have "detailed knowledge" about one another. It was submitted that the Tribunal had again been misquoted.

36. The respondent repeated the submissions made in respect of the breadth of definition of "spouse" submitted in ground 1(ii) and that it was open to the Tribunal, when assessing the mutual commitment of the visa applicant and the applicant, to consider what they knew about each other. The applicant had serious health problems and required regular medication - the fact that the visa applicant did not know was a circumstance of the relationship which the Tribunal was entitled to take into account.

37. In respect of grounds 3(ii), (iii) and (iv), Counsel for the respondent repeated the submissions previously made in relation to jurisdictional error. Ground 3(ii) cited a finding made by the Tribunal as follows:

"While the Tribunal does not doubt the willingness of the applicant to tackle this situation at least in the shorter term, the evidence is that this came about due to her lack of other options as a divorced woman in poor circumstances." (CB p.310 [61])

38. It was the applicant's submission that the Tribunal was precluded from considering whether the visa applicant married the applicant in the "hope of gain of advantage". The respondent Counsel submitted that the Tribunal's remarks must be viewed in context. It was contended that the Tribunal concluded in its "Reasons for Decision" the visa applicant had agreed to assume the role of a carer rather than a spouse (CB p.310) and it was therefore relevant and appropriate for the Tribunal to consider why a visa applicant would be willing to make such an arrangement. Further it was submitted that it was self evident that a person's likely reasons for entering into a marriage were matters which had a bearing upon aspects of the definition of the term "spouse" namely: the genuineness of the relationship and the nature of the parties' commitment to one another. It was submitted that the Tribunal was entitled to consider this issue.

39. The applicant's submissions contended the Tribunal was precluded from forming its own view as to whether the relationship of the visa applicant and the applicant was likely to endure, and was, in effect, bound to accept the parties' evidence as to whether they saw their relationship as a long term one. It was submitted by the respondent Counsel that the language of the definition gave no support to that contention and that a person could not be accepted as a spouse under the Regulations unless "the Minister is satisfied" of various matters. It was further submitted that the Tribunal was required to make its own evaluation of the evidence and to form its own opinion.

40. The respondent Counsel submitted that ground 4(i) and (ii) contended that the Tribunal denied the applicant procedural fairness because it failed to afford the visa applicant and the review applicant an opportunity to explain a discrepancy in evidence given by them regarding the review applicant's use of medication. The relevant finding of the Tribunal, which related to the review applicant's health, and not only to his use of medication, was stated as follows:

"For example, although stating that she lived with and slept with the sponsor for two weeks after their wedding, she claimed he was taking no medication and had no health problems. The evidence from the sponsor and his family is that he takes medication each night for epilepsy. The Tribunal regards the applicant's lack of knowledge about the sponsor's health, and the failure of the sponsor to communicate this to the applicant as uncharacteristic of a relationship in which one party derives support and companionship from the other as life partners." (CB p.310 [60])

41. It was submitted that the applicant's submissions adverted to the Tribunal's awareness of the applicant's speech impairment and "some degree of physical and mental impairment". The significance of this issue, particularly in a matter where an applicant was represented by a migration agent, was not explained in the applicant's submissions. The respondent noted in this regard that the Tribunal was not required to make a determination as to the competency of the applicant to take part in the proceedings before it: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB per Gummow and Hayne, JJ at [45] with Gleeson CJ and Callinan J agreeing. The Tribunal nevertheless took careful and appropriate steps to accommodate the applicant at the hearing after being informed by the interpreter that the applicant had a "speech impairment and a low IQ" (CB p.303 [20]-[21]). The applicant undertook to inform the Tribunal if he encountered any difficulty, and as the Tribunal noted the "hearing proceeded with the agreement of the applicant's representative" (CB p.303 [20]).

42. It was submitted that the applicant relied upon a reference to Mahon in the dissenting judgment of Toohey J in Annetts as authority for the proposition that the Tribunal was required to tell the applicant that it proposed to find that he and the visa applicant had insufficient knowledge of each other. It was also submitted that Mahon did not establish, as a general proposition, that a Tribunal must give advance notice of its findings: Refugee Review Tribunal; Ex parte Aala per Gaudron and Gummow JJ at [76]:

"There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to par (a) of s 425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired "as though it were a trial in a court of law".

43. Their Honours then proceeded to treat the second rule in Mahon as one which applies only in certain circumstances.

44. It was submitted by Counsel for the respondent that the circumstances of the present case had no resemblance to those of Aala where the Tribunal mistakenly led an applicant to believe that certain material was before it, when it was not. The applicant, his migration agent, and his mother were all present when the visa applicant gave evidence which was inconsistent with the evidence which the applicant and his mother gave about the applicant's health and use of medication. It was submitted that the delegate had previously rejected the visa applicant's application on the basis that the relationship between her and the applicant did not satisfy the requirements under Reg. 1.15A and the applicant was on notice that the Tribunal was considering all the aspects of his relationship with the visa applicant and that it was deciding whether that relationship was genuine. In those circumstances, it was submitted, that procedural fairness did not require the Tribunal to give notice of the finding which it made in its Reasons for Decision (CB p.310).

Conclusion

45. The applicant's submissions in respect of ground 1 was based on an approach adopted by the Tribunal where they adopted some form of mutual exclusivity in respect of the terms of "care" and "assistance" by attributing those terms to the role of carer and, that being the basis of the Tribunal's argument, to characterise the visa applicant as a carer and not a spouse. I support the view advanced by the applicant in that the provision of care did not militate against the existence of a spousal relationship. However, the decision of the Tribunal was the result of a cumulative process of many factors that did not support the contentions that the visa applicant was genuinely a spouse. I also agree with the submission made by the respondent that the definition in sub-reg. 1.15A(3) is an expansive one and not limited to the four characteristics contained within the definition. I do not believe that ground 1can be sustained.

46. Ground 2 focuses on the issue of whether the parties had sufficient knowledge of each other to meet the definition of "spouse" and that the particular issue of this knowledge related to the medication that the applicant was taking on a regular basis for his epilepsy. It was acknowledged that the applicant had a number of medical conditions of which epilepsy was a significant factor. The fact that the visa applicant was unaware of this condition, was not the sole reason in the Tribunal's reasoning to doubt the nature of the relationship. However, it was a contributing factor which the Tribunal was entitled to take into account. I believe the arguments put forward by the respondent more accurately reflect the weight the Tribunal gave to this issue and ground 2 cannot be sustained.

47. Ground 3 raised the issue of motivation for the visa applicant to enter into the arrangement with the applicant and the genuineness of the parties to enter into a spousal relationship. Counsel for the applicant argue that the hope of gain of advantage was not specified as a criteria against which the genuineness of a commitment was to be assessed although it had to be acknowledged that the visa applicant had accepted the role of a carer rather than that of a spouse and it was appropriate for the Tribunal to consider this. I accept the respondent's submissions that the Tribunal was entitled to evaluate the genuineness of a relationship and the nature of the parties' commitment to one another, given their overall assessment of whether the spousal relationship exists. The other contention proffered by the applicant is that the Tribunal was precluded from considering whether the relationship was likely to endure as a long term relationship. It is quite clearly stated in sub-reg. 1.15A(3)(d) that the commitment of the parties to each other was to be considered and the fourth element of that consideration was whether the relationship was to be long term. I cannot accept that the submissions made by the applicant in respect of ground 3 can be sustained.

48. In each of the first three grounds it was pleaded that the Tribunal has made jurisdictional error. I cannot accept that contention.

49. In ground 4 the applicant submitted the Tribunal denied the applicant procedural fairness because it failed to afford the applicant and the visa applicant an opportunity to explain a discrepancy in the evidence given by them regarding the applicant's use of medication. The Tribunal's decision did not support this submission because it made special arrangements for the applicant to be assisted by an interpreter and acknowledged the applicant had a speech impairment and a low IQ. Arrangements were put in place that, should the applicant have trouble understanding or following the proceedings. he would be entitled to ask for assistance to clarify any issue and the parties agreed that this would be the method for the Tribunal hearing to proceed. The authority quoted by the applicant of Mahon was qualified by the judgments of Gaudron and Gummow JJ in Aala where their Honours indicated that the second rule in Mahon was one which applied only in special circumstances.

50. Regarding the issue of procedural fairness and natural justice which was raised in both grounds 4 and 5, I accept the submissions of the respondent as set out above. On the arguments set out previously I cannot accept the contention that the applicant was denied procedural fairness or natural justice.

51. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

52. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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