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MIGRATION - Family (Residence) Visa - appeal from a single judge dismissing application for review of decision of Migration Review Tribunal - whether appellant an "aged dependent relative" for the purposes of reg 1.03 Migration Regulations 1994 (Cth) - appellant living apart from wife but no decree of judicial separation - whether appellant "formally separated" in the context of definition of "aged dependent relative"

James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91 (8

James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91 (8 April 2002); [2002] FCA 383
Last Updated: 9 May 2002



James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91
James v Minister for Immigration & Multicultural Affairs [2002] FCA 383



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
James v Minister for Immigration & Multicultural Affairs [2002] FCA 383

MIGRATION - Family (Residence) Visa - appeal from a single judge dismissing application for review of decision of Migration Review Tribunal - whether appellant an "aged dependent relative" for the purposes of reg 1.03 Migration Regulations 1994 (Cth) - appellant living apart from wife but no decree of judicial separation - whether appellant "formally separated" in the context of definition of "aged dependent relative"

WORDS AND PHRASES - "formally separated"

Migration Regulations 1994 (Cth) regs 1.03, 1.15A

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 applied

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397, 400 - 401 applied

Ainslie v Ainslie (1927) 39 CLR 381 at 394, 408 cited

Williams v Williams [1921] P 131 at 135 cited

Fender v St John-Mildmay [1938] AC 1 at 24 cited

Walter v Walter [1921] P 302 cited

Lacey v Lacey (1931) 146 LT 48 at 49 cited

Besant v Wood (1879) 12 Ch D 605 cited

Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] 1 Ch 119, 144 applied

SELLAPA JOACHIM JAMES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 790 OF 2001

HEEREY, COOPER AND FINKELSTEIN JJ

8 APRIL 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 790 OF 2001




On appeal from a single Judge of the Federal Court of Australia

BETWEEN:
SELLAPA JOACHIM JAMES

APPELLANT

AND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
HEEREY, COOPER AND FINKELSTEIN JJ

DATE OF ORDER:
8 APRIL 2002

WHERE MADE:
MELBOURNE



THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of the primary judge are set aside and in lieu thereof it is ordered that the application be remitted to the Migration Review Tribunal differently constituted for reconsideration.

3. The respondent pay the appellant's costs of the appeal and at first instance.

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

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 790 OF 2001



BETWEEN:
SELLAPA JOACHIM JAMES

APPELLANT

AND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
HEEREY, COOPER AND FINKELSTEIN JJ

DATE:
8 APRIL 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
HEEREY J:

1 The appellant appeals from a decision of a judge of this Court which dismissed an application for review of a decision of the Migration Review Tribunal (the Tribunal) given on 8 February 2001 affirming a decision of a delegate of the Minister to refuse the grant of a Family (Residence) (Class AO) visa sub-class 806 to the appellant.

2 The appeal raises the question of the proper construction of the expression "formally separated" in the context of the term "aged dependent relative&q;
uot; which is defined in reg 1.03 of the Migration Regulations 1994 (Cth) (the Regulations) to mean:

"in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, ...a relative who:
(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and

(b) has been dependent on that person for a reasonable period, and remains so dependent; and

(c) is old enough to be granted an age pension under the Social Security Act 1991."


3 The appellant claimed to be an "aged dependent relative" in relation to his son Immanuel, an Australian permanent resident and citizen.

4 The appellant was born in 1920 and thus satisfied the age requirement in par (c). It was apparently not in dispute that he was dependent on his son within the meaning of par (b). The issue before the Tribunal, and on which the appellant failed, was whether he was "formally separated" from his wife within the meaning of par (a).

Evidence before the Tribunal

5 Before the Tribunal the appellant relied on two statutory declarations made by him, one on 26 November 1999 and the other on 29 September 2000, and a statutory declaration by his wife Leela Pushparanee James made on 28 September 2000. His son Immanuel gave oral evidence, as did the appellant himself.

6 In his first statutory declaration the appellant stated that he was born on 18 December 1920 in Jaffna, Sri Lanka, and was married on 22 August 1954, also in Jaffna. He and his wife had six children, two of whom, Immanuel and Christy, were in Australia. There was a daughter in Canada, two sons in the United Kingdom and another son in Norway. Because of the "persecutory situation arising out of the ethnic conflict in Sri Lanka", the appellant, his wife and Christy moved from Jaffna to Colombo. In October 1994 the appellant's wife left for Canada to provide assistance to their daughter.

7 In the following year the appellant and Christy were forced to leave Sri Lanka. They arrived in Australia on 13 November 1995 and made application for refugee status on or about 24 April 1996. This was refused and an application for review by the Refugee Review Tribunal was dismissed on or about 2 August 1996. However the appellant was subsequently granted a Sri Lankan sub-class 435 visa valid until 31 July 1997. The statutory declaration continues:

"6. When my Application was declined by RRT, it was my expectation that my wife would return to Sri Lanka, and that we would continue to live there in our last days. Our main concern was the safety and well being of the children. As long as we felt they were "safe" it did not matter living our last days in Sri Lanka. I was becoming feeble, and felt I was being a burden to my son and desired to return home. My wife however thought otherwise and decided to stay in Canada.
7. I requested my wife to return to Sri Lanka so that we may do whatever we can without being a burden to our children. She refused this request, since then our relationship became very strained. I offered to join her in Canada despite my unwillingness and concern over the cold weather. My wife did not advise me to join her in Canada. Although I persuaded her on many occasions, that I needed her at this time of my life and that we should cohabit and for that purpose to return to Sri Lanka. She refused.

8. I also told her that with growing age I could not live in Canada, in that weather and the best option for us would be to return to Sri Lanka. She refused to do that. Our relationship continued to be strained, and with the physical separation between us, our strain began to widen and cemented our separation.

9. I have no assets and even whatever I had in common with my wife are in the war-torn part of Sri Lanka and presently of no value. It is because of these reasons I did not see any necessity to seek any settlement of such assets or taking any further steps about our situation. I have more than clearly told my wife that or [sic] marriage has ended because of her refusal to cohabit and her choice to live in Canada."

8 The statutory declaration then deals with the appellant's dependence on his son Immanuel and concludes:

"12. I severed the marital relationship when my spouse decided to proceed with residence in Canada and when she expressed intentions not to continue to cohabit by not returning to Sri Lanka."
9 In the statutory declaration of 29 September 2000, after deposing to his marriage and the departure of his wife for Canada in October 1994, the appellant states:

"3. I am separated from her since October 1994 and is living with my children in Australia.
4. Misunderstanding arose between us in March 1997, when I insisted that me and my wife return to Sri Lanka.

5. My wife has been provided landed Immigration status in Canada and lives there with our daughter.

6. She is presently in Australia on a short visit and has made it clear that she will return to Canada on completion of her visa. Our children attempted some reconciliation but nothing happened, to resolve our differences.

7. I continue to live in separation from her."

10 The appellant's wife's declaration of 28 September 2000, after referring to formal matters, states:

"3. I am separated from my husband since about March 1997. This occurred particularly following the months of his Refugee Review Tribunal hearing when he insisted that we return to Colombo in Sri Lanka and live together. I did not agree to return to Sri Lanka and ever since we are living in separation. He was not willing to compromise except on the condition of my returning to Sri Lanka to live with him.
4. I am presently provided landed immigration status in Canada from 26th of May 2000, and living at the above address [in Toronto] with my daughter Queena Singarayar and intend to live there. My application for such status did not include my husband.

5. I am presently in Australia on a short visit. At the request of my children at the completion of this visit I am returning to Canada. I have not cohabited with my husband since my physical separation from him in October 1994."

11 In evidence to the Tribunal at a hearing on 17 January 2001 the appellant said that his wife was presently in Australia as a visitor and living with the younger son Christy, who had applied for refugee status. He had nothing to do with her when she visited Immanuel, with whom he resided. When she was in Canada he did not write to her or telephone her. The children had tried to reconcile them but this had not succeeded. When asked by the Tribunal why he had not taken legal action to end his marriage in the circumstances he stated that he was separated and did not want to take legal action, although he stated his marriage was at an end and his wife was not living with him. Other than the statutory declarations from the appellant and his wife, there were no other documents referring to the separation. He said there was no need for other documentation as there was no property to divide or other assets. Their property in Sri Lanka had been given to the daughter in Canada. There was no need for any other documents for the separation. He was in ill health.

12 The appellant's son Immanuel referred to his father's health and how he provided for him. The other children helped as well when they could. The appellant's wife had been in Australia for four months and lived with Christy, who had applied for refugee status. Immanuel said that attempts to reconcile his parents had failed. They did not talk to each other. His father had not sponsored his wife for residency. His sister in Canada and brother in England largely supported their mother.

Decision of the Tribunal

13 For present purposes the relevant parts of the Tribunal's decision were as follows:

"19. Other than the Declarations, there appears to be no further documentation regarding the formalisation of the stated separation. Given the wording in paragraph (a) of the definition of an "aged dependent relative" it is clear from the use of the word "or" that formalisation in the form of divorce is not a requirement for being "formally separated". Indeed, it seems that the use of the word "formally" requires something more than just mere physical separation.
20. In the Macquarie dictionary (2nd Ed.) "formally" means "in a formal manner, as regards form; in form". "Formal" in the same dictionary is stated to mean in part "marked by form or ceremony ... made or done in accordance with forms ensuring validity being in accordance with prescribed or customary forms".

21. The Tribunal notes that Statutory Declarations were prepared well after the application was made and for the purposes of the application. This contrasts in part, from the situation in Re Gatenby (IRT Decision 569 30 December 1991), where the parties entered into a Deed of Separation before the application was made to the Department, with a view to divorce proceedings. Although that case dealt with the requirements for a "remaining relative" under the 1989 Migration Regulations, the preparation of the Deed was relevant to the decision in that case. The Tribunal finds that "formally separated" requires more than physical separation over a period of time, as reflected in the Family Court cases submitted. The use of the word "formally" as indicated earlier must have some meaning or it would not have been included by the Legislature if physical and mental separation was sufficient. Indeed, such separation could be achieved by a couple living in different households or in different countries or by stating that mental separation was present as in this case.

22. In the circumstances the Tribunal feels, on balance, that the Visa Applicant's description in the application form 887 that he was "married" was the correct description of his marital status and was most apt in reflecting his situation. Indeed, the Tribunal was somewhat sceptical of the evidence by the Visa Applicant and his son that there is no contact with the wife, even when she visited her son at the house where the Visa Applicant lived and his evidence that he did not talk to her on the telephone when telephoning his daughter in Canada.

23. In spite of the Declarations produced and given the use of the word "formally" something more appears to be needed to formalise the stated separation. Perhaps in the required circumstances a Domestic Violence order by a Court, a formal Deed of Separation and the like could satisfy paragraph (a) of the definition of "aged dependent relative". Given the evidence and material before it, the Tribunal finds on balance, that the Visa Application was not "formally separated" from his wife as submitted and he is therefore unable to satisfy the requirements for an "aged dependent relative"."

14 The Tribunal did not make any express findings of primary fact but proceeded immediately from a recounting of the evidence to the conclusionary finding that the appellant was not "formally separated". It is desirable that tribunals make clear findings of fact so that applicants can know what parts of their case have or have not been accepted and the court, which itself cannot find facts, can on judicial review ascertain whether the law has been correctly applied. Nor is it particularly helpful for tribunals to express scepticism as to part of the evidence without making it clear whether or not that evidence is accepted. Nevertheless the case was conducted on appeal and, I would infer, also before his Honour on the implicit basis that the factual history given in support of the application was accepted by the Tribunal. Viewed as a whole that history does not seem inherently improbable and was corroborated by the appellant's wife and his son Immanuel. There is no mention in the Tribunal's reasons of any questioning of the appellant or Immanuel which suggested doubt by the Tribunal as to their credibility.

Decision of the primary judge

15 The essence of his Honour's reasoning is contained in the following passage:

"5. The Tribunal's construction of the expression "formally separated" is, in my view, correct. The Tribunal referred to the Macquarie Dictionary in support of its construction. It noted that the word "formally" had to be given some force, and that while the word "separation" standing alone might attract the meaning given to the word in cases arising under the Family Law Act 1975, that meaning was not available in par (a) of the definition because of the word "formally". In my view, the words "formally separated", as part of the larger expression "divorced or formally separated", contemplates something in the nature of an order or decree of judicial separation, or the making of an agreement for separation, at least if sanctioned or approved by an appropriate authority. Section 52 of the Matrimonial Causes Act 1959 (Cth) provided for a decree of judicial separation. The effect of the decree was to relieve the petitioner of the obligation to cohabit with the other party to the marriage while the decree remained in operation, but without otherwise affecting the marriage or the status, rights and obligations of the parties: s 54. The 1959 Act also contemplated that the parties to a marriage might enter into an agreement providing for their separation, under which one party may be obliged to pay maintenance to the other: ss 28(j)(ii) and 36(2). Although under the Family Law Act it is no longer possible to obtain a decree of judicial separation or a separation order, that Act envisages that the laws of another country may make such relief available. Section 104 provides for the recognition in certain circumstances of the legal separation of the parties to a marriage effected in accordance with the law of an overseas jurisdiction.
6. The construction of "formally separated" that I prefer accords with the general principle of statutory interpretation that all words should prima facie be given some meaning and effect. See Pearce, Statutory Interpretation in Australia 4th ed (1996) at 35, The Commonwealth v Baume (1905) 2 CLR 405 at 414 and Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12-13."

"Formally separated"

16 There can be no doubt that usually courts will prefer a construction which gives every word in the relevant expression some work to do. It was not suggested that this general rule did not apply in the present case. The real question is what meaning can be given to the word "formally" consistent with the object of the statutory scheme of visa administration and the textual context.

17 I agree with the Tribunal that the use of the word "formally" requires something more than just physical separation. But the question is, what kind of fact or circumstance can provide that "something more". Again, there is no doubt that a decree of judicial separation would be sufficient. The Tribunal considered a "formal Deed of Separation" could satisfy par (a) of the definition. His Honour seemed to agree, although adding the qualification "at least if sanctioned or approved by an appropriate authority".

18 The Oxford English Dictionary gives eight distinct meanings of "formally". Meaning 5 is "explicitly, expressly" and one of the examples given is from Charlotte Bronte's Villette:

"I cannot say that Paulina ... formally proposed to herself the task of winning him to reflection."

In the same sense one might say "I was not formally invited to the wedding". In this usage there is not necessarily any element of a legally required act or ceremony. The meaning conveyed is that the action being qualified by the adverb "formally" is clear, definite, unequivocal and unmistakable.

19 As the Tribunal accepted, the status of being "formally separated" could be evidenced by a document, but the law usually gives effect to an intention expressed by a person's conduct as well as that conveyed in written form. Intention manifested in this way can be just as clear (indeed, sometimes more clear) as when it emerges from a document.

20 In the present case the objective facts were that the two spouses had for some years lived on different continents, did not communicate with each other and did not support one another financially, emotionally or in any other way. Certainly they were separated in the sense of living apart and were thus "separated", but there was clearly something more.

21 Paragraph (a) is not concerned with marital status as such. It finds its place in a legislative scheme regulating non-citizens' entry into and residence in Australia. It is concerned with the realities of the relationship between an aged non-citizen, said to be dependent on an Australian relative, and that non-citizen's spouse (if any). If the drafters of the Regulations had been concerned with marital status, an obvious source of drafting vocabulary would have been s 104 of the Family Law Act 1975 (Cth) which deals with recognition of overseas decrees. Section 104(3) states:

"A dissolution or annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:"
22 The sub-section then goes on to stipulate a number of criteria such as nationality, residence etc. If the intention of the drafters had been that found by the Tribunal and his Honour, an obvious choice would have been something along the lines of the opening words of s 104(3). The expression "formally separated" has a natural meaning wider than "legally separated" and extends at least to a permanent, physical separation manifested clearly and explicitly by the conduct of the parties, including, but not limited to, their entering into a written agreement for separation. There is no basis for reading into par (a) a requirement that the sanction or approval of some court or public authority is required.

23 Moreover, it is to be noted that par (a) speaks of the relative being "formally separated from his or her spouse". "Spouse" includes de facto as well as married spouse: reg 1.15A. Determination of the existence or otherwise of a de facto relationship involves factual questions such as whether there is a "mutual commitment to a shared life as husband and wife to the exclusion of all others" and whether the relationship is "genuine and continuing": reg 1.15A(2)(c)(i) and (ii). Obviously enough de facto spouses could be "formally separated" without any Court order; indeed it is of the essence of a de facto relationship that its termination as well as its establishment occurs without the intervention of the State. But the expression "formally separated" has got to be given work to do in the case of de facto spouses. The meaning suggested in the preceding paragraph could apply in the case of de facto spouses, just as it does with de jure ones, albeit in the latter case it would also be open for reliance to be placed on a court decree of judicial separation or court-sanctioned agreement, if it existed.

24 It was argued that the appellant's construction would involve uncertainty for decision-makers. Instead of just looking for an appropriate document they would have to engage in messy fact finding. But this does not seem to me to amount to such an "inconvenience or improbability of result" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320) as to point against that construction. The field of migration decision making not infrequently involves difficult fact finding. To ascertain whether spouses are formally separated in the sense I would adopt would usually present less difficulty than assessing whether an applicant has a well founded fear of persecution for the purposes of a protection visa.

25 In my opinion the criterion of being "formally separated" is essentially a factual one, although, depending on the circumstances, it is conceivable that questions of private international law might arise. This seems unlikely in the present case.

26 The appeal should be allowed, the orders made below should be set aside, the decision of the Tribunal should also be set aside and the application remitted to the Tribunal differently constituted for reconsideration. The respondent should pay the appellant's costs of the appeal and at first instance.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 8 April 2002

IN THE FEDERAL COURT OF AUSTRALIA


QUEENSLAND DISTRICT REGISTRY
V 790 OF 2002



BETWEEN:
SELLAPPA JOACHIM JAMES

APPELLANT

AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT



JUDGES:
HEEREY, COOPER AND FINKELSTEIN JJ

DATE:
8 APRIL 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
COOPER J:

27 The circumstances giving rise to this appeal are set out in the reasons of Heerey J. I adopt his Honour's recitation of those circumstances and do not need to repeat them for the purpose of my own reasons.

28 The issue on appeal is the proper construction of the definition of "aged dependent relative" where it appears in reg 1.03 of the Migration Regulations 1994 (Cth). The definition provides :

"aged dependent relative, in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and

(b) has been dependent on that person for a reasonable period, and remains so dependent; and

(c) is old enough to be granted an age pension under the Social Security Act 1991."

29 It is one of the criteria for a Family (Residence) (Class AO) visa sub class 806 that the applicant for the visa be an aged dependent, as defined, or a person who:

"(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b) is usually resident in Australia; and

(c) has nominated the applicant for the grant of a visa."

(Clause 806.213 of Schedule 2)

30 The appellant contends that properly construed, "formally separated", where it appears in the definition, means no more than that the marriage relationship to which the applicant for the visa is party, has irretrievably broken down and that the parties no longer cohabit. On such a construction, the appellant contends that he satisfied this criterion and that the Migration Review Tribunal ("the Tribunal") and the judge of this Court below (Sundberg J) erred in not so finding.

31 The respondent contends that the Tribunal and his Honour were correct in construing the phrase "formally separated" as requiring "something in the nature of an order or decree of judicial separation, or the making of an agreement for separation, at least if sanctioned or approved by an appropriate authority" (per Sundberg J in par 5 of his reasons).

32 The phrase "formally separated" must be read in the context of the definition of "aged dependent relative" as a whole and its meaning is not to be determined by simply ascribing a meaning to each of the words "formally" and "separated": Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397, 400 - 401. Further, the phrase is not to be construed in isolation and it takes its meaning from its subject matter, the context where it appears in the statutory definition and from its statutory purpose: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.

33 Paragraph (a) of the definition is concerned with applicants who are not married at the time of the application for a visa because they have never married, or they are at that time widowed or are divorced. Those persons have no obligations or duties to cohabit with a spouse arising out of a subsisting marriage. To the extent that par (a) of the definition covers applicants whose status is married, because there exists a subsisting marriage, it only includes a married applicant who is "formally separated from his or her spouse" (par (a)) and who has been and remains dependent on a person other than the spouse (par (b)). In context, the words "formally separated" are used to differentiate between two categories of persons who otherwise have the common status of being married. The characteristic used to differentiate between the categories is the absence of cohabitation of the spouses, brought about by something which constitutes a formal separation one from the other.

34 In my view there is a discernible genus in the categories "never married", "widowed" and "divorced", and that is a class of persons who have no duties or obligations to cohabit with a spouse at the time of making the application for a visa. The intention of par (a) of the definition was to treat each of the categories as being similarly placed, and that requires, in my view, that an applicant who is formally separated from his or her spouse likewise be under no obligation or duty of cohabitation to the other party to the marriage. The consequence is that the formal separation of which the paragraph speaks is one which relieves the applicant from any obligation to cohabit with his or her spouse.

35 Although it is possible that an applicant may be able to point to some act occurring in Australia which has the effect under Australian municipal law of releasing the applicant for the visa from any obligation to cohabit with his or her spouse, the likelihood is that the applicant will rely upon some act which occurred overseas which the applicant claims had the effect under some foreign system of law of releasing the applicant from any obligation of cohabitation arising from the status of being married. In the latter case, the applicant must show that under the applicable foreign law there has occurred an act which that foreign law recognises as valid and effective to relieve the applicant from any obligation to cohabit with his or her spouse and that the legal effect of the foreign law is recognised in Australia under the common law rules of private international law or s 104 of the Family Law Act 1975 (Cth).

36 The definition does not specify any particular way in which the formal separation is to be created or carried into effect. Rather, it is sufficiently flexible to cover the different mechanisms, both public and private, by which the incidents of the marriage relationship may be varied or abrogated in foreign countries with differing laws and differing cultural or religious practices.

37 The flexibility inherent in the requirement of a formal separation for the purpose of the definition cautions against imposing limitations referable to the types of actions or arrangements existing or known to Australian law. In particular, there is no occasion to import any requirement that formal separation can only be brought about by judicial decree or order or by the sanction of a deed of separation by a Court or by some judicial officer. For example, at common law the right to refuse to cohabit may be created by contract. A contractual right so created gives rise to a private right which is not contrary to public policy. It is a right which, in previous times, was a complete answer, on the ground of just cause, to a suit for a decree for restitution of conjugal rights before such suits were abolished in Australia: Ainslie v Ainslie (1927) 39 CLR 381, 394, 408; Williams v Williams [1921] P 131 at 135; Fender v St John-Mildmay [1938] AC 1 at 24. Nor is it necessary that an agreement to separate must be embodied in a formal deed of separation; it is sufficient that there be an agreement capable of being proved up in the ordinary way as, for example, from conduct or the exchange of correspondence. See, for example, Walter v Walter [1921] P 302; Lacey v Lacey (1931) 146 LT 48 at 49. Although not recognised by the ecclesiastical courts, agreements to separate were, and remain, recognised and given effect to by the common law.

38 In the present case, the question which the Tribunal was required to ask, and which it failed to do, was whether in the circumstances of the appellant, on the material before the Tribunal, there was made out an agreement to separate between the appellant and his wife, which was recognised under Australian law, including the common law rules of private international law, as valid and effective to release the appellant from any obligation to cohabit with his wife at the time of making the application for the visa sub-class 806 and at the time for determination of the application. In requiring that there be demonstrated something in the nature of a court order, or a formal deed of separation or the like, to satisfy the requirements of par (a) of the definition, the Tribunal erred in its construction of the statutory definition.

39 The adoption in this Court at first instance of the approach taken by the Tribunal as the correct construction of the statutory definition, in my view also involved legal error for the reasons stated above.

40 The appeal should be allowed and the application remitted to the Tribunal differently constituted for reconsideration according to law. Costs should follow the event and the appellant should have his costs of the appeal and of the application before Sundberg J.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.



Associate:

Dated: 8 April 2002

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 790 of 2001



BETWEEN:
SELLAPPA JOACHIM JAMES

Appellant

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent



JUDGES:
HEEREY, COOPER and FINKELSTEIN JJ

DATE:
8 APRIL 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
FINKELSTEIN J:

41 According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: being already married; being under age; in the case of a minor, not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.

42 The common law was altered in England with the passage of the Matrimonial Causes Act 1857 (UK), 20 & 21 Vict c184. Matrimonial causes were removed from the Ecclesiastical Court into a new Court for Divorce and Matrimonial Causes. The new court could order the dissolution of a marriage on grounds other than incapacity. The decree for a divorce a mensa et thoro was abolished and in its place the divorce court could pronounce a decree of separation known as a "legal separation" or "judicial separation". In the Matrimonial Causes Act itself it was referred to as "a Decree for a Judicial Separation" or "a Sentence of Judicial Separation": see ss 7 and 16. Legal separation, however, is not only effected by decree. The parties to a marriage in any community may live apart from each other. Whether they are separated legally depends upon the arrangements they have made. Sometimes parties to a marriage agree to separate temporarily or even for a defined period. Such an agreement is not contrary to public policy. There may be good reason for the separation. But with a temporary separation, the rights and obligations of the spouses remain unaltered. Parties to a marriage may also agree to separate permanently. In such a case there is usually provision made for the maintenance by one spouse of the other, and for the custody of and access to any children. These separation agreements were not recognised by the ecclesiastical courts, but were enforceable under the common law. In due course they were also recognised by equity courts. Separation agreements can be oral (Lacey v Lacey (1931) 146 LT 48), but they are usually embodied in a deed. The effect of a separation agreement is to abrogate the status, rights and obligations imposed by marriage in so far as the separation agreement creates a new status and imposes new rights and obligations. While the separation agreement is effective, it governs the future status, rights and obligations of husband and wife: Besant v Wood (1879) 12 Ch D 605.

43 What kind of separation is contemplated by the expression "formally separated from his or her spouse" in the definition of "aged dependent relative"? According to the full definition (which is located in reg 1.03 of the Migration Regulations 1994 (Cth)), an aged dependent relative must have a number of characteristics, one of which is that he or she is a person who "has never married, or is widowed, divorced or formally separated from his or her spouse".

44 I had considered but rejected the possibility that "formal separation" requires something in the nature of a ceremonial act to establish the validity of the separation, such as judicial separation. If one were to approach the construction question by asking, first, what is meant by "separation" and, second, what is required to make that separation "formal", such a meaning may result. However, I do not think that this is the proper approach. The question is what is meant by the composite expression "formal separation" in the context in which it is found (see eg Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] 1 Ch 119, 144).

45 It is clear that when used in the regulation the word "separated" must contemplate either an agreement between husband and wife to separate permanently, or a mere physical separation, even though such separation may be wilful and continuous. Each of the other expressions that are found in the regulation, namely "never married", "widowed" and "divorced" are concerned with status. It is a status where none of the ordinary incidents of a marriage exist. This suggests that to be "separated" from his or her spouse, means separated in a way that will affect status, and remove the usual rights and obligations that subsist between married partners. Under Australian law, that would require at least an agreement to separate permanently. What of the requirement that the separation be "formal"? I think that the use of this word does no more than confirm that the separation must be "legal", that it be a separation of a kind which is recognised as bringing about a change in status, as distinguished from the case where parties are merely living apart. It is not uncommon to find the word "formal" used when speaking of a separation by agreement (see eg Lacey at 49).

46 Thus, in my opinion, the expression "formally separated" primarily contemplates a separation between husband and wife that is both consensual (whether it be written or oral) and intended to be permanent. But it would also cover cases where there has been both a physical separation and some other act which, according to the law that governs the marriage, would bring about a change in the status of husband and wife. For instance a judicial decree of separation, which may be made by courts in some countries, would suffice. So, also, would an equivalent order by a religious tribunal.

47 Mr James sought a visa one criterion for which was that he be an "aged dependent relative". Mr James is married but he and his wife have not been together for many years. Neither of them appears to have obtained a decree of separation or its equivalent. Whether they have separated in a way that has put an end to their relations as husband and wife, is not a matter that was investigated by the tribunal. Until that investigation takes place it is not possible to say whether or not Mr James is an "aged dependent relative".

48 In my opinion the appeal should be allowed, the orders made below should be set aside, the decision of the tribunal should be set aside, and the matter be remitted to the tribunal for reconsideration. The appellant should have his costs of the appeal and the hearing below.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.



Associate:

Dated: 8 April 2002

Counsel for the Appellant:
Mr T V Hurley




Solicitor for the Appellant:
Ravi James & Associates




Counsel for the Respondent:
Mr C J Horan




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
28 February 2002




Date of Judgment:
8 April 2002

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