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MIGRATION - Review of Migration Review Tribunal - spouse visa - not genuine marriage relationship - wrong test - no jurisdictional error.

Cakiroglu v Minister for Immigration [2004] FMCA 809 (19 November 2004)

Cakiroglu v Minister for Immigration [2004] FMCA 809 (19 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAKIROGLU v MINSTER FOR IMMIGRATION
[2004] FMCA 809




MIGRATION - Review of Migration Review Tribunal - spouse visa - not genuine marriage relationship - wrong test - no jurisdictional error.




Migration Act 1958, ss.359A, 474(2), 474(3)

Migration Regulations 1994, reg.1.15A(3), 1.15(1A)

Re: The Minister for State of Immigration, Local Government and Ethnic Affairs and: Dhillon and Dhillon (No. WAG 26 of 1989 unreported 8 May 1990)

NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs; Ex parte Lam (2003) 195 ALR 502

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

Kioa v West (1985) 159 CLR 550

Applicant:
SAMI CAKIROGLU




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 244 of 2004




Delivered on:


19 November 2004




Delivered at:


Melbourne




Hearing date:


27 September 2004




Judgment of:


O'Dwyer FM




REPRESENTATION

Counsel for the Applicant:


Mr Palmer




Solicitors for the Applicant:


Glass & Co Lawyers




Counsel for the Respondent:


Mr Heerey




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application filed on 4 March 2004 is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 244 of 2004

SAMI CAKIROGLU



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. By an application filed on 4 March 2004, the Applicant sought to review the decision made by the Migration Review Tribunal (MRT) on 9 February 2004. The MRT affirmed a determination of the Minister's delegate made on 22 April 2003 to refuse to grant to the Applicant an Extended Eligibility (Temporary) (Class TK) visa and a General (Residence) (Class AS) visa.

Background

2. The Applicant, who was born in Turkey, arrived in Australia on

9 November 1995 on a tourist visa. That visa was extended until

25 November 1996, but thereafter the Applicant unlawfully overstayed until located by the Department in August 1998. He was then granted several Bridging visas on his undertaking that he would apply for a substantive visa by 2 November 1998.

3. On 1 November 1998 the Applicant applied for a Combined Subclass 820/801 Spouse visa on the basis he was a spouse of an Australian citizen, who also became his nominator. The Applicant was previously married to a spouse resident in Turkey and has two children of that marriage. A divorce from that spouse was obtained in Turkey on

1 October 1998. His new wife and nominator was born in Turkey and was granted Australian citizenship on 23 September 1986. They were married in Griffith, NSW on 31 October 1998. Incidentally, his new wife was his former sister-in-law, being the wife of his brother who died in January 1998. Since 2 November 1998 the Applicant has held a Bridging visa pending the outcome of his application for a spouse visa.

4. The MRT found, when applying the evidence to the applicable criteria for the granting of a spouse visa, that, amongst other things, the spousal relationship between the Applicant and his nominator was not genuine. The MRT also made an adverse assessment of the credit of the Applicant. The MRT's findings are referred to more fully at pages 125 to 130 of the Court Book.

Applicant's contentions

5. The Applicant withdrew his contention that he was denied procedural fairness by the MRT not allowing verbal evidence to be given at the hearing by his step-daughter.

6. The Applicant relied on alleged breaches of s.359A of the Migration Act 1958 (the Act), submitted the MRT had applied the wrong test and failed to take into account relevant considerations; all of which, it was contended, constituted jurisdictional error on the part of the MRT.

Breaches of section 359A

7. The Applicant contended the following were breaches of the section:

(i) The Department had directed the MRT in correspondence to confine its finding to whether or not the parties were in a married relationship. The Applicant, however, conceded in the hearing that this did not amount to a basis for a finding of jurisdictional error;

(ii) A Department file note stated the Applicant's niece had informed the Department in a telephone conversation that the Applicant did not live with her and the nominator, but later rang to say he did;

(iii) A Department file note had stated that the Applicant was unable to give clear answers or explanations to certain issues; and

(iv) Other information in the Department's file which the MRT treated as being relevant to the credibility of the Applicant and/or his spouse, or relevant to the genuineness of their marriage. The contention identified this information as that detailed in paragraph 21 of the MRT's decision. It related to separate interviews on 17 April 2003 of the Applicant and his nominator.

8. It was submitted by the Applicant that the MRT considered the above material and information to be relevant to its decision, reference having been made in the decision to it, but had failed to inform the Applicant of it and afford the Applicant an opportunity to respond. Such a failure, it was submitted, constituted jurisdictional error on the part of the MRT.

Wrong test

9. It was submitted that although the MRT purported to apply the appropriate tests required under regs.1.15(1A)(b) and 1.15A(3), it in actuality applied an inapplicable test; namely the motivation of the parties to marry. It was said the MRT fell into the error of implicitly assuming the fact that, as the catalyst for the marriage may have been a desire to stay in Australia, the marriage is not genuine. The correct test, it was contended, was whether there is a mutual commitment to a shared life to the exclusion of all others. By "focussing" on the motive of the Applicant and nominator for getting married at the particular time that they did, the MRT failed to apply this test. The Applicant referred to the decision of Re: The Minister of State of Immigration, Local Government and Ethnic Affairs and: Dhillon and Dhillon (No. WAG 26 of 1989 unreported 8 May 1990) in support of his contention that whatever the motivation at the commencement of a marriage, it does not follow that there is not a genuine marriage relationship thereafter.

Relevant considerations

10. The Applicant contends that the MRT failed to take into account the body of evidence about the loving and supportive nature of the relationship between the Applicant and the nominator which, under reg.1.15A(3)(d)(iii), there was a mandatory obligation to do. In not doing so, there was a jurisdictional error on the part of the MRT.

Respondent's contentions

11. The Respondent contends that the decision of the MRT is a "privative clause decision" pursuant to ss.474(2) and (3) of the Act and is therefore afforded protection unless the decision discloses some jurisdictional error, which may include a breach of natural justice or procedural fairness.

12. In respect of the Applicant's contentions outlined in paragraph 7 (ii) and (iii) above, the Respondent argued that although the MRT described the "information" in a chronological recitation of the facts, it did not make any further reference to this information in its findings and conclusion. Referring to the decisions in NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 and VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123, the Respondent contended that such information was not sufficiently operative in the mind of the MRT to give rise to any obligation to give particulars, and that the information was relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process undertaken by the MRT.

In those circumstances, the Respondent contends, there was not a breach of s.359A.

13. In respect of the Applicant's contention outlined in paragraph 7(iv) above, the Respondent notes the lack of particularity in the submission, and further notes there was no reference to the interviews in the MRT's findings and conclusion. The only reference made in the findings and conclusion that might be relevant was a reference to the nominator being too embarrassed to live with the Applicant in the presence of her adult children. It was submitted that this, in isolation, did not play an integral or an important role in the MRT's decision and therefore there was no obligation under s.359A. In any event, the Respondent notes that the Applicant was aware of this issue as it was disclosed in the Decision Record provided to the Applicant by the Respondent following the delegate's decision.

14. In respect of the contention by the Applicant that the MRT applied the wrong test, the Respondent states that the MRT made findings of fact in respect of the required criteria and had carefully addressed those criteria; that it was not correct to say the MRT applied the wrong test. Motivation was but a part of determining whether the marriage was genuine and came under the legislative requirement to have regard to "all of the circumstances of the relationship" as specified in

reg.1.15A(3).

15. The Respondent argued that the invitation to determine whether the MRT "focussed" on the parties' motivation as the test, was an invitation to, in effect, conduct a merits review of the MRT's decision; which this Court cannot do.

16. In respect of the contention that the MRT failed to take into account relevant considerations, the Respondent points to the MRT's clear findings of fact and that the ultimate decision was based on a consideration of "the totality of the evidence". It is not for this Court to reopen the merits of the MRT's findings of fact.

Determination

17. In analysing the MRT's decision for any error, one must begin with the fundamental principle that this Court does not have jurisdiction to review the merits of the MRT's decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Grummow JJ).

18. Further, it is important to remember the concern of this court is with "practical injustice", not mere technicalities (see Minister for Immigration and Ethnic Affairs; Ex parte Lam (2003) 195 ALR 502 at [77] per McHugh and Grummow JJ); that only a "manifest" or "serious" error would amount to a jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [12], [13] and [18] per Gleeson CJ and at [160] per Callinan J).

19. The requirement of natural justice is that the Applicant be given the opportunity to respond to adverse information that is credible, relevant and significant to the decision made. (see Kioa v West (1985) 159 CLR 550 per Brennan J at 629).

20. From a reading of the MRT's decision, it is not evident that there was a breach of s.359A as alleged and set out above. The MRT findings were clearly expressed and open on the evidence, which findings did not refer to the matters said to have been considered in breach of s.359A. That which might, namely the reference to the interviews of 17 April 2003, does not amount to any significance, having regard to the strong findings made by the MRT that supported its ultimate decision.

21. It is not evident from the MRT's decision that it "focussed" on the motive of the parties in marrying, to the detriment of applying the appropriate tests, which the MRT clearly identified and against which clear findings of fact were made supportive of the ultimate decision.

It is clear that motivation of the parties in marrying was a consideration of the MRT, but was a proper consideration having regard to "all the circumstances of the relationship". It was not, on the face of it, to the exclusion of applying the proper legislative test, both at the time of marrying and at the time of the decision being made by the MRT.

22. Again, there does not appear to have been a failure of the MRT to have due regard to relevant and mandatory considerations as set out above. The MRT had regard, in its own words, to "the totality of the evidence". Part of that evidence were the affidavits tendered in support of the Applicant which made reference to those matters, it was contended, were not taken into account. The MRT made specific reference to the various affidavits filed in support of the Applicant by various family members. In its assessment of the evidence the MRT may not have given such evidence much weight, but it is manifest that the MRT considered and was mindful of this evidence. This contention by the Applicant, in effect, seeks to ask of this Court to interfere with the MRT's findings of fact, which it clearly cannot. I am satisfied that the MRT complied with its mandatory obligation to consider the matters required under reg.1.15A and in particular reg.1.15A(3)(d)(iii).

Conclusion

23. I find that the MRT has not erred in any manner that would devoid the protection of the decision afforded by s.474 as it did not make a "jurisdictional error". Accordingly, the review application should be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 19 November 2004
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