a JUDGMENT No. sont adel oA. CATCHWORDS ADMINISTRATIVE LAW - immigration - application to review refusal to grant extended eligibility (spouse) entry permit as marital relationship not genuine and continuing - whether improper exercise of power - whether irrelevant considerations taken into account - whether relevant considerations ignored - whether decision unreasonable. IMMIGRATION - application to review refusal to grant extended eligibility (spouse) entry permit - whether prescribed criteria of reg.126 Migration Regulations 1989 (Cth) satisfied - whether marital relationship "genuine and continuing". Administrative Decisions (Judicial Review) Act 1977 (Cth): 68.5(1)(e), 5(2)(a), (b) and (g). Migration Regulations 1989 (Cth): reg.126. Minister of State for Immigration, Local Government and Ethnic Affairs ov Dhillon (Full Federal Court, 8 May 1990, unreported); followed. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985- 86) 162 CLR 24; applied. ESTER JONES v AFFAIRS No WG 37 of 1994 CORAM: HILL J PLACE: SYDNEY (Heard in Perth) DATED: 9 DECEMBER 1994 RECEIVED 12 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN_THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY ) No WG 37 of 1994 ) GENERAL DIVISION ) BETWEEN: ESTER JONES Applicant AND: THE __MINISTER _OF STATE _ FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM : HILL J PLACE: SYDNEY (Heard in Perth) DATED: 9 DECEMBER 1994 MINUTES OF ORDER THE COURT ORDERS THAT: 1. Application dismissed. 2. Applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA were ww WESTERN AUSTRALIA DISTRICT REGISTRY No WG 37 of 1994 Isto BETWEEN: ESTER JONES Applicant AND: THE MINISTER _OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: HILL J PLACE: SYDNEY (Heard in Perth) DATED: 9 DECEMBER 1994 REASONS FOR JUDGMENT Mrs Jones, the applicant, is a citizen of the Philippines. She was born on 13 October 1949, visited Australia first in 1988 and arrived in Australia for the second time on 4 August 1991, having been granted a visitor visa with permission to remain for a period of six months. At some time between 27 August 1991 and October of that year, she met, by arrangement, Mr Harry Jones. He was then 76 or 77 years of age and in bad health. His wife had died around a year before and he lived, so Mrs Jones said, in dirty circumstances but in a house he owned. On the day they met, according to the applicant, Mr Jones proposed marriage to her. She told him she would like to think about it. One week later (the next time they met) she accepted the proposal. She was persuaded to do so by her sister, Rose Peters, and her sister's husband, with whom she was then living to assist her to stay in Australia. On 29 October 1991 Mrs Jones married Mr Jones and, on the basis of the marriage to an Australian citizen, she applied, on 13 January 1992, to remain permanently in Australia. At some time one of the applicant's daughters was brought to Australia at Mr Jones' expense. The remaining daughter stayed in the Philippines to care for the applicant's mother. The application was refused and the applicant sought review by the Migration Internal Review Office. The decision was affirmed and in consequence she lodged an application for review by the Immigration Review Tribunal ("the Tribunal"). There again, she was unsuccessful and the decision under review was affirmed by the Tribunal. It is in these circumstances that Mrs Jones applies to the Court, pursuant to the provisions of the ini i ecision Ju Review) Act (1977) (Cth) ("the ADJR Act") for judicial review of the Tribunal's decision. The application for review was made on three basic grounds. The first, founded upon ss.5(1)(e) and 5(2)(a) of the ADJR Act, alleged that the decision was an improper exercise of power in that the Tribunal took into account irrelevant considerations. The second, founded upon ss.5(1)(e) and 5(2)(b) of the ADJR Act, was that the decision was an improper exercise of power in that the Tribunal failed to take into account relevant considerations. The final ground, based upon ss.5(1)(e) and 5(2)(g) of the ADJR Act, was that the decision was an improper exercise of power in that it was so unreasonable that no reasonable decision-maker could have come to it. Before dealing with the various matters encompassed in each of the grounds, it is necessary to summarise the reasons for decision advanced by the Tribunal. The issue before the Tribunal, as the parties before me agreed, was whether Mrs Jones satisfied the prescribed criteria contained in reg.126 of the Migration Regulations 1989 (Cth), which were subsequently replaced by the Migration (1993) Regulations (Cth) which came into effect on 1 February 1993. The saving provisions of the latter Regulations ensure that the Regulations which they replaced continued to apply to a review of a decision on an application lodged, as the present application was, before 1 February 1993. The relevant criteria reads as follows: "(1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application for the permit is decided: (a) the applicant: (i) is the spouse of: (A) an Australian citizen; or (B) an Australian permanent resident; who (C) was the spouse of the applicant when the application was made; and (D) nominated the applicant for grant of the entry permit; and (E) has a marital relationship with the applicant that is genuine and continuing; and (ii) is not an illegal entrant, other than: (A) a prescribed applicant referred to in paragraph 42(1C)(a), (b), (ba), (c¢) or (ca); or (B) a person who, before becoming an illegal entrant, entered Australia as an exempt non-citizen referred to in paragraph (bd) or (e) of the definition of 'exempt non- citizen' in subsection 4(1) of the Act; and (iii) aif the applicant has dependent children - all such children (whether or not accompanying the applicant) satisfy: (A) the public interest criteria that are applicable; and (B) the prescribed health criteria specified in item 10 in Schedule 1;". Regulation 2(1) defines "spouse" as meaning: "(a) a person who has entered into a marriage recognised as valid for the purposes of the Act, where: (i) the marriage has not been ended by divorce or the death of one of the parties; and (ii) the parties are not living separately and apart on a permanent basis; ...". Before the Tribunal, oral evidence was given by the applicant, Mr Jones, Rose Peters, a Mr Raymond Mundy and the mother of Mr Mundy, Mrs Agnes Mundy. The applicant was assisted by an interpreter. Also in evidence was certain written material. Of the oral evidence, the Tribunal said: "The Tribunal did not find the evidence of the various witnesses to be reliable. Mr Jones' evidence was vague and evasive and on various occasions, he has had to refer to his wife before he answered the questions put to him by the fribunal. Mr Mundy suffers from a severe psychiatric condition as indicated by a medical report he had tendered at the outset of the hearing. Although he was a co-operative witness, he soon became anxious' and confused. The Applicant's and her sister's evidence was in the main inconsistent particularly in relation to the circumstances surrounding the Applicant's and her husband's first meeting. The Tribunal did not find them to be credible witnesses." The Tribunal then proceeded to summarise what the applicant had told the Tribunal about the circumstances in which the applicant and Mr Jones has first met and contrasted that with the somewhat conflicting evidence of Mrs Peters on the same subject matter. The Tribunal narrated how the applicant and Mr Jones had moved into the home. of Mr and Mrs Peters, with Mr Jones' house initially being rented out and subsequently sold. It was under these circumstances that the relationship between the applicant and her sister then undoubtedly soured. One explanation, as given by the applicant, was that Mrs Peters made frequent demands for money from Mr Jones. Whatever the cause, ultimately the applicant had to take a restraining order out against her sister to ensure that the sister did not approach Mr Jones. The Tribunal then turned to the relationship between the applicant and Mr Mundy, the two having met sometime in April 1993. It contrasted the evidence given by the applicant that the two had met at a shopping centre in Mandurah, south of Perth and that the applicant and Mr Jones had moved into Mr Mundy's house the following month, with the notes of an interview given by Mr Jones in which Mr Jones had said that the applicant had advertised in a newspaper "for a younger man" and in consequence had met Mr Mundy. Mr Jones when asked about the relationship between his wife and Mr Mundy replied that they slept in the same room after moving in together. According to the notes referred to above, when Mr Jones was asked whether he had had a sexual relationship with his wife he replied: "No, never, she has a relationship with Mr Mundy." He said that whilst the applicant looked after him by cooking and washing, she spent her evenings with Mr Mundy. The Tribunal also noted that while at the hearing the applicant denied ever having had sexual relations with Mr Mundy, she had, in an interview when confronted with comments which the interviewer told her her husband had made, denied them but said: "... Only one time. Not all the time." The Tribunal then proceeded to discuss the test to be applied in determining whether, in accordance with the criteria, the relationship between Mr Jones and the applicant was one that was "genuine and continuing". In doing so the Tribunal correctly noted what had been said in R v Cahill [1978] 2 NSWLR 453, that people enter into marriage relationships for a variety of reasons, some of which may not conform to community expectations. It accepted that this was not necessarily inconsistent with a genuine marriage relationship. Correctly the Tribunal expressed the law in terms of the test set out in the judgment of the full court of this Court (Northrop, Wilcox and French JJ) in Minister of Dhillon (8 May 1990, unreported, at 10-11) where their Honours, after commenting that it was not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as, for example, with the hope of becoming eligible to reside in the country, said: had to "The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others." After a discussion of the need that the applicant satisfy the Tribunal that the relationship was genuine and continuing one, the Tribunal said: "When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left ina state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. In this instance, having considered the evidence of the various witnesses as well as the evidence contained in the file, the Tribunal is unable to reach the finding that on the balance of probabilities, the relationship between the Applicant and Mr Jones is a 'genuine and continuing' one as required under subregulation 126(1)(aj)(i)(E). Given the inconsistencies in the evidence of the various witnesses the Tribunal is still in a state of uncertainty as to the standing of the relationship. Whilst the Applicant's motive for marrying Mr Jones primarily for the sake of gaining permanent residence is not on its own determinative of the issue, when considered in light of the other circumstances the evidence is clearly deficient in disclosing a mutual commitment to a share life to _ the exclusion of others. Given that the Applicant has failed to meet one of the relevant prescribed criteria, she is accordingly not entitled to a spouse EETEP." a e the j took into account irrelev id : The irrelevant considerations said to have been taken into account by the Tribunal may be summarised as follows: * perceived inconsistencies of evidence between witnesses; * perceived inconsistencies between the evidence of witnesses and earlier statements by those witnesses to departmental officers; * the applicant's motives for marrying Mr Jones in October 1991; * the circumstances surrounding the proposal by Mr Jones and the applicant's acceptance of that proposal in October 1991; * the absence of a sexual relationship between the applicant and Mr Jones; * the relationship between the applicant and Mrs Peters. The first two supposed irrelevant factors can be dealt with together. The ultimate issue for the Tribunal was whether the relationship between the applicant and Mr Jones was a marital relationship which was genuine and continuing. The applicant's case, before the Tribunal, was that it was. She sought to support her case with the testimony of her husband. Both she and her husband were questioned by the Tribunal as to the circumstances in which they met, their sleeping arrangements and generally their way of life and relations with others. Conflicting evidence among various witnesses or, for that matter, between the testimony of a witness at one time and the testimony of the same witness at another will bear upon whether ultimately the Tribunal accepts the testimony of a particular witness. The present was such a case and a review of the transcript of evidence which was tendered before me makes it abundantly clear (much of the evidence being conflicting and jumbled) that the Tribunal was entitled to form the view that it was unable to determine who to believe. Particularly, it was unable to determine whether to believe the assertions of the applicant about the quality of the marital relationship. The events the subject of the conflicting testimony were not of themselves necessarily important. For example, it was perhaps not really important whether the applicant first met Mr Jones as a result of a newspaper advertisement which Mr Jones had placed in mid-1991 or whether they had in fact met, as Mrs Peters deposed, during the applicant's first visit in 1988. Mrs Peters could not recall any newspaper advertisement at all. This gave rise, ultimately, to the Tribunal failing to reach a conclusion, on the balance of probabilities, that the marital relationship was genuine and continuing. In the course of argument reference was made to Rhillon's case and in particular the following passage (at 8- 9) where the Court had said: -11- "Mere conflict in the statements made by Mrs Dhillon and her friends upon the question whether the marriage was contrived could not cut down the claim of a genuine marriage. That claim could only be cut down by a finding that, when it was entered into, the marriage 'was contrived to secure permanent residence status' for Mr Dhillon." The comments made in that case must, however, be seen in the context of the matter for decision. In that case the decision-maker had referred, in his statement of reasons made under s.13 of the ADJR Act, to evidence which tended to suggest that the marriage there in question was ongoing. However, the decision-maker, in his reasons, did not indicate whether the evidence was accepted. Indeed, one of the complaints made against the decision was that the decision- maker had really made no findings at all as to crucial matters. He proceeded from inconsistencies and conflicting statements to the conclusion that the marriage was contrived to obtain a visa. Thus, their Honours said (at 9-10): "It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to' an applicant by reference to conflicting - 12 - evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did." While it is possible to be critical of the Tribunal's decision in the present case, particularly having regard to the lack of found facts, that is not a matter upon which the applicant relies. Rather, it is accepted that the Tribunal's comments in their reasons on matters such as onus of proof were correct and that the Tribunal could, if unable to accept the evidence of any witness, properly conclude that the applicant should fail. It was next submitted that the applicant's motives for marrying Mr Jones in October 1991 were irrelevant. With respect, this is not so. While it is true that the ultimate issue was the status of the marriage, particularly at the time of the review, the circumstances in which the applicant met Mr Jones and her motives for marrying him, were clearly not irrelevant matters for the Tribunal to take into account. Of course, much could change between the time of the marriage and the time of the review. A marital relationship entered into solely to obtain Australian residency, might, for example, blossom into one which is genuine and continuing. Whether that was the case here was a matter for the Tribunal, not for me. But in arriving at its conclusion, the Tribunal did not - 13- err in taking into account the situation in October 1991 at which time, according to the applicant herself, she had met Mr Jones at the urging of her sister and brother-in-law and in the context of wanting to stay in Australia. The same can be said as to the circumstances surrounding the proposal and acceptance by the applicant of Mr Jones' proposal in or around October 1991. It is simply not true to say that this bears no relationship to the question of the standing of the marital relationship at the time of the hearing. It is part of the historical factual matrix to be taken into account. Nor can it be said that the Tribunal erred in taking into account the absence of a sexual relationship between the applicant and Mr Jones. There was evidence that it was difficult for Mr Jones to have sex because, inter alia, of a back condition. The applicant said that she was not looking for sex and that Mr Jones was looking for companionship. Her evidence, which, clearly if accepted, would have been strongly in her favour, appears sufficiently in the following passage from the transcript to which the applicant's counsel made reference: "MRS JONES: I tried for one month but I said to Harry: I'm not looking sex, it's all right because I'm not a sexy woman. It's all right because I want to see you - 14 - alive and strong. [It's all right to me. That's why I don't need sex. MRS FADJIAR: So, you told him that it doesn't matter. MRS JONES: Yes, it doesn't matter because for 2 years - I love Harry now. I love too much Harry. I look after him for 2 years. If I - If I don't love Harry I leave him because - I leave him because he's old already and I'm young, but I said to Harry: It's all right, just you strong and you stay alive, I still with you, I look after you until you die." The difficulty that stood in the way of the applicant was that the Tribunal felt itself unable to accept her evidence. There is nothing in the reasons of the Tribunal that suggest that the Tribunal in any way misinterpreted the law. There is nothing to suggest that the Tribunal was of the view that it was essential to a genuine and continuing marital relationship that there be a sexual relationship. The final matter said to be irrelevant was the relationship between the applicant and her sister. It was submitted that there was a preoccupation with the relationship which was out of all proportion to its significance in the context before the Tribunal. Again, with respect, I can not accept this submission. The relationship between the applicant and her sister was of relevance in ruling on the applicant's credit because there were significant discrepancies between the two. Further, having regard to the manner in which the applicant met Mr Jones and the fact that they had all lived with the sister, made the relationship between the applicant and the sister part of the background against which to assess the marital relationship. This was particularly so having regard to allegations that the sister had systematically taken money from Mr Jones and allegedly gambled much of it away. Whether the Tribunal failed to take into account relevant matters In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-6) 162 CLR 24 at 39-40, Mason J set out, in proposition form, principles taken from the decided cases on this ground. I do not need to repeat the quotation, save to point out that what is to constitute a relevant factor must be determined by implication from the subject matter, scope and purpose of the legislation in question. The relevant matters said by counsel for the applicant to have been omitted from consideration can be summarised as follows: * the relationship between the applicant and Mr Jones; * the evidence of Mr Mundy and Mr Mundy's daughter in relation to the sleeping arrangements in Mr Mundy's home; * the evidence of Mr Jones and Mr Mundy in relation to the applicant's alleged sexual relation with Mr Mundy and the explanation of her use of the term "sleep"; - 16 - * a file note dated 14 October 1992 of three interviews conducted; * the ramification of the decision particularly on Mr Jones and the community. The matters relevant to the relationship between the applicant and Mr Jones, said not to have been taken into account, were listed as follows: "(a) (b) (c) (a) (e) (f) (g) With the stated companionship between the Applicant and Mr Jones; the stated love of the Applicant for Mr Jones; the stated value the Applicant attributes to the relationship between Mr Jones and daughter; the stated intention of the Applicant to continue to reside with Mr Jones as his wife until his death; the stated intention of Mr Jones to continue to reside with the Applicant as her husband until his death; the stated fact that since arriving in Australia the Applicant has resided with Mr Jones and taken care of his welfare and health needs on a full time basis; the stated fact that the Applicant and Mr Jones have three joint bank accounts." respect, the submission assumes that an assertion made by the applicant is a relevant factor which must be taken into account even where the applicant's evidence is rejected. No doubt the submission was framed as 1t was to avoid the obvious difficulty that it is for the Tribunal to determine facts not for this Court. What the submission largely amounts to is the proposition that the Tribunal did not act in accordance with law because it did not accept the evidence of the applicant. It seems to me that once the applicant's evidence was not accepted on matters such as, for example, her love for her husband, it can no longer be said that the Tribunal, in not accepting that evidence, failed to take into account as a relevant consideration some aspect of that evidence. It is true that in various passages in the transcript the applicant and Mr Jones expressed the emphasis that they put on companionship between them, their stated love for each other, the value which the applicant said she attributed to the relationship between Mr Jones and the applicant's daughter and matters of that kind. But once evidence is not accepted, it can hardly be held to be a relevant factor. I should say that the fact, if it were a fact, that the applicant and Mr Jones together had three joint bank accounts, would seem, if relevant at all, to be so marginal as not to affect the decision. - 18 - The same comments could be made about the next two factors said to be relevant but not taken into account, namely, evidence concerning the sleeping arrangements in Mr Mundy's house and evidence concerning an alleged sexual relationship between the applicant and Mr Mundy and the applicant's explanation of her evidence. Mr Jones gave evidence before the Tribunal that was consistent with the fact that no sexual relationship existed between the applicant and Mr Mundy. The applicant sought to explain what she had said in an earlier interview with an officer of Department of Immigration as a misunderstanding. She said she had been asked: "Did you sleep with Mr Mundy? and that she had replied: "Yes, but not sex, just to sleep, because my daughter sleep with me how can I make sex to Mr Mundy." The problem is, as with the other matters referred to earlier, that which is said by a witness will only be treated as a fact and thereby capable of giving rise to a relevant or irrelevant matter, if the witness is believed. Here, it seems, none of the witnesses were believed and for that reason these submissions can not avail the applicant. It was submitted for the applicant that the Tribunal had failed to take into account file notes of interviews conducted in 1992. The officer conducting the interviews saw the applicant and Mr Jones and indicated that their answers to questions were consistent. He concluded that they were "close and intimate", although he did not believe that it was a "love" relationship in the classic sense. On balance that particular decision-maker found the relationship to be genuine and continuing. While no doubt it would be appropriate for the Tribunal to take into account some parts of the file note to which reference has been made, it was for the Tribunal itself to determine whether the relationship was genuine and continuing. It was not for the Tribunal merely to follow the view taken by some interviewer in the past. Nor was there much relevance in the fact that that interviewer formed the view that answers given were consistent when the answers were not consistent in the proceedings before the Tribunal or contradicted other answers given in the past. In my view, in so far as it is possible to describe the file note as being a matter, it was of no real relevance such that the Tribunal was obliged to take it into account in making its decision. The final matter under this ground concerns the ramifications of the decision in relation to Mr Jones and the community at large. With respect this submission, also, is misguided. The issue which the Tribunal addressed and which was posed for it by the criteria contained in the Regulations, was whether the marital relationship was genuine and continuing. It may be assumed that Mr Jones, having regard to his age and health was in need of a caretaker and housekeeper. It may well be the case that if the applicant be deported that fact would cause hardship to Mr Jones. But that bears not at all upon the question of whether the relationship between the applicant and Mr Jones satisfied the statutory criteria. It could well be a relevant matter in the exercise by a decision-maker of a residual discretion to grant a visa, but no such residual discretion arose in the determination whether the applicant satisfied the relevant criteria. The same must necessarily be said of a submission that deportation might have consequences to the community in that Mr Jones might become a burden to the community. This would seem particularly to be the case having regard to the fact that since meeting the applicant he has lost what seems to have been his sole asset, namely, his home. But that fact likewise tells nothing of the status of the relationship between the applicant and him. Was the decision unreasonable? The submissions on behalf of the applicant did not seek to elaborate separately on this ground. While it was asserted that the decision was manifestly unreasonable and well "outside the 'middle ground' of opinion and judgment" (cf McPhee v Minister of State for Immigration, Loca] Government and Ethnic Affairs (Lee J, 23 August 1988, unreported) (at 38), the real gravamen of the attack was that the Tribunal had not in reality taken into account the supposed relevant factors which had previously enumerated on behalf of the applicant or had not afforded those factors appropriate weight. In Peko-Wallsend Mason J (at 41) made it clear that there may be circumstances where a court may set aside an administrative decision because that decision has failed to give "adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance". His Honour, however, prefaced those remarks with the comment that it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to a particular matter. In approaching the submissions on this ground I note in particular the admonition of Mason J (at 42): ",.. in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits." In the present case one may ask rhetorically what weight may be given to a particular piece of evidence adduced in oral testimony where the decision-maker has formed the view that the witness' evidence can not be trusted. The question answers itself and the submission. It follows that the applicant has made out none of the grounds in its application and accordingly the application must be dismissed with costs. Before concluding this judgment, however, I should repeat that it may be possible to criticise the Tribunal's reasons for decision on the basis that the Tribunal failed to make proper findings of fact. It must be a rare case indeed where a Tribunal, conducting an administrative review, forms the view that none of the witnesses before it can be relied upon with the result that the Tribunal is unable to reach any conclusion at all on a matter essentially of fact. This was not, however, as I have already indicated, a submission explored in argument on behalf of the applicant and accordingly it would be inappropriate for me to comment further upon it. I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Hill. Associate: Date: 9 - 23 - Counsel and Solicitors N Mullany instructed by for Applicant: Peter J Griffin & Co Counsel and Solicitors S Bhjoni instructed by for Respondent: Australian Government Solicitor Dates of Hearing: 2 November 1994 Date Judgment Delivered: 9 December 1994