Thiem v Minister for Immigration & Multicultural Affairs [2000] FCA 1909

FEDERAL COURT OF AUSTRALIA

Thiem v Minister for Immigration & Multicultural Affairs [2000] FCA 1909 IMMIGRATION – whether Tribunal failed to address evidence of applicant's mother

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 referred to Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 followed Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed HIENG THIEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 320 OF 2000 BEAUMONT J 21 DECEMBER 2000 SYDNEY

THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 320 OF 2000

BETWEEN: HIENG THIEM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 21 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 320 OF 2000

BETWEEN: HIENG THIEM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 21 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION 1 Sovanny Ngin, a Cambodian national, applied to the Minister for a Spouse (Provisional) (Class UF) Subclass 309 visa. Regulation 1.15A of the Migration Regulations 1994 ("the Regulations") is used to determine whether an applicant is a spouse of an Australian citizen. (Hieng Thiem, the applicant in this proceeding, is an Australian citizen). Relevantly, Reg. 1.15A provides: "(1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis." 2 Regulation 1.15A(3) provides that in forming an opinion whether two persons are in a married relationship, the Minister must have regard to all of the circumstances of the relationship, including in particular: " (a) the financial aspects of the relationship, including; (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married …; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; (iii) any basis on which the persons plan and undertake joint social activities; (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one." 3 The Minister's delegate refused Ms Ngin's application. Mr Thiem sought Tribunal review of that decision. The Migration Review Tribunal decided to affirm the Minister's decision that Ms Ngin was not entitled to the grant of a visa. Mr Thiem now seeks judicial review of the Tribunal's decision. 4 In order to understand the nature of the issues that arise in the proceedings, it will be necessary to refer to the Tribunal's reasons for decision.