FEDERAL COURT OF AUSTRALIA Graham v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1287 MIGRATION – Migration Review Tribunal -application for writ of certiorari to quash decision of Tribunal – principles for making order by consent setting aside the decision of the Tribunal. Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 348 Migration Regulations 1994 (Cth) reg 1.15(A) Federal Court Rules O 35 r 10 Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 cited ARLENE GRAHAM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W278 OF 2002 LEE J 22 OCTOBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W278 OF 2002 BETWEEN: ARLENE GRAHAM APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 22 OCTOBER 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. A writ of certiorari be issued quashing the decision of the Migration Review Tribunal made on 28 August 2002. 2. The matter be remitted to the Tribunal to continue the review proceeding as required by section 348 of the Migration Act (Cth) 1958. 3. The respondent pay the applicant's costs as agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W278 OF 2002 BETWEEN: ARLENE GRAHAM APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE: 22 OCTOBER 2003 PLACE: PERTH REASONS FOR JUDGMENT LEE J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for a writ of certiorari to quasha decision of the Migration Review Tribunal ("the Tribunal") made on 28 August 2002, which affirmed the decision of the respondent ("the Minister") not to grant to the applicant a Partner (Temporary) (Class UK) Subclass 820 (Spouse) visa ("spouse visa") pursuant to the Migration Act 1958 (Cth) ("the Act"). 2 The applicant, a citizen of the United Kingdom, lodged the application for a spouse visa on 24 May 2001. She included her twelve-year-old daughter in her application. A criterion for the grant of the visa was, inter alia, that the applicant be the spouse of an Australian citizen and be nominated by that person. It is a requirement of that Act that that criterion be met at the time of application and at the time of decision. The applicant was nominated by a person said to be her de facto partner. On the day the application was lodged the applicant and the nominator were interviewed by an officer of the Minister's Department. 3 The applicant claimed that the de facto relationship began in February 2000. InMarch 2000 the nominator had left Australia to perform work abroad as a crane driver. He returned to Australia on 9 June 2000. 4 On 10 July 2001, the Minister, by his delegate, refused to grant a spouse visa to the applicant. On 28 August 2002 the Tribunal affirmed the Minister's decision stating that it was not satisfied that the applicant met the requirements of reg 1.15A(2)(d) of the Migration Regulations 1994 ("the Regulations"). In relevant respects reg 1.15A provided as follows: "1.15A (1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: … (b) in a de facto relationship, as described in subregulation (2). … (2) Persons are in a de facto relationship if: (a) they: (i) are of opposite sexes; and (ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and (iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and (b) they are full age, that is: (i) if either of the persons is domiciled in Australia – both of them have turned 18; or (ii) if neither of the persons is domiciled in Australia – both of them have turned 16; and (c) 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; and (d) subject to…subregulation (2A), where either of them is an applicant for a permanent visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of applications of the party relying on the existence of the relationship: (i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them was genuine and continuing; and (iii) they had: (A) been living together; or (B) not been living separately and apart on a permanent basis; … … (2A) Paragraph 2(d) does not apply if: … (b) the applicant can establish compelling and compassionate circumstances for the grant of the visa. (3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: … (ag) a Partner (Temporary) (Class UK) visa; 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 or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (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. … … … (5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason." 5 In the application, amended with leave, the applicant contends that: a) The Tribunal made a jurisdictional error in identifying the wrong issue and in asking itself the wrong question in finding that the relationship between the applicant and the nominator could not have commenced before June 2000; b) The Tribunal made a jurisdictional error and a decision not authorized by the Act by ignoring relevant material related to whether the applicant and the nominator were in a genuine and continuing de facto relationship that began not later than May 2000. c) The Tribunal erred in law finding that there was no evidence compelling and compassionate circumstances for the grant of the visas as provided by reg 1.15A(2A)(b). 6 Prior to the hearing of the application a minute of consent orders, prepared pursuant to O 35 r 10 of the Federal Court Rules, was received from the parties proposing that a writ of certiorari be issued quashing the decision of the Tribunal and that the Minister pay the applicant's costs as agreed or taxed. 7 It was not in issue that the Court had jurisdiction in the matter pursuant to s 39B of the Judiciary Act 1903 (Cth) and power to make the orders set out in the minute. 8 The Minister concedes that in considering the issue arising under reg 1.15A(2A) the Tribunal fell into error when it considered only whether the applicant's daughter was a child of the relationship between the applicant and the nominator, and failed to have regard otherwise to whether there were compelling and compassionate circumstances arising out of the relationship between the applicant, her daughter and the nominator. 9 In the circumstances described I am satisfied that the concession made is appropriate and that the Court may issue certiorari to set the decision aside. The minute of consent is an acknowledgment by the parties that ground for the issue of a writ would have been established if the proceeding had proceeded to trial. 10 I am also satisfied that it is proper to exercise the discretion of the Court to issue a writ as sought by the parties. It is apparent that the Tribunal has not carried out the task imposed upon it by s 348 of the Act. The duty remains unperformed. (See: Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron, Gummow JJ at [53]). 11 Counsel for the applicant requested that the Court direct the Tribunal as to the conduct of the hearing of the review, in particular, by directing the Tribunal that the review be continued by the Tribunal as originally constituted. 12 In the exercise of powers attached to the jurisdiction conferred by s 39B of the Judiciary Act the Court, no doubt, may make such orders as the Court deems fit in the interests of justice. The circumstances necessary for such orders do not seem to arise in the instant case. Furthermore, the consent of the parties to the making of orders does not encompass the further orders sought by the applicant. 13 Parenthetically some comments may be made on general points arising out of the reasons for decision provided by the Tribunal. In dealing with the evidence as to the date on which the relationship commenced, the Tribunal stated: "The Tribunal notes that the nominator returned from Africa on 9 June 2000. The Tribunal notes that there is practically no documentary evidence in the form of joint accounts to support the couple's claimed de facto relationship prior to June 2000. Accordingly, the Tribunal finds the couple's relationship could have commenced at the earliest in June 2000 which was less then 12 months before the visa application was lodged on 24 May 2001. Accordingly, the couple does not meet the requirements of 12 months set out in paragraph 1.15A(2)(d)." 14 There was, of course, both oral and documentary evidence as to when the relationship commenced and as to its character. All of that evidence had to be considered by the Tribunal before it could reach a conclusion as to whether there had been a continuing commitment between the parties for a period of twelve months before the application was lodged. If, as appears from the face of the reasons for decision, the Tribunal considered it essential that there be evidence of the creation of a joint account for there to be cogent evidence of the formation of a continuing commitment, the review proceeding would have miscarried and the Tribunal would have failed to consider all material relevant to that issue. 15 Furthermore, in the reasons provided the Tribunal has not set out any findings of fact on relevant matters the Tribunal had to consider pursuant to reg 1.15A(3). Perhaps the Tribunal was of the opinion that it did not have to consider those matters once it found that the relationship had not commenced before June 2000. If that were so the Tribunal may have fallen into further error for it is apparent that consideration of the matters recited in reg 1.15A(3) must be undertaken before any finding is made as to the existence and duration of a relationship relied upon by an applicant. 16 Orders will be made in terms of the minute attached to the reasons. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 13 November 2003 Counsel for the Applicant: R.E. Lindsay Solicitors for the Applicant: CGN Legal Counsel for the Respondent: J.D. Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 October 2003 Date of Judgment: 22 October 2003