Neofotistou v Minister for Immigration and Multicultural [2005] FCA 919 (26 June 2005)

Last Updated: 7 July 2005

FEDERAL COURT OF AUSTRALIA

Neofotistou v Minister for Immigration and Multicultural

and Indigenous Affairs [2005] FCA 919

KONSTANTINA NEOFOTISTOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1310 OF 2004

NORTH J
26 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1310 OF 2004

BETWEEN:	KONSTANTINA NEOFOTISTOU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Federal Magistrate of 29 September 2004 is set aside.

2. The decision of the Migration Review Tribunal of 19 June 2003 is set aside.

3.	The matter is remitted to the Migration Review Tribunal for rehearing in accordance with these reasons.

4.	The respondent is to pay the appellant’s costs of the proceedings before the Federal Magistrates Court and the costs of this appeal.

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	VID 1310 OF 2004

BETWEEN:	KONSTANTINA NEOFOTISTOU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	26 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Before the Court is an appeal from the decision of a Federal Magistrate delivered on 29 September 2004. The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal (the Tribunal) delivered on 19 June 2003. The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, that the appellant was not entitled to an Extended Eligibility (Temporary) (Class TK) visa or a General (Residence) (Class AS) visa, which together I will refer to hereafter as the spouse visa. On 23 May 2005 the Chief Justice determined pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal would be heard by a single judge.

2 The appellant is a Greek national who arrived in Australia on a Temporary Entry (Entertainer) visa on 31 August 1991 to take up employment as a singer. The sponsor of this visa was Stilianos Stamatakis, a nightclub manager. Mr Stamatakis collected the appellant at the airport and she went home with him. She claimed that a de facto relationship began two weeks later. On 14 April 1992, four days before her existing visa was to expire, the appellant applied for an Extended Eligibility (Spouse) entry permit and a permanent entry permit.

THE LEGISLATIVE FRAMEWORK

3 The Migration Reform (Transitional Provisions) Regulations 1994 came into effect on 1 September 1994. The effect of reg 23 of those regulations was that the appellant’s application for the Extended Eligibility (Spouse) entry permit had effect as an application for an Extended Eligibility (Temporary) (Class TK) visa, while the permanent entry permit application had effect as an application for a General (Residence) (Class AS) visa. Furthermore, reg 23(3) relevantly provided that the criteria to be applied in assessing the appellant’s application were those that existed at the time the application was made, namely 14 April 1992.

4 The criteria which applied at 14 April 1992 were contained in the Migration Regulations 1989 (Cth) (Migration Regulations), relevant excerpts of which are set out below. Regulation 126 of Part 3 of the Migration Regulations provided:

Extended eligibility (spouse) entry permit
(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 ...

Regulation 2 of Part 1 of the Migration Regulations provided:
"spouse" means:

(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; or

(b) a de facto spouse...

Regulation 3A of Part 1 of the Migration Regulations provided:
Interpretation – de facto spouse

(1) For the purpose of these Regulations, a person is the de facto spouse of another person if, at the time when an application for a visa or entry permit is made by either of the persons, they:

(a) have lived together, for the whole of the immediately preceding 6 months (or such lesser period as is specified in particular case, under subregulation (2)), on a genuinely domestic basis as spouses without being legally married to each other; and
(b) are not the same sex.

(2) For the purposes of subregulation (1), the Minister may, on written application, specify a period of less than 6 months if the Minister is satisfied that:

(a) there are exceptional circumstances affecting the persons; and
(b) there are compelling reasons for specifying that lesser period.

THE DE FACTO SPOUSE ISSUE

5 The Tribunal determined that the appellant and Mr Stamatakis, who nominated the appellant for the spouse visa (the nominator), did not live together on a genuinely domestic basis as spouses between 14 October 1991 and 14 April 1992, and hence the appellant was not a de facto spouse within the meaning of reg 3A. The Federal Magistrate upheld this reasoning. On this appeal, the appellant contended that the Federal Magistrate should have held that the Tribunal erroneously construed the definition of de facto spouse by imposing a requirement that such a relationship needed to be permanent. The Tribunal, it was submitted, thereby fell into jurisdictional error.

6 The Tribunal posed for itself the appropriate question, namely, whether the parties lived together on a genuinely domestic basis as spouses between 14 October 1991 and 14 April 1992. It commenced by examining documentary evidence, including correspondence from real estate agents, rent receipts, leases and utility statements. It concluded at [59]:

Whilst the Tribunal accepts that it may be difficult for any person to recall in detail their living arrangements more than a decade later, the numerous inconsistencies between the documentary evidence and the parties’ recollections create a very uncertain picture in this case.

7 The Tribunal then continued:

However, even if the Tribunal were to accept that the parties shared a house from September 1991 until the date of application, it must also be satisfied that they did so on a genuinely domestic basis.

60. The Tribunal notes that the review applicant’s employer in 1991, Mr Tangalakis, stated only that the parties "had a relationship" at that time. Both parties stated that they had a physical relationship from about two weeks after the review applicant’s arrival in Australia, and that they both "shared everything". In her statutory declaration of 26 March 2003 the review applicant stated that after a few months they "agreed to continue a de facto relationship" and the nominator stated in his statutory declaration of the same date that "after about six months we decided to have a continuous de facto relationship". The Tribunal sought further explanation of the language of the statutory declarations at the review applicant’s hearing. Despite the parties’ equivocal responses in relation to the truth of their statutory declarations, they both concluded by saying that the declarations were a true account of the relationship in 1991 and 1992. They stated variously that they became "husband and wife" after a few months, that they did not see the relationship as "permanent" until March 1992 and that it was a "trial" arrangement until that time.

61. The definitions of de facto spouse and spouse which applied at the time of application do not contain a list of considerations to assist in determining whether a visa applicant is a de facto spouse. The Tribunal notes, however, that the definition of spouse requires that the applicant has entered into a valid marriage. The Tribunal finds that a marriage connotes a degree of permanency, that is, that the marriage relationship is intended to be permanent, at least at the time in which it is entered into. The Tribunal finds that a de facto relationship under the regulations requires a similar degree of permanency. That is, when a de facto relationship commences it is intended by both parties to be a permanent relationship. The Tribunal takes into account the statutory declarations and oral evidence provided by the parties and finds that, for the first few months of their relationship in late 1991, they were not committed to a permanent relationship of the type contemplated by the regulations. Having found that the parties’ relationship did not assume any permanency until the end of 1991 or early 1992, the Tribunal can not be satisfied that they lived together on a genuinely domestic basis for the whole of the six months preceding the date of application on 14 April 1992.

8 Mr Niall, who appeared as counsel for the appellant, contended that the correct approach for the Tribunal to adopt in determining whether the appellant was a de facto spouse was to consider the indicia of such a relationship as identified in cases such as Roy v Sturgeon (1986) 11 NSWLR 454 (Roy v Sturgeon). These indicia included the duration of the relationship, the nature and extent of the common residence, whether or not a sexual relationship existed, the degree of financial interdependence and any arrangement for support between or by the parties, the ownership, use and acquisition of property, the procreation of children, the care and support of children, the performance of household duties, the degree of mutual commitment and mutual support, and reputation and public aspects of the relationship.

9 Mr Niall pointed out that the notion of permanency was not referred to in the Migration Regulations or in the cases. He argued that the requirement of permanency in the sense used by the Tribunal required the Tribunal to predict whether the relationship would last forever. Such a requirement could not have been intended, he said, because reg 126(1)(a)(i)(E) specifies that the relationship must be continuing at the time of decision, and that requirement must be the entire content of the specification of the duration of the relationship.

10 The difficulty with the concept of de facto spouse is that it is a conclusory definition: Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011 at [22]. It requires the exercise of a value judgment: Roy v Surgeon at 458 per Powell J. In Re RC and Director-General of Social Services (1981) 3 ALD 334, the Administrative Appeals Tribunal said at 348:

Because of the infinite variety of circumstances in which husbands and wives live together, it is impracticable to lay down specific criteria which can be applied to identify the specified relationship. It is a relationship which is recognisable but which is so varied that it is not susceptible of definition by criteria.

11 The Tribunal referred to the evidence of the appellant and the nominator about their views of their relationship in the first six months. The notion of permanency came from their own evidence. They expressed the state of permanency as a contrast to the trial period of their relationship which they said lasted until about March 1992. For instance, the Tribunal stated at [45]:

... He [the nominator] stated that he and the review applicant waited a few months to assess the relationship before deciding in 1992 that they wanted to remain together and eventually marry. The nominator stated that the review applicant did not apply for permanent residence before April 1992 because they were not sure that the relationship would be permanent. He stated that they began a relationship only a short time after the review applicant arrived in Australia, sharing a room and all household responsibilities, but it did not become a serious relationship until a few months later. (emphasis added)

12 Later the Tribunal stated at [47]:

The nominator stated that his statutory declaration of 26 March 2003 is correct. He stated that he and the review applicant had lived together for six months prior to the date of application, but they had not decided to make it a permanent relationship until March 2002. He stated that they had shared all the responsibilities of living together from two weeks after the review applicant arrived in Australia, and had done everything as a couple, but he considered that the first six months was a trial period to determine whether they were suited to each other. (emphasis added)

13 The statutory declaration sworn by Steve Stamatakis on 26 March 2003 was in stark terms. It stated:

2. ... we became friends in about September, 1991 and after approximately six months we decided to have a continuous de facto relationship which continued until the day of our marriage on 30^th day of January, 2003 last.

14 The Tribunal took this evidence to be a reflection by the appellant and the nominator on their mutual commitment to each other. It made a value judgment from this evidence about the parties’ commitment to each other. It found that the commitment fell short of that necessary for the appellant to be a de facto spouse.

15 The choice of language used by the Tribunal is a little confusing. It speaks of a requirement under the regulations of ‘a degree of permanency’; but permanency is not subject to degrees. It is a state, like pregnancy, which either exists or does not. ‘Permanent’ refers to a fixed period, namely, forever. One cannot have a relationship which is partly forever. The Tribunal used the expression ‘permanent’ to indicate a level of commitment of the parties to each other and, of course, commitment is a concept which can be assessed by reference to degree.

16 In the context of the discussion by the Tribunal and the evidence to which it referred, it is clear enough that the Tribunal concluded that the parties lacked the mutual commitment to each other which is recognised in the cases, such as Roy v Sturgeon, as a signifier of a spousal relationship. In relation to marriage, in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 200, the Court said that the test is whether the parties ‘have a mutual commitment to a shared life as husband and wife to the exclusion of all others’.

17 It is noteworthy that in the Migration Regulations 1994 (Cth), which would apply to an application made today, the Minister is required to have regard to all of the circumstances of the relationship in determining whether to grant a spouse visa, and the regulations list the mandatory circumstances to which regard must be had. Those circumstances include ‘whether the persons see the relationship as a long-term one’.

18 When the reasoning of the Tribunal is understood in this way, it can be seen that the Tribunal was engaged in a process of assessing whether, on the evidence before it, there was sufficient commitment by the appellant to the nominator to qualify her as a de facto spouse within the meaning of the regulations. The Tribunal did not make permanency a prerequisite for its finding that she was a de facto spouse. When it determined that there was insufficient commitment of the parties, it made a finding of fact relevant to the issue, and hence within its jurisdiction. There was no jurisdictional error in the approach of the Tribunal on this issue.

THE EXCEPTIONAL CIRCUMSTANCES AND COMPELLING REASONS ISSUE

19 In relation to the question under reg 3A(2)(ii), the Tribunal said at [62]:

The Tribunal is entitled to take into account whether exceptional circumstances and compelling reasons exist to justify specifying a period of cohabitation of less than six months. Although the regulations specified that consideration of a lesser period of cohabitation may be made only after a written application, the Tribunal will determine whether such circumstances exist on the basis of all of the evidence provided by the review applicant. The Tribunal finds that a reduction of the cohabitation period is a time of application consideration and finds, therefore, that any exceptional circumstances or compelling reasons should also have applied at the time of application. The parties were unable to provide any evidence of exceptional circumstances or compelling reasons which applied at the time of application. The Tribunal finds, therefore, that there are no reasons to justify a reduction in the cohabitation period required for a de facto spouse at the time of application.

20 The Federal Magistrate upheld this approach. On appeal the appellant argued that the Federal Magistrate erred because the exceptional circumstances and compelling reasons are to be assessed by reference to the facts as they exist at the date of decision.

21 Mr Gray, who appeared as counsel for the respondent, argued that regs 3A(1) and (2) should be seen as a single provision. As the existence of the period of cohabitation is expressly to be assessed at the date of application, so too is the existence of exceptional circumstances and compelling reasons to be assessed on the basis of the facts existing as at the time of application. He contended that there is a dichotomy in the regulations between the assessment of matters on the state of affairs as they exist at the time of the application and as they exist at the time of decision. As the time of application is specified in reg 3A(1) and was intended to apply to reg 3A(2), there was no need to repeat that requirement in the latter sub-regulation.

22 Mr Gray argued that there was a policy reason for this construction. There was a need for certainty in the determination of the six-month period of cohabitation, and if facts which occurred after the date of application could be taken into account in deciding whether to shorten the period, there would be less certainty and the reason for specifying a defined period would be undermined.

23 I do not accept the construction contended for by the respondent. There is nothing in reg 3A(2) which requires the assessment of exceptional circumstances and compelling reasons for shortening the requirement of the six-month period of cohabitation to occur on the state of facts at the time of the application.

24 In this respect, reg 3A(2) contrasts with reg 3A(1), which expressly requires that the six-month period of cohabitation exist at the time when the application is made. The express reference to the time of application in reg 3A(1), and the absence of such reference in reg 3A(2), indicates that the time of application requirement does not apply in the consideration of the matters the subject of reg 3A(2). This construction is supported by the likelihood that the decision-maker would be intended to determine the issues on the basis of the state of affairs which exist at the time the decision is made, rather than on the basis of a state of affairs which existed at an earlier time. It is not to be assumed that a decision-maker is to ignore the current state of affairs, unless the legislation expressly requires such an exercise to be undertaken.

25 Further, reg 3A(2) deals with exceptional circumstances and compelling reasons which might justify modifying the strict time for cohabitation required by reg 3A(1). By its subject matter, it is an ameliorating provision. That suggests that it should be given an expansive, rather than a restrictive, meaning.

26 Finally, in relation to the question of the alleged uncertainty resulting from the appellant’s interpretation, it must be recognised that there is inherent uncertainty in the application of a wide discretion which depends on an assessment of exceptional circumstances and compelling reasons. Any additional uncertainty resulting from applying the assessment on the facts as they exist at the time of decision, rather than on the state of facts as they exist at the time of the application, is insufficient to outweigh the intended ameliorating purpose of the regulation.

27 The present case presents a potentially stark example of the absurd results which would flow from accepting the respondent’s interpretation. The time between the lodging of the visa application and the decision of the Tribunal was about 11 years. By the time of the Tribunal decision, the appellant and the nominator had been living together for more than 11 years and had married in the meantime. On the face of it, the circumstance that it has taken 11 years to determine the application is exceptional, and the apparent continuance of the relationship is a compelling reason in favour of shortening the six-month requirement 11 years ago to four months or thereabouts. If the respondent is correct, these arguably exceptional circumstances and arguably compelling reasons cannot be taken into account. Obviously, in giving this illustration, I have made assumptions about the circumstances of the case which have yet to be explored. That will be the task of the Tribunal when it rehears the matter. These observations cannot bind the Tribunal in that task. They are made for the purpose of illustrating a possible unjust and unreasonable operation of the regulation if the respondent’s construction is adopted.

28 For these reasons, the Federal Magistrate erred in failing to hold that the Tribunal misconstrued reg 3A(2). The exceptional circumstances and compelling reasons are to be assessed on the state of facts at the time of the decision. The matter must be remitted for rehearing in accordance with these reasons.

29 Finally, the Tribunal said at [64]:

The Tribunal notes that the delegate also refused the visa on the basis that the review applicant had not provided the necessary health and character checks. The review applicant has provided evidence that she has undertaken some health checks, and has applied for a police check, but the Tribunal is not in a position to determine whether she satisfies those criteria.

30 It is undesirable for the Tribunal to refuse to determine all of the issues before it. If the appellant fails to satisfy the health and character checks, the appeal to the Federal Magistrate and thence to this Court would have been unnecessary. The structure which allows for challenges through a hierarchy of appeals suggests that at the final merits review stage the Tribunal should deal with all the elements before it, unless perhaps there is a clear binding authority which makes it obvious that the application must fail on a single issue. That was not done in this case. It is to be hoped that the failure of the Tribunal to determine whether the appellant satisfied all of the necessary requirements has not prolonged this litigation even further.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:


Dated: 7 July 2005

Counsel for the Applicant:	R Niall with M Belmar
Solicitor for the Applicant:	Victor Tse and Associates
Counsel for the Respondent:	P Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 May 2005
Date of Judgment:	26 May 2005