Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 (3 April 2008)

MIGRATION – application for spouse visa refused for absence of genuine and continuing relationship and mutual commitment at time of visa application – permissible for Tribunal to use evidence of subsequent events to establish position as at the date when the determination was required to be made – no jurisdictional error

Migration Regulations 1994 (Cth), Regs 1.5A, 820.211, 820.221

Secretary, Department of Family and Community Services v Verney [2000] FCA 570; (2000) 60 ALD 737 discussed
Hospital Benefits Fund of WA Inc v Minister [1992] FCA 599; (1992) 39 FCR 225 discussed
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 discussed

SHUKURU ALLY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 850 OF 2007

MOORE, GOLDBERG & JACOBSON JJ
3 APRIL 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 850 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SHUKURU ALLY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	MOORE, GOLDBERG & JACOBSON JJ
DATE OF ORDER:	3 APRIL 2008
WHERE MADE:	SYDNEY

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	NSD 850 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SHUKURU ALLY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	MOORE, GOLDBERG & JACOBSON JJ
DATE:	3 APRIL 2008
PLACE:	SYDNEY

1 The appellant, Ms Shukuru Ally, is a national of Tanzania who arrived in Australia in July 1999. Nearly twelve months later, on 15 July 2000, she married Mr M P Okele, an Australian citizen who was born in the Democratic Republic of Congo. On 27 July 2000, Ms Ally applied to the Minister for a permanent spouse visa, as well as a temporary spouse visa pending the determination of her permanent residency status. Mr Okele was her nominator in the visa application.

2 The relevant provisions of the Migration Regulations 1994 (Cth) required the Minister to be satisfied not merely that Ms Ally and her nominator were legally married, but also that they had a mutual commitment to a shared life as husband and wife, and that the relationship was genuine and continuing.

3 On 23 October 2005 the Migration Review Tribunal affirmed a decision of a delegate of the Minister refusing to grant Ms Ally a temporary and a permanent spouse visa. Ms Ally failed in the Tribunal because it was not satisfied that, as at the date of the visa application, Ms Ally and her nominator had the requisite mutual commitment and that they were in a genuine and continuing relationship.

4 On 20 April 2007 Smith FM dismissed an application for judicial review of the Tribunal’s decision. Ms Ally appeals from the decision of the Federal Magistrate. She raises four grounds of appeal but the essential question is whether the Federal Magistrate erred in finding that the Tribunal was entitled to consider events subsequent to the date of the visa application in determining whether Ms Ally was the "spouse" of the nominator as at the date of the visa application.

5 Subclass 820 of the Migration Regulations sets out the criteria for eligibility for a spouse visa. Regulation 820.21 listed the criteria that were to be satisfied at the time of the application for a visa. Regulation 820.211(2) provided, inter alia, that an applicant met the requirement of this subclause if the applicant was the spouse of a person who was an Australian citizen and the applicant was nominated by that person.

6 Regulation 820.211(8) and (9) contained an exception for domestic violence. We will refer to this later.

7 An applicant for a spouse visa was bound to continue to meet these requirements at the time when the decision was made on the visa application: Reg 820.221(1)(a).

8 Provision was also made for the applicant to be able to satisfy the critieria at the time of the decision where, prior to that date, there had been relevant intervening events such as the death of the nominating spouse or the applicant had suffered domestic violence committed by the nominating spouse: Reg 820.221(1)(b).

9 The term "spouse" was defined in Reg 1.15A. Relevantly a person was a spouse of another person if the two persons were in a married relationship as described in subregulation (1A).

11 Regulation 1.15A(3) provided that, in forming an opinion whether two persons were in a married relationship, the Minister was required to have regard to all of the circumstances of the relationship including in particular:

12 The Tribunal considered various indicia of the spousal relationship as well as the subjective commitment of Ms Ally and the nominator required by Reg 1.15A. In particular, it looked at the financial aspects of the relationship, the nature of the household as reflected in the living arrangements, the social aspects of the relationship and the nature of the parties’ commitment to each other.

13 Of these indicia, only the parties’ living arrangements and the nature of their commitment are relevant to the appeal.

14 In her form of application for a visa, Ms Ally stated that she was living at the same address as Mr Okele in Woolloomooloo. For the reasons set out in par [36] of the Tribunal’s Statement of Decision and Reasons, the Tribunal was not satisfied that the evidence demonstrated that Ms Ally and her nominator established a household at that address.

15 The Tribunal then turned to the parties’ subsequent living arrangements to consider whether those arrangements enabled it to form the opinion that the parties were in a married relationship in accordance with Reg 1.15A.

16 There was evidence before the Tribunal that Ms Ally and Mr Okele lived together in premises in Hurstville for about six months from May 2001. The Tribunal considered this evidence at par [37]. It referred to, and considered, other evidence which pointed against the establishment of a marital household at that address.

17 This evidence included the fact that the lease was initially in the name of Mr Okele and a third person with whom he had viewed the property for rental. The evidence showed that Mr Okele and the third person made the decision to rent the property and their names were the only two names that were recorded on the telephone answering machine at the address.

18 The Tribunal was therefore not satisfied that the evidence demonstrated that Ms Ally and Mr Okele established a household together at Hurstville. It said at par [39] that it was:

19 There was information before the Tribunal which indicated that the nominator was diagnosed with HIV in 1999 but that Ms Ally only discovered this some time after the marriage when the police notified her of charges brought against the nominator. Ms Ally informed the Tribunal that the nominator did not disclose his HIV positive status to her "before or during their times together."

20 The Tribunal accepted that Ms Ally was not aware until well after the marriage that the nominator had been diagnosed with HIV in 1999. It concluded, however, at par [47], that the nominator must have known in the period prior to the marriage that he was HIV positive and that he intentionally failed to disclose this information to Ms Ally.

23 Ms Ally submitted evidence to the Tribunal that she had been the victim of domestic violence. Regulations 820.211(8) and (9) provided for an applicant to satisfy the spousal requirement, even if the relationship had ceased, where the applicant had suffered domestic violence. However, the Tribunal found that these paragraphs of the Regulations were not applicable because Ms Ally did not hold a Subclass 300 visa.

24 Nor did the Tribunal consider the domestic violence exception at the time of the decision under Reg 820.221(3), because it made a finding that Ms Ally was not a "spouse" within the meaning of Reg 820.211(2).

25 The learned Federal Magistrate observed at par [33] that the Tribunal took into account evidence of events subsequent to the application when arriving at its findings as to the nature of the relationship at the time of the visa application. However, his Honour was not satisfied that the Tribunal relied upon this evidence in any legally impermissible way and he considered that the Tribunal’s use of those events was in accordance with the principles stated in a number of authorities to which he referred.

26 Those authorities included a decision of Cooper J in Secretary, Department of Family and Community Services v Verney [2000] FCA 570; (2000) 60 ALD 737 at par [53]. The principle stated by
Cooper J was that a tribunal may rely on evidence of later events to demonstrate the falsity of an assessment or prediction earlier made and indeed that a tribunal would not be entitled to ignore material which demonstrated that earlier material was incorrect, incomplete or misleading.

27 Smith FM found at par [37] – par [41] that, in accordance with these principles, the Tribunal had considered later events to see how they illuminated the state of the marriage at the time of the visa application.

28 His Honour was of the view that the Tribunal was bound to consider whether the later events relating to the parties’ living arrangements provided hindsight which resolved its doubts about the status of the household at the time of the visa application. He found that the Tribunal looked at those events to see whether, as Ms Ally claimed, they confirmed the earlier existence of the required indicia, but it was unable to find that confirmation.

29 His Honour also held that the evidence about the nominator’s HIV status was admissible, even though it emerged after the time of the visa application. The learned Federal Magistrate was of the view that the Tribunal was entitled to treat this matter as reflecting on the nominator’s commitment to a long term relationship at the time of the visa application.

30 The notice of appeal raises four grounds. Each is rejected for the reasons set out below.

31 The first ground claims that his Honour erred in finding no error on the part of the Tribunal in considering subsequent events in arriving at its finding that Ms Ally was not a "spouse" at the time of the visa application.

32 The Tribunal’s task was, amongst other things, to determine the nature of the appellant’s relationship at the time of the application. Some of the observations of the Tribunal suggest that in undertaking this task, it took into account the nature of the relationship at a time after the application had been lodged in determining its nature when it was lodged. However, on a fair reading of the Tribunal’s reasons, it performed its task of assessing the nature of the relationship at the time of the application.

33 The authorities to which Smith FM referred support the proposition that, subject to certain provisos, it is open to an administrative tribunal to look at subsequent events to see whether they assist in determining the state of affairs at an earlier point in time: e.g. Hospital Benefits Fund of WA Inc v Minister [1992] FCA 599; (1992) 39 FCR 225 at 234; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521.

34 This is particularly so where the tribunal is required to make a predictive assessment and the later events demonstrate that earlier material was incorrect, incomplete or misleading: Verney at [53]. The principle qualification to the general rule is that the tribunal’s use of later events must be limited to considering whether that material throws light upon the position as at the date when the determination was required to be made. This qualification was mentioned in the authorities to which Smith FM referred.

35 Each case must turn upon its own statutory context and care must be taken to ensure that the subsequent events are truly informative of the position at the earlier point in time.

36 There was nothing in the reasons of the learned Federal Magistrate to suggest that his Honour misapplied the relevant principles. He specifically observed at par [40] that the Tribunal referred to the later events to consider whether they confirmed the earlier existence of the required indicia. He also observed at par [41] that although the true position as to the nominator’s HIV status only emerged in 2004, this evidence revealed the state of affairs at the time of the visa application.

37 We do not need to decide whether a determination as to the Minister’s state of satisfaction of the elements of "mutual commitment" and "genuine and continuing relationship" stated in Reg 1.15A(1A)(b)(i) and (ii) involve a predictive assessment. The appeal turns on whether the learned Federal Magistrate was in error in his view that the Tribunal confined its consideration of the subsequent events to an assessment of the nature of the relationship at the date of the visa application. We are satisfied that there was no error in his Honour’s approach to this question.

38 The second ground of appeal is unclear. It commences by contending error in relation to the use that the Tribunal made of the non-disclosure of the nominator’s HIV status which emerged after the visa application. But it continues by asserting that this was relevant to the claim of domestic violence.

39 Insofar as this ground alleges error in the use which the Tribunal made of subsequent events, it is covered by what we said in dealing with Ground 1. Insofar as it seeks to raise error in failing to make a finding of domestic violence, the ground is misconceived. This is because, as the Tribunal explained, domestic violence would only have been relevant if the applicant held a Subclass 300 visa or satisfied the "spouse" criteria at the time of the application.

40 The third ground complains of the Federal Magistrate’s use of the term "impressionistic criteria" at par [44], when describing the criteria for the visa. In granting leave to appeal, Spender J said that it is open to argument whether the factual integers in Reg 1.15A can properly be described as "impressionistic criteria": Ally v Minister for Immigration and Citizenship [2007] FCA 1373 at par [37]. However, we see no error in the use of this description as an appropriate label for the criteria of a mutual commitment to a shared life as husband and wife to the exclusion of all others and a relationship that is genuine and continuing.

41 The fourth ground claims that the Federal Magistrate "failed to properly assess" the evidence. It again raises the irrelevant issue of domestic violence. This ground fails to assert any relevant error on the part of the Federal Magistrate or the Tribunal.

42 We were not assisted by the oral and written submissions of counsel for the appellant. The written submissions failed to comprehend the distinction between merits review and jurisdictional error. So too did counsel’s oral submissions. Moreover, he persisted in ignoring this distinction notwithstanding the guidance which the Bench sought to give to him on this fundamental issue.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Goldberg & Jacobson.

Counsel for the Appellant:	Mr I N Asuzu

Counsel for the First Respondent:	Mr T Reilly

Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	28 February 2008

Date of Judgment:	3 April 2008

Federal Court of Australia - Full Court

Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 (3 April 2008)