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Le v Minister for Immigration & Anor [2009] FMCA 948 (25 September 2009)

Last Updated: 29 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Partner (Residence) (Class BS) Visa – spouse of sponsor – concern about paternity of sponsor’s daughter – refusal to have DNA test – applicant not satisfy spousal requirements – access to sponsor’s children – whether court order necessary – applicant to file amended applicant – adjournment necessary – costs.


Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228; 155 FCR 441
Fitch v Migration Review Tribunal [2004] FCA 1976
Yazbeck v Minister for Immigration and Multicultural Affairs [2002] FCA 980; (2002) 124 FCR 458
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v Minister for Immigration and Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Yao-Jing Li v Minister for Immigrations and Multicultural Affairs (1997) 74 FCR 275
Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39
Rhandawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167

Applicant:
TIEN DUNG LE

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
MLG 1161 of 2008

Judgment of:
Turner FM

Hearing date:
15 July 2009

Date of Last Submission:
15 July 2009

Delivered at:
Melbourne

Delivered on:
25 September 2009

REPRESENTATION

Counsel for the Applicant:
Mr Langmead

Counsel for the Respondents:
Mr Gilbert

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) That the applicant pay to the first respondent costs thrown away on
11 February 2009.
(2) That the application filed on 24 September 2008 is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1161 of 2008

TIEN DUNG LE

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “MRT”) that affirmed the decision of the Delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) Visa.
  2. The applicant and his sponsor (the “parties”) claim to have met around August 2001 through the applicant’s sister (who is a friend of the sponsor), when the applicant was in Australia to study
    (Court Book 22).
  3. The sponsor has two children from a previous relationship
    (Court Book 22 and 222). The applicant moved to Robinvale at the end of June 2002 to live with the sponsor and her children (Court Book 23). The parties married on 17 September 2002 (Court Book 27). The parties have a child together “Mary-Anne Ngyen Le” born 5 April 2005 (Court Book 191).
  4. The applicant applied for a BS Partner (Residence) Visa, under subclass 801, on the basis of being the spouse of the sponsor
    (Court Book 279.6). In order to be granted a visa, the applicant must satisfy at least one of subclasses 801.221 (2), (3), (4), (5), (6) or (8) of Regulation 801 Schedule 2 to the Migration Regulations 1994
    (the “Regulations”).
  5. The applicant lodged and application for a Partner (Residence)
    (Class BS) Visa on 6 December 2002 (Court Book 2). The Delegate decided to refuse to grant the visa by decision dated 21 May 2007
    (Court Book 278). The Delegate found that the parties:

The Delegate found that:

“There is no evidence that the nominating spouse has died, so I find that the applicant cannot satisfy subclause (5).”
(Court Book 279.7)

The Delegate found:

“Nor is there any evidence that there has been domestic violence to the applicant (or any dependent child), or that the applicant has custody of or access to a child to whom the nominator has similar obligations, so subclause (6) is not satisfied.”
(Court Book 279.7)

The Delegate stated:

“I have therefore assessed this application under subclause (2) of regulation 801.221. That subclause requires (inter alia) that the applicant is, at the time of decision, the Spouse (as defined) of the nominator. The definition of Spouse is provided at regulation 1.15A...”
  1. The Delegate provided the applicant with a copy of the relevant Regulations (Court Book 334-338) which were as follows:

801.221

(1) The applicant meets the requirement of subclause (2), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of the subclause if:
(3) An applicant meets the requirements of the subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (3).
(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (3).
(5) An applicant meets the requirements of this subclause if the applicant:
(6) An applicant meets the requirements of this subclause if:
  1. the applicant;
  2. a dependent child of the nominating spouse or of the applicant or of both of them;

has suffered domestic violence committed by the nominating spouse

(ii) the applicant:
  1. has custody or joint custody of, or access to; or
  2. has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the nominating spouse:

  1. has been granted joint custody or access by a court; or
  1. has a residence order or contact order made under the Family Law Act 1975; or
  2. has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligations.

(6A) Paragraph (2)(d) does not apply to an applicant who at the time of making the application was in a long-term spouse relationship* with the nominating spouse.

(7) Nothing in paragraph (2)(d) prevents the Minister, less than 2 years after the application is made:

other than an applicant whose application as in accordance with approved form 887 or

(d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).
(8) The applicant meets the requirements of this subclause:

* “long-term spouse relationship”

in relation to an applicant for a visa, means a relationship between the applicant and another person, each as the spouse of the other, that has continued:

(a) if there is a dependent child of bother the applicant and the other person-for not less than 2 years; or
(b) in any other case – for not less than 5 years;

Regulation 1.15A – Spouse

(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(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:
  1. live together; or
  2. do not live separately and apart on a permanent basis.
(3) Persons are in a de facto relationship if:
  1. live together; or
  2. do not live separately and apart on a permanent basis; and

(d) subject to paragraph (e) and 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 application of the party relying on the existence of the relationship:
  1. been living together; or

B. not been living separately and apart on a permanent basis; and

(e) where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa – the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997:
  1. been living together; or
  2. not been living separately and apart on a permanent basis.

(2A) Paragraph 2(d) does not apply if:

(a) the applicant is applying as:
  1. is, or was, the holder of a permanent humanitarian visa; and
  2. before the permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2)(c)(i), (ii) and (iii) and of which Immigrations was informed before the visa was granted; or
(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.

[NOTE: ‘permanent humanitarian visa’ is defined in regulation 1.03.]

(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

[Paragraph 1.15A(3)(aa) was omitted by Statutory Rules 1999, No.259 with effect on and from 1 November 1999.]

(ab) a Family (Residence) (Class AO) visa; or

[Paragraph 1.15A(3)(ac) was omitted from Statutory Rules 1999, No.259 with effect on and from 1 November 1999.]

(ad) a Partner (Migrant) (Class BC) visa; or

(ae) a Partner (Provisional) (Class UF) visa; or

(af) a Partner (Residence) (Class BS) visa; or

(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:
(b) the nature of the household, including:
(c) the social aspects of the relationship including:
(d) the nature of the persons’ commitment to each other, including:
(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa or a class other than a class specified in paragraph (3)(aa), (ab), (ac), (ad) or (ae), the Minister may have regard to any of the factors set out in subregulation (3).
(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.
  1. The Delegate found that the applicant did not meet the criteria for a subclass of visa within visa class BS and refused to grant a permanent Class BS Partner (Residence) Visa to the applicant
    (Court Book 286).
  2. The applicant then lodged an Application for Review to the MRT
    (Court Book 316)
  3. The MRT sent the applicant an invitation to comment by 12 May 2008 on

The applicant’s solicitor responded on 12 May 2008 (Court Book 351).

  1. The MRT sent the applicant an invitation to appear before it on
    28 July 2008 (Court Book 366).
  2. The applicant, his spouse and his sister appeared before the MRT on
    28 July 2008 and gave evidence with the assistance of an interpreter
    (Court Book 391.5). The applicant was represented by his migration agent (Court Book 391.5).
  3. By decision dated 12 August 2008 the MRT affirmed the decision of the Delegate not to grant the applicant a Partner (Residence) (Class BS) Visa (Court Book 385).
  4. The applicant then filed an application for judicial review with the Court that set out the following grounds and particulars:

Grounds of Application:

(1) In determining that the applicant is not entitled to the grant of a Partner (Residence) (class BS) visa, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.

Particulars

(i) The Tribunal erred in its investigation of the relationship between the Applicant and his spouse.
(ii) The Tribunal misinterpreted the decision in Bretag v MILGEA and Its relevance to the present case.
(iii) The Tribunal misinterpreted the legal rights and obligations of the applicant to the child of the relationship.
(iv) The Tribunal misinterpreted the relevance of the Family Law Act 1975 to the applicant and the child of the marriage.
(v) The Tribunal did not adequately consider the rights of the child that child being accepted as a child of the marriage by the applicant and the spouse such child being an Australian citizen.
(vi) The Tribunal put undue emphasis on the lack of a DNA test.
  1. The applicant filed an amended application on 12 March 2009, which is intended to replace the first application it its entirety (Transcript page 3 line 27). The amended application set out the following grounds and particulars:

Amended Grounds of Application

(1) In determining that the applicant is not entitled to the grant of a Partner (Residence) (class BS) visa, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.

Particulars

(i) The Tribunal misinterpreted the legal rights and obligations of the applicant to the child of the relationship.
(ii) The Tribunal misinterpreted the relevance of the Family Law Act 1975 to the applicant and the child of the marriage.
(iii) The Tribunal did not adequately consider the rights of the child that child being accepted as a child of the marriage by the applicant and the spouse such child being an Australian citizen.
(iv) The Tribunal put undue emphasis on the lack of a DNA Test.
(v) The Tribunal misinterpreted and misapplied the criteria contained in subclause 802.221(6) of the Migration Regulations.
(vi) The Tribunal failed to consider a relevant consideration being the applicant’s custody, joint custody or access to the sponsor’s children as required in subclause 801.221(6)(ii)(A).
(vii) The Tribunal considered an irrelevant consideration when it considered whether the applicant was the biological parent of the child of the marriage.
  1. At the hearing on 11 February 2009 Ms King-Siem put submissions for the applicant. Mr Gilbert, appearing for the Minister, then sought a short break stating that:

The Court accepted that submission.

  1. Mr Gilbert stated that he needed 20 minutes to get instructions.
  2. Ms King-Siem then apologised and stated that:
  3. The matter was then stood down for Mr Gilbert to get instructions.
  4. The hearing resumed 30 minutes later, when Mr Gilbert sought an adjournment and costs of the day. He contended that the:

He continued:

“The contentions (of law) which are drawn...There are four paragraphs 16 to 19 which deal with one contention essentially and nowhere in that contention is the question of access now raised today. There’s a reference to access in paragraph 16, a misdirection in relation to 6, the child of whom both the applicant and its sponsor have access, custody or orders under the Family Law Act, whereas the argument today is quite different. Then 17 deals with custody, not the question of access. A reference to Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228; 155 FCR 441 which deals with the question of custody and then 18 and 19 are different points which don’t appear to be pursued today, which is that it’s sufficient for the husband and wife to regard the child as a child of the marriage and then that the child regards the father and mother as her parents, and then the foreshadowing of Family Court orders to that effect...The way in which the case was run before the Tribunal...was...on the basis that the parties were in a genuine relationship but had run into difficulties and had separated but were intending to resume...so the case that was being put to the Tribunal is entirely different to the case that is being put to the Court today. The submission today concentrates on the meaning of the word “access” or on the question of access, not the joint custody aspect of the subregulation. The Minister responded to the contentions. Assuming that the particulars were abandoned but in this case the particulars didn’t address this matter in any event, it’s a matter that the Minister has simply not considered in his submissions and is taken by surprise entirely, by the way in which the matter was run this morning. I would be able to mount some argument orally today but without further research and concentration on what this aspect is, I wouldn’t do justice to the Minister’s position. One could in the circumstances object to the matter even being run in this fashion...but we don’t make that submission...It would severely disadvantage the applicant if such a strict position were adopted. But if the matter can be cured by an adjournment and costs, then the Minister would be satisfied with that approach...and that it be costs against the solicitor...these contentions are remarkably brief. They don’t reveal anything of the current argument, and there’s been no supplementary submissions filed, no amended application”.
  1. Ms King-Siem then submitted:

The Court asked:

“Where do the contentions cover the access point?”,

To which Ms King-Siem responded:

“Paragraph 16 makes mention of it – it’s in relation to an order under the Family Law Act. The contentions are regrettably brief, we agree, and don’t sufficiently cover the territory that was covered today, but they do...By no means does this make up for the deficiency of the applicant in failing to file amended contentions or indeed file contentions to start with, but I would draw the Court’s attention to the fact that much of the territory was already covered in the respondent’s contentions as perhaps an ameliorating fact.”
  1. The Court delivered its judgment on the issue of the adjournment at 11.29am. The Court made orders including:
    1. The matter is adjourned to 2.15pm on 15 July 2009.
    2. The applicant within seven days file and serve an amended application setting out the matter to be relied on on 15 July 2009.

Costs

  1. The question of costs was adjourned to 2.15pm on
    15 July 2009.
  2. Paragraphs 1 to 4 of the judgment are as follows:-
  3. As is clear from the judgment, an adjournment was granted because the respondent had been caught by surprise as the applicant’s contentions of fact and law did not set out in any detail the submissions put to the Court. An amended application was necessary.
  4. When the matter resumed on 15 July 2009 Mr Langmead appeared for the applicant, and Mr Gilbert for the Minister. Mr Gilbert stated that the Minister is not seeking costs directly against the solicitor for the applicant. Mr Gilbert submitted that:
  5. The Court decided on 11 February 2009 that the respondent had been caught by surprise and that an adjournment was necessary. The applicant is therefore liable to pay the respondents costs thrown away of 11 February 2009. Mr Gilbert did not quantify those costs. They will be fixed on the day that this judgment is delivered. The Court orders that the applicant pay to the first respondent costs thrown away of
    11 February 2009.

Contentions for the Applicant

  1. The applicant filed amended contentions of fact and law on
    24 February 2009.
  2. The applicant’s contentions state that the MRT found that the applicant and sponsor were validly married (Court Book 392.6), and that the applicant had undertaken financial support for the child of the marriage, but it was not satisfied that this necessarily indicates his commitment to the relationship (Court Book 393.2).

The MRT expressed concern about the paternity of the sponsor’s daughter and, for the reasons it set out, it was not satisfied that the sponsor’s daughter is the child of the relationship (Court Book 393.10); nor was the MRT satisfied that the applicant has joint responsibility for the care and support of the children (Court Book 394.2).

  1. An applicant must establish their case to the satisfaction of the MRT.

As stated in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”

  1. The applicants contentions state that:
  2. The MRT found that the applicant did not meet the requirements of reg 801.221(2), (2A), (3), (4), (5) or (6)(c)(i), for the reasons it set out
    (at Court Book 395.2). The MRT therefore had to determine whether the applicant met the requirements of reg 801.221(6)(c)(ii), (Supra).

Before turning to that question the MRT found that:

“for the reasons stated above, the Tribunal is not satisfied that the applicant is the natural parent of the child.”
(Court Book 395.4)

The MRT then considered whether the applicant met reg 8.1.221(6)(c)(ii) and stated that:

“for the applicant to meet clause 801.221(6)(c)(ii) the applicant must have an order made under the Family Law Act 1975 relating to at least 1 child in respect of whom the sponsoring spouse has been granted joint custody or access by a court; or has an order made under the Family law Act 1975.” (Court Book 395.5).

The applicant advised the MRT that there were no such orders with respect to his daughter or any of the sponsors other children. The MRT therefore concluded that it was:

“not satisfied that the applicant meets cl801.221(6)(c)(ii) and (6). (Court Book 395.6)
  1. The MRT was not satisfied that the applicant meets any of the alternative provisions in reg 801.221 (Court Book 395.8).
  2. The MRT was not satisfied that the applicant continues to be the sponsors spouse within the meaning in reg 1.15A (Supra) and was not satisfied that the applicant satisfies the spousal requirements contained in both 801.221...and cannot be granted a subclass 801 visa
    (Court Book 395.10).
  3. The applicant’s contentions allege that the MRT fell into error when it misinterpreted and misapplied reg 801.221 (6), as it
  4. It was submitted that:

(ii) the applicant

(A) has custody of or joint custody of, or access to

(B) at least 1 child in respect of whom the nominating spouse

(C)

(D)

(E) had an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligations in respect of those children.”

It was argued that:

“Following the decisions in Srour and Fitch (Supra) there is no requirement for the custody or access to the child or children to be by Court order. In Fitch (Supra), Justice Dowsett said at [25]

That statement is said to be cited with approval by Justice Moore at [43] in Srour (Supra). Mr Gilbert submits that that is incorrect. Justice Moore cites the relevant passages but does not state his approval or disapproval.

  1. It is then submitted by Mr Langmead that, when assessing whether an applicant had met the criteria in item (A), the relevant consideration is whether the applicant has custody, joint custody or access to (the) sponsor’s child or children. It is not whether the applicant has obtained a Family Court order. Indeed (B) specifically contemplates the role of a Family Court order. This by inference and following Srour and Fitch, item (A) is assessed on whatever informal arrangements the applicant and sponsor may have for the custody or access to the child or children. Finally, item (A) makes no reference as to the applicant’s biological relationship with the child or children. As noted by Dowsett J in Fitch and cited by Moore J in Srour at [46] there is no requirement
    [in item (A)] that the child be the biological child of either person.
  2. It is contended for the applicant that item (E) is entirely concerned with whether the sponsoring spouse has a formal maintenance obligation for any of the children in item (A). Again there is no requirement for the sponsor to be the biological parent; Rather, where the sponsoring spouse is the biological parent, there will be a “formal maintenance obligation” imposed by the biological parent’s common law responsibility to maintain a child Srour (Supra ) at [44].
  3. It is contended for the applicant that on the correct construction of
    Reg 801.221(6), the Delegate and the Tribunal were required to consider whether the applicant had custody or access to one or more of the sponsor’s children. It is contended also that as there is no suggestion that the sponsoring spouse is not the biological mother of all three children (including the children from the marriage), item (E) is fulfilled.
  4. It is contended for the applicant as to item (A) that, it required the Delegate and the Tribunal to consider whether the applicant had custody, joint custody or access to the sponsor’s children, and that at the time of the decision, the applicant was separated from the sponsoring spouse. However...the applicant had formed a step-father relationship with the sponsoring spouse’s two older children
    (Court Book 392[39]) and that he was the father of the child of the marriage (regardless of whether he was the biological parent or not) (Court Book 390[32]; 391[37]; 392[38]).
  5. It is submitted for the applicant that the Tribunal accepted that the applicant had taken financial responsibility for the support of his child (Court Book 392[44]) and that he had regular access and contact with the sponsoring spouse’s children (Court Book 393[45]). It is then alleged that in reaching its (sic) decision the delegate and Tribunal failed to consider whether the access, and the applicant’s involvement with the children, fulfilled item (A). It is submitted that:
  6. It is then submitted for the applicant:

It is submitted that:

“sublause 801.221(6) allows for an applicant to fulfil item (A) without being a biological parent to any of the sponsoring spouses children, and that the delegate the Tribunal focusing on the paternity of the youngest child led them to fail to assess the applicant on the relevant criteria of the applicant’s custody or access to all three children.”
  1. It is then submitted for the applicant that the Family Law Act recognises that persons other than a child’s biological parents may have an interest in the care, welfare and development of a child, and that subclause 801.221(6) allows for similar range of applicant’s to have an interest and role in the care, welfare and development of a child.
  2. It is then submitted that even though it is not relevant whether the applicant is the biological parent of the child, both the applicant and spouse allege that he is, and there is no evidence to the contrary, as the absence of a paternity test does not prove anything.
  3. In conclusion it is submitted for the applicant;

Contentions for the First Respondent

  1. The first respondent’s contentions set out the relevant provisions of Clause 801.221(6)(c)(ii) correctly as follows:

Clause 801.221(6)(c)(ii) provides:

An applicant meets the requirements of this sublause if...(c)
  1. The first respondent then refers to what it calls the critical passage of the Tribunal’s decisions at Court Book 395[57]. The Court quotes the whole of paragraph [57] on Court Book 395:
  2. The MRT made a finding that, for the reason stated it was “not satisfied that the applicant is the natural parent of the child.” That finding was open to the MRT on the material before it. An applicant must establish their case to the satisfaction of the Tribunal Guo & Anor et seq (Supra).

As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
  1. The situation is that the applicant has failed to prove that he is a biological parent of Mary-Anne, although the applicant contends that is not a relevant consideration.

The issue is of relevance because, as found by the MRT

“On the reasoning in Srour (Supra) there is no need for the applicant to provide evidence of formal orders made under the Family Law Act with respect to a child of the relationship, provided he is a natural parent of the child.”

The Court refers to Srour at [46] where Justice Moore referred to the decision of Justice Dowsett in Fitch (Supra).

  1. Having reached the conclusion that the applicant had not proved that he is a biological parent of the child it has not been shown that the MRT erred in law in concluding that:
  2. The first respondent refers to the reasoning of the MRT that the applicant did not provide evidence of a Court order relating to custody or access, thereby accepting that generally custody or access arrangements must be demonstrated by a Court order.
  3. The first respondent submits that according to Srour no Court order is necessary where there is a biological child because custody is assumed by operation of the Family Law Act. The Court accepts that submission, subject to the power of a relevant court to regulate access, or with whom a child lives.
  4. The first respondent challenges the applicant’s contention that the MRT erred when it found that custody and access must be demonstrated by a Court order. The first respondent points out correctly that in relation to the passages relied on by the applicant in paragraph [43] in Srour and [25] in Fitch (Supra), Justice Moore precedes his finding in Srour with the words “it was not necessary to address whether the applicant had access”; In Fitch Justice Dowsett precedes his finding with the words “in those circumstances, it is not necessary to address the question of access” and then proceeds to do so. The findings in these paragraphs are therefore not binding authorities. The first respondent then relies on part of the ratio decidendi in Yazbeck (Supra) at [9]. The Court accepts that it should follow Yazbeck and find that the omission from para (A) of any reference to orders, and the inclusion of such a reference in para (B) is “just bad drafting”.
  5. In Yazbeck Justice Sundberg made a similar finding to the MRT that the applicant did not meet sublcause 100.221(4)(c)(ii)(B) (which is held in Srour to be the identical provision to 801.221(6)(c)(ii) Srour at [40] ) because there was no Court order for custody or access. Here, there is no Court order for custody or access.
  6. The Court notes that Justice Moore in Srour stated that
  7. As submitted for the first respondent, Justice Sundberg found in paragraph [9] that Clause 100.221(4)(c)(ii)(A) was intended to require custody and access orders though it did not explicitly mention them.
  8. It is submitted that in Fitch Justice Dowsett found that the Family Law Act imposed parental responsibility on all biological parents, and therefore the applicant satisfied 801.221(6)(c)(ii)(A) by operation of the Family Law Act. It was therefore “not necessary for the Court to address the questions of access.” [25]
  9. The first respondent submits as to Srour that Justice Moore found that because the child was a biological child (which has not been established here), in accordance with Fitch, the sponsor had a right to custody... by operation of the Family Law Act [56].
  10. The Court of course is not bound to apply obiter in Fitch and Srour. The Court does not find Yazbeck to be clearly wrong; nor did Justice Moore in Srour [56].
  11. The Court finds that the MRT did not have regard to an irrelevant consideration being “whether the applicant was a biological parent of the child” as this was an issue considered in the above cases.
  12. The Court finds that the MRT did not interpret 801.221(6)(c)(ii)(A) wrongly when it found that the clause requires custody and/or access to be by virtue of a Court order.
  13. The Court finds that the MRT did not err in accepting a submission by the applicant that “there were no such (Court) orders made with respect to his daughter or any of the sponsor’s other children.”
    (Court Book 395 [57] ).
  14. An error of law has not been shown by the applicant.
  15. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
  16. The application is dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Turner FM


Associate: Eyal D’vier


Date: 25 September 2009

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