Issue: what is the correct test for determining whether the applicant’s marriage is genuine? 

“The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of [all] others” (Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, unreported), cited in Sevim v MIMA [2001] FCA 1597 (12 Nov2001) (per Gray J) at [68].

Gray J in Sevim held at [71] that “… different levels or degrees of commitment, or… the commitment…to each other …of a different quality…Such differences do not matter in the application of the test. As long as each party has a commitment of the kind described in the test, the marriage will be genuine even if such differences exist.”

Eiley, FM held in Cao v MIAC [2007] FMCA 225 that  “[sexual] infidelity by one of the parties to the relationship does not necessarily take the relationship outside the definition of spouse or de facto. It will be a matter of fact and degree in the circumstances of the case, to be considered, along with all the other circumstances of the relationship of the relationship, in determining whether the parties have or had the requisite commitment to a shared life to the exclusion of all other at the relevant time.

 

36.I take the passage in bold to mean that [sexual] infidelity on the part of a party to a marriage does not necessarily mean that he or she does not meet the definition of spouse in the regulations, but that it is a matter that is to be considered, along with all the other circumstances of the relationship, in determining whether the parties had the requisite mutual commitment.

42 In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse.

Discussion:

[1] Sevim v MIMA [2001] FCA 1597 (12 Nov2001) (per Gray J)

68 The Tribunal stated correctly the test for determining whether a marriage is genuine. It quoted the passage from Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, unreported) at 11 as follows:

“people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as `community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.“

The element of a mutual commitment to a shared life as husband and wife to the exclusion of all others emerges in the legislation now, in reg 1.15A(1A)(b)(i), quoted above.

70 Counsel for the applicant contended that, having stated the test correctly, the Tribunal then proceeded to misapply it. He referred to the following passage in the Tribunal’s reasons for decision:

“Whilst the visa applicant’s evidence supports a commitment to the relationship, there is no evidence that it was reciprocated except to the limited extent that his spouse was prepared to commit herself solely on her own very limited terms.”

71 If this were a finding in the application of the test to which I have referred, it would be indicative of error on the part of the Tribunal. It would indicate that the Tribunal had taken the view that a genuine marriage required some parity of commitment between the parties, instead of a commitment by each to the other, as husband and wife, to the exclusion of others. There must be many marriages the parties to which have different levels or degrees of commitment, or in which the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of the test. As long as each party has a commitment of the kind described in the test, the marriage will be genuine even if such differences exist.

72 The context of the passage I have quoted from the Tribunal’s reasons indicates, however, that the Tribunal was not there purporting to apply the test. The passage appears in the course of the discussion of the application of the criterion found in reg 1.15A(3)(d). That criterion specifically examines “the nature of the persons’ commitment to each other”. It is plain that the Tribunal’s finding was directed to this criterion. The sentence I have quoted was followed immediately by:

“These facts do not illustrate a commitment to each other (regulation 1.15A(3)(e)).”

The reference to “(e)” is an obvious error. There is not a par (e) in reg 1.15A(3). It is clear that the Tribunal was intending to refer again to reg 1.15A(3)(d). The Tribunal then went on to make a specific finding that it could not find on the evidence that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others. It referred in terms to reg 1.15A(1)(b)(i), but must be taken to have intended to refer to reg 1.15A(1A)(b)(i), because there is no subpar (i) in reg 1.15A(1)(b). It concluded that the applicant did not meet the definition of spouse within the meaning of reg 1.15A at the time of the application for the subclass 820 visa. The Tribunal therefore concluded that the applicant did not meet the definition of “spouse” in the criterion in item 801.221(2)(b) of Sch 2 to the Migration Regulations. He was therefore ineligible to be granted a subclass 801 visa.

73 There is no error of a kind that would fall within one of the grounds in s 476 of the Migration Act apparent in this reasoning of the Tribunal. Although it considered the issue of the validity of the marriage for the wrong purpose, namely the validity of the decision to grant the subclass 820 visa, the Tribunal also recognised the relevance of that issue for the purpose of the task before it. The extraneous consideration of the validity of the decision to grant the subclass 820 visa was an error, but it was not an error affecting the Tribunal’s decision. The decision that the applicant was not entitled to a subclass 801 visa would have been the same in any event.

Conclusion

74 For these reasons, it is appropriate to dismiss the application for judicial review.

75 The question of costs is not an easy one. Had the Tribunal approached the issue of the effect of condition 8503 on the correct basis, by being aware that the decision it was required to review was the decision of the delegate of the Minister to refuse to grant a subclass 801 visa, on the application lodged on 18 October 1995, the applicant may have been induced not to seek judicial review of the decision. Similarly, had the Tribunal not considered the validity of the applicant’s marriage in the context of its purported review of the decision to grant the subclass 820 visa, the applicant might have accepted the decision. This suggests that there might be some unfairness in ordering the applicant to pay the respondent’s costs of this proceeding in the Court. It is also true, however, that it was necessary for the applicant to overcome the Tribunal’s reasoning in relation to several issues, in order to succeed. I have rejected the applicant’s arguments relating to the inapplicability of condition 8503, the finding that the subclass 820 visa was granted inadvertently, waiver of the condition and validation of the application by subsequent events. I have held that the applicant has failed in his challenge to the Tribunal’s determination that he was not a “spouse” for the purposes of the relevant criterion for a subclass 801 visa. For these reasons, he would have been unsuccessful in the proceeding in any event. The applicant would have lost even if the Tribunal had approached the two main issues on the correct basis. It is therefore appropriate to order the applicant to pay the Minister’s costs of the proceeding.

[2] Cao v MIAC [2007] FMCA 225  (21 March 2007)

Judgment of : Eiley FM

Note: Sexual infidelity by one of the parties to the relationship does not necessarily take the relationship outside the definition of spouse or de facto. It will be a matter of fact and degree in the circumstances of the case, to be considered, along with all the other circumstances of the relationship of the relationship, in determining whether the parties have or had the requisite commitment to a shared life to the exclusikon of all other at the relevant time.

MIGRATION – Migration Review Tribunal – partner visa – effect of sexual infidelity on mutual commitment to shared life as husband and wife to the exclusion of all others – whether open to the Tribunal to not be satisfied that the sponsorship had ceased – whether s359A letter adequately explained relevance of information – application dismissed.

 

36.I take the passage in bold to mean that [sexual] infidelity on the part of a party to a marriage does not necessarily mean that he or she does not meet the definition of spouse in the regulations, but that it is a matter that is to be considered, along with all the other circumstances of the relationship, in determining whether the parties had the requisite mutual commitment.

42 In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse.