Re-visiting some historical cases on partner visas – it is OK to be motivated by a visa grant

One of the key cases in migration law on partner vias is Minister of Immigration Dhillon [1990] FCA 144, where the Full Federal Court found that a permissible motivation for a partner relationship was the benefit of getting a visa. In Dhillon the Full Court said:

“11.The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street CJ in R. v. Cahill (1978) 2 NSWLR 453 at p 458. As his Honour there pointed out, 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. Mr Jolly never addressed that question. Accordingly, it seems to us that he failed to take into account a relevant consideration. This was the view of the learned primary judge, his Honour concluding that Mr Jolly "did not duly consider the nature of a marriage relationship and misdirected himself as to the nature of the discretion to be exercised by him."

Here is exactly what Street CJ said in Cahill which was a criminal case about entering into false marriages:

“It was not, in my view, open to the Crown…, to invite the jury to convict these appellants upon an opinion that the actual or contemplated marriages, although perfectly valid and effective at law and although not associated with any active deceptions or misrepresentations, were morally repugnant.

Quite apart from matters of religious teaching, it is known that marriages are at times contracted for reasons falling short of the more generally recognized purposes of entering into that relationship. In England in bygone days there were instances 'of celibate marriages being contracted for the purpose of affecting rights of inheritance of titles. The same situation exists both here and elsewhere in relation to marriages affecting rights of property succession. At times, marriages were or are entered into in connection with legitimation of existing or imminent issue of a since-terminated intimate relationship. The purposes and motives, equally as the hopes and anticipations, affecting two people when they enter into a marriage, are susceptible of too wide a variation to render it possible for the criminal law to classify some as offending, and the others as according with what is meaninglessly described as "community expectation", in so far as this may travel beyond the specifically prescribed concomitants of a marriage.”

So the question one sometimes sees in tribunal cases, ‘you’re just doing this to get a visa’ is not really a permissible question unless the question go further to say, you’re a complete and total fraud.  There is a big difference between being motivated to enter into a genuine partner relationship in order to obtain a visa and a totally fraudulent partner relationship.

To prove fraud the delegate and/or the tribunal needs to pass what we lawyers call the Briginshaw test [Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336] where Dixon J of the High Court said about proof in tribunals which decide matters on a ‘reasonable satisfaction basis:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the.. facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

Fraud therefore requires ‘exact proofs, definite testimony and direct inferences.’

The other question is that evidence after and indeed well after the date of visa application in a partner case may help prove the earlier existence of a partner relationship.  This was the outcome of Bretag v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 582 where the court stated:

14. The duty of the Tribunal was to assess the personal circumstances of the applicant and her husband as they existed at the time when the [visa] application… was made.. as at 7 February 1990. In terms of the "Dhillon test", the dominant question was… as at 7 February 1990, can it be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others. It was a misconception of the limited evidence on the subject of Mr  Bretag's state of mind to draw an inference that his relationship to the applicant was not, on that date, either genuine or continuing. Indeed, I am constrained to say that the Tribunal misconceived the meaning of the phrase "to the exclusions of others..." by giving to it an unnecessarily literal meaning. History and literature are full of examples of long lasting and happy marriages which were formed in a variety of circumstances. Marriages of convenience, marriages of necessity and even some marriages which were preceded by an element of "duress" have withstood the tests of time. The motives of a marriage partner are none the less genuine and continuing even though his or her predilections may have led, in different circumstances, to another preferred path (or partner).

15. I have concluded that the Tribunal did not use subsequent events as an aid to determine the existence or non-existence of facts that were relevant to the issue…; rather, it permitted itself to be influenced inappropriately by the resumption of the relationship between Mr B and Leanne some two months after his marriage to the applicant. It treated that resumption as determinative and assumed, despite the absence of evidence, that his willingness to return to his first wife must have meant that his marriage to the applicant was thereby flawed in the manner described by the Tribunal in its decision. 

Bretag has been followed in other decision eg Sai Chi Noriman Mak v IRT & the MILGEA [1994] FCA 918; (1994) 48 FCR 314 where the court said referring to Bretag and others:

In each of those cases it was held that evidence of subsequent events could be admitted where it might be relevant to the existence of a fact as at the earlier time.

Many emotional relationships between people can become quite serious early in the progress of the relationship. Whirlwind romances leading to long term serious relationships and long term marriages are not uncommon in history. US President Lyndon Baines Johnson (LBJ) met his wife Ladybird (her nick name of course) and proposed to her after their first date and they married two months later and remained married for almost 40 years, brought to an end, only by the death of LBJ in 1973 (New York Times 11 July 2007, Lady Bird Johnson, Former First Lady, Dies at 94).

So if a tribunal were to look at that marriage of LBJ and Ladybird, his say two months after they met one could possibly think it was contrived. However, obviously close to 40 years on, one can safely conclude – yes, the marriage was always genuine given that is lasted so long. So the facts occurring after the event can throw light on a state of affairs existing much earlier.

Here are the links to Dhillon & Bretag:

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1990/144.html

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1991/582.html