COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CWDS
  Migration - refusal to grant an extended eligibility (spouse) permit -
alleged de facto marriage - issue of fact - whether the Court should review
findings of fact - whether officer investigating the alleged marriage was
under a duty to inquire of all persons who might be able to throw light on the
application.

HRNG
SYDNEY
#DATE 13:3:1992

ORDER
THE COURT ORDERS THAT:
  1. The application be dismissed.
  2. The Applicant pay the Respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  This is an application brought by Alice Benlot, seeking orders of review
with respect to a decision of a delegate of the Minister for Immigration,
Local Government and Ethnic Affairs which refused to grant to Mrs Benlot an
extended eligibility (spouse) entry permit which, if granted, would have
entitled Mrs Benlot to remain permanently in Australia. Relevant provisions of
Regulation 126 of the Migration Regulations read when the decision was made:-
    "126 (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; ..."
Regulation 2(1) defined spouse to mean:-
    "(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."
2.  Mrs Benlot, who was then a 46 year old Filipino citizen in Australia
pursuant to a visitor's entry permit, made application on 22 March 1991 for an
extended eligibility (spouse) permit under r.126. Her application was
supported by Mr Guiseppe Martelli, who nominated Mrs Benlot for the grant of
the entry permit. I have been informed by counsel for Mrs Benlot that Mr
Martelli was a 75 year old Italian who had been in Australia for many years.
The application was made on the ground that Mrs Benlot and Mr Martelli had a
de facto marital relationship. The issue on which the grant or refusal of the
permit turned was whether or not Mrs Benlot and Mr Martelli had that marital
relationship and, if so, whether the relationship was genuine and continuing.
3.  The investigation of the facts was undertaken not by the decision-maker
himself but by Mr Adam Kosack, an officer of the Department of Immigration,
Local Government and Ethnic Affairs. No challenge is made with respect to
that. However, a number of grounds of challenge have been put forward by Mr N.
Mayell, counsel for Mrs Benlot. Mr Mayell encompassed these grounds under the
general heading of natural justice, using that term in an all embracing sense
and not limited to the issue of procedural fairness discussed in cases such as
Kioa v. West (1985) 159 CLR 550.
4.  I do not propose to discuss Mr Kosack's reasons at length for I am
satisfied that no ground of review has been established. The issue which Mr
Kosack had to consider was an issue of fact. It is not for this Court to
review findings of fact. The determination of facts is committed to the
decision-maker and his view must stand unless the determination was so
perverse or unreasonable that no reasonable decision-maker could have arrived
at it. See Mason C.J. in Australian Broadcasting Tribunal v. Bond (1990) 170
CLR 321 at 358-359.
5.  Mrs Benlot first arrived in Australia on 6 November 1988. It was alleged
that she and Mr Martelli formed a relationship during November 1988 but Mr
Martelli's wife, who suffered considerable ill health, was at that time
living. On 8 January 1989, Mrs Benlot applied for and was granted a further
temporary entry permit. Mrs Benlot departed Australia on 5 August 1989. She
returned on 11 November 1990 and was granted a temporary entry permit valid
until 11 February 1991. On 4 February 1991, Mrs Benlot applied for the grant
of a further entry permit claiming that she wished to see relatives in and to
visit more of Australia. In this application, Mrs Benlot stated her marital
status as married, referring thereby to her husband in the Philippines. Mrs
Benlot did not complete the space provided with respect to a de facto
relationship. In this application form as in the previous application forms,
Mrs Benlot gave her residential address as 4/28 St Luke Street, Randwick,
which was her sister's home. No mention of Mr Martelli was made in any of the
application forms lodged in respect of the abovementioned periods though
provision was made for a list of friends and relatives in Australia.
6.  The allegation made to Mr Kosack was that Mr Martelli's wife died on 2
January 1991 and that Mrs Benlot was informed of this on 8 January 1991, that
shed moved into Mr Martelli's home on the afternoon of 9 January 1991 and that
she resided with him in a de facto marriage thereafter.
7.  Mr Kosack interviewed Mrs Benlot and Mr Martelli and made it clear what
was the issue. He was provided with letters addressed to Mr Martelli's home,
with some bank records, with medical fund books, with photos showing Mrs
Benlot and Mr Martelli together, with copies of a telephone account and with
documents relating to international money transfers. Mr Kosack also received
statutory declarations from Mrs Benlot's sisters.
8.  Several factors led Mr Kosack to a lack of satisfaction that there was a
genuine marital relationship as at 22 March 1991, the date of the application.
9.  Mr Kosack was not satisfied that Mrs Benlot did reside with Mr Martelli
from 9 January 1991 onwards. Mr Kosack took account of the application for the
visitor's visa which was lodged on 4 February 1991 which gave the Randwick
address and made no reference to Mr Martelli. Mr Kosack had regard to the fact
that, on 15 May 1991, an officer of the Department telephoned the sister's
home and was advised that Mrs Benlot resided there. Mr Kosack further thought
it strange that he was given 11 letters from 22 February 1991 onwards sent by
the sister at Randwick to Mrs Benlot at Mr Martelli's address and concluded
that it was likely that the letters were sent "solely or substantially to
evidence that the applicant resides with the nominator".
10.  Secondly, Mr Kosack took account of the general policy of the Department
of Immigration, Local Government and Ethnic Affairs not to accept the de facto
relationship as genuine and continuing unless it had existed for 6 months
prior to the lodgement of the application for the permit. Mr Kosack referred
to the policy which stated:-
    "Only those applicants who are able to fully demonstrate their
    mutual support and co-operation in financial and domestic
    matters can be seen as meeting the genuineness criterion if
    their relationship began less than 6 months before
    application."
Mr Mayell did not raise any ground of challenge based on the taking into
account of this general policy.
11.  Thirdly, Mr Kosack doubted that the relationship between Mrs Benlot and
Mr Martelli constituted a relationship in the nature of a de facto marriage.
Mr Kosack noted that Mrs Benlot had said "that she massages the nominator,
reminds him to take his tablet and prepares food for him" and further that
"both the applicant and the nominator claim to watch television together. From
the content of the interview, this would appear to be the major recreational
interest they share." Mr Kosack noted that Mrs Benlot spoke only a little
Italian and Mr Martelli spoke only a little English and noted that "they do
not share fluency in a common language nor do they appear to be able to share
substantial conversation."
12.  I have omitted many of the matters which Mr Kosack took into account, for
his report was comprehensive and his inquiries appear to have taken some
months. However, the above description is sufficient to outline the general
structure of Mr Kosack's thinking and sufficient to make it clear that there
were factors pointing both ways for and against a genuine de facto
relationship. No challenge taken to the decision could succeed on the ground
that it was perverse or so unreasonable that no reasonable decision-maker
could have come to it. The decision taken was open on the material before the
decision-maker.
13.  Mr Mayell submitted that there was a breach of procedural fairness and a
failure to take into account material which could and should have been
obtained because Mr Kosack failed to interview Mrs Benlot's sister Lota
Parczewski, failed to interview Mr Martelli's daughters and failed to
interview Mr Remy Nukum, who lived in a flat behind Mr Martelli's home. Mr
Mayell submitted that Mr Kosack should not have formed a view adverse to Mrs
Benlot without making inquiries of these persons.
14.  However, although it is sometimes said that a decision-maker should not
fail to take into account all the material that was or should have been before
him, such a reference to the material which the decision-maker should have but
did not have before him is a reference to material which the decision-maker is
deemed by law to have had or should have had because it was information held
by the Department which should have been passed to him or was information so
vital that it would have been unreasonable for the decision-maker to come to a
decision without obtaining it. These matters have been discussed by Keely,
Wilcox and Gummow JJ. in J. Wattie Canneries Ltd v. Hayes (1987) 74 ALR 202 at
216-7 and by Wilcox J. in Prasad v. Minister for Immigration and Ethnic
Affairs (1985) 6 FCR 155 at 169-70. I need not add to their Honours'
observation.
15.  A decision-maker is not bound to accept an allegation of fact put to him
unless he can prove the contrary and he is not bound to make an applicant's
case for him. The rules of procedural fairness as expounded in Kioa v. West
merely require a decision-maker to give to an applicant a fair opportunity to
put his or her case. This may involve giving to an applicant both an
opportunity to make representations and an explanation of matters of substance
that may be taken into account contrary to the applicant's case, so that the
applicant has an opportunity of answering or otherwise dealing with such
matters. However, it is not the task of busy officers of the Department of
Immigration, Local Government and Ethnic Affairs, whose duty it is to consider
applications lodged in writing in accordance with the regulations, to make
inquiries of all persons who may be able to throw light one way or another
upon an application being considered.
16.  Mrs Benlot understood what was in issue and it was for this reason that
she supported her written application with a good deal of documentary material
such as the letters I have mentioned and also the statutory declarations on
which she relied. According to Mrs Benlot's affidavit in these proceedings, it
was Mr Kosack who raised the issue of Mr Martelli's family, for he asked Mrs
Benlot "What do Guiseppe Martelli's family think about your relationship with
him?" That Mr Kosack asked this question shows that he was genuinely
interested to understand what was the nature of the relationship. It was not
his task or task of the decision-maker to go out and to interview the
daughters nor was it Mr Kosack's task to seek to interview Mrs Benlot's sister
or Mr Nukum. I see no reviewable error on this aspect of the matter.
17.  Mr Mayell submitted that it was unreasonable for Mr Kosack to draw any
conclusion with respect to or arising from the lack of fluency in a common
language which Mr Kosack had perceived. However, the ability of Mrs Benlot and
Mr Martelli to communicate with each other was a relevant factor for Mr Kosack
to take into consideration in deciding what was the relationship between them.
What conclusion of fact he drew and what use he made of the fact was a matter
for him, for he was the decision-maker of fact. There was no error of law in
this respect.
18.  Mr Mayell went so far as to submit that the view of Mr Kosack on this
point was so unreasonable that it demonstrated that Mr Kosack was racially
biased against Mrs Benlot. However, Mr Kosack's reasons for his decision do
not support that contention in any way. Mr Kosack seems to have considered
carefully and comprehensively all the available material in this difficult
case.
19.  It was next submitted that Mr Kosack did not adequately investigate the
financial arrangements between Mrs Benlot and Mr Martelli. But this issue is
similar to the allegation respecting a lack of inquiry of Mr Martelli's
daughters and others. Mr Kosack was under no duty of investigation to do other
than to make it clear to Mrs Benlot what were the issues to be considered and
to consider the material which Mrs Benlot produced to him. Prior to
interviewing Mrs Benlot and Mr Martelli together, Mr Kosack had received from
Mrs Benlot a joint bank account in the name of herself and Mr Martelli. At the
joint interview, he received further documents including a photocopy of a bank
book evidencing a joint account opened 26 February 1991 and a health fund
membership book in Mr Martelli's name showing "Alice" as Mr Martelli's spouse.
Accordingly, it was known by Mrs Benlot what was the type of information which
would support her claim. The information she produced was considered by Mr
Kosack. Mr Kosack in fact himself made some enquiry. The affidavit of Mrs
Benlot filed in these proceedings shows that during the joint interview Mr
Kosack questioned her as to how she supported herself and how she supported or
assisted her children in the Philippines. According to Mrs Benlot, she
responded that she supported herself and assisted her children from money
given to her by Mr Martelli and she informed Mr Kosack that there were
chequebooks and bank statements to support this. Whether or not Mr Kosack
accepted this information or, if he did, what use he made of it was a matter
for him and for the decision-maker. They were not bound to accept Mrs Benlot's
statements of fact or conclude from what she said that there was a genuine de
facto marital relationship between her and Mr Martelli.
20.  In my opinion, no ground of judicial review has been established. In the
circumstances, the application will be dismissed with costs.