Case: Minister for Immigration v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
behalf of Mrs Holmes it was submitted that, on a reading of the Tribunal's reasons as a whole, it should not be concluded that the learned senior member had, as the Secretary alleged, addressed the incorrect question, notwithstanding the commencement passage quoted. To that end, my attention was appropriately directed to the salutary reminder offered by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration v. Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , at 272 that an administrator's reasons are " not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ". Giving full weight to this reminder, it nonetheless seems to me that, in form, the learned senior member did not address the correct question. The following excerpts from his reasons underscore the impression in that regard created by the commencement passage from the reasons which I have quoted: " The questions for the Tribunal here are fundamentally, whether there was a marriage-like relationship in any ordinary sense, or conversely, whether Mrs Holmes and her husband should be regarded as living separately and apart. " (Reasons, par 16) " The Tribunal must assess whether Mr and Mrs Holmes are in a marriage-like relationship based on the way they function in their relationship and with their children. " (Reasons, par 18) " The period of time spent together is also indicative of whether a marriage-like relationship can be said to exist. " (Reasons, par 32) " I find that the nature of the household does not reflect a marriage-like relationship. " (Reasons, par 33) " I therefore find the social aspects of the relationship do not amount to a normal marital relationship of a marriage-like relationship. " (Reasons, par 36). [In relation to sexual relations] " They were, it seems, satisfying temporal physical needs, but there is not sufficient evidence for it to be seen to be a marriage-like relationship, particularly where there was the absence of other commonly accepted elements of a marriage. " (Reasons, par 39) " I do not find the sexual relationship was typical of a marriage-like relationship where there was a minimal amount of emotional warmth. " (Reasons, par 40) " IS THERE A MARRIAGE-LIKE RELATIONSHIP? The requirements of s 4 require me to evaluate, by distillation of all the evidence, whether there can be said to be a marriage-like relationship. In other words, I must have regard to the weight to be placed on the various elements which characterise the relationship and which might be regarded on the balance of probabilities as being a marriage-like relationship. ... Nevertheless, while there are many factors which have justifiably been raised by the respondent and, on the face of it, point to the applicant being in a marriage-like relationship, the proper inference to be drawn from the analysis of factors in s 4(3) more than tip the scales in favour of Mrs Holmes. ... " (Reasons, pars 45 and 46) The repetitive use of the term "marriage-like relationship" and the deliberate entitling of a section of the reasons with the rhetorical question, "Is there a marriage-like relationship?" are consistent only with the posing by the Tribunal for itself of a question which was, in the circumstances of Mrs Holmes' subsisting lawful marriage, incorrect. Even so construed, each question suffers from the vice of being premised on a violation of the reminder given in Wu Shan Liang against over-zealous scrutiny of an administrator's reasons. The passage to which question 2.6 seems to be directed appears in par 17 of the Tribunal's reasons, " A marriage or marriage-like relationship might be differentiated from other dyadic friendships or relationships and must be expected to have at least some degree of intimacy. " The passage is subordinate to an earlier adoption by the learned senior member of a sense of union and common purpose being the essence of "marriage" when used as part of the expression "marriage-like" in ss 4(2), 4(3) and 4(3A) of the Act. For reasons that I develop below, there is no error in that conception of what the word "marriage" imports in that expression. It is quite wrong to read the quoted sentence out of this context as if its contents were seen by the learned senior member as indicating some additional or overarching requirement. The suggestion in question 2.7 that the Tribunal has elevated the criterion of the "nature of commitment" to a pre-condition to answering the question as to whether a person was a "member of a couple" as opposed to that criterion being part of "all the circumstances of the relationship" is, on a fair reading of the Tribunal's reasons, also wrong. A discrete portion of the Tribunal's reasons is entitled "Nature of the Commitment between the Applicant and Mr Holmes", but it is patent from other such headings that this is but a reference to a particular consideration by the Tribunal of such of the criteria specified in s 4(3) as seemed to the Tribunal to require more detailed comment in the circumstances of the case.