Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
referred to in s 4(2)(b)(iii) of the Act is s 4(3A). That subsection intrudes upon the forming of the Secretary's opinion as to whether a couple in a relationship are in a "marriage-like" relationship by requiring consideration of whether a member of that couple is "living separately and apart from his or her partner on a permanent or indefinite basis". If one reads in isolation the conditional clause at the conclusion of s 4(3A) of the Act, in which the words just quoted appear, one might perhaps come to the view that, in the case of a marriage-like relationship, the condition it posits is an objective absolute. It is to be remembered that there is a very definite distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 651, [130] per Gummow J. Yet so to construe s 4(3A) would be to introduce an asymmetry in the definition of "member of a couple" between the position with respect to a couple who are parties to a legal marriage and the position with respect to a couple who, in the Secretary's opinion, are in a marriage-like relationship. Unless the language of the Act was intractable such a construction would introduce an unnecessarily subtle distinction into the operation and administration of a definition of pervasive importance in a statute of wide application in our community. In the case of a legally married couple what s 4(2)(a) requires is the forming of an opinion by the Secretary as to whether one party to that marriage is " living separately and apart from the other person on a permanent or indefinite basis ". That there is a relationship in form is a given flowing from a prior transaction of lawful marriage with the concern being whether, in substance and having regard to the considerations mentioned in s 4(3), the couple are, in the Secretary's (or in his place the Tribunal's) opinion, living separately and apart on a permanent or indefinite basis. One of those considerations which, in its application to a legally married couple, conceptually surely owes its inspiration to the works of Lewis Carroll, is whether that legally married couple " see their relationship as a marriage-like relationship" : s 4(3)(e)(iv). In my opinion, reading s 4(2)(b)(iii) and s 4(3A) together yields the result that Parliament intended that the forming of the Secretary's opinion as to whether a couple who are not legally married were nonetheless in a marriage-like relationship would also be informed by and conditioned upon the Secretary's opinion as to whether the persons in that relationship were " living separately and apart from the other person on a permanent or indefinite basis ". The parenthetical reference in s 4(2)(b)(iii) to both s 4(3) and s 4(3A) indicates that the Secretary's opinion is to be formed by reference to the criteria in each of these subsections. I have already referred to the reminder given by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 as to the distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists. Earlier in time and in a passage to which Gummow J drew attention in his judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 653-654 [136], Gibbs J had observed in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, in relation to the review of a "satisfaction" based decision by a court: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." In respect of the last of these observations made by Gibbs J, Gummow J added in Eshetu [1999] HCA 21 ; , (1999) 197 CLR 611 , at 654 [137]: " This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way." To similar effect is a passage in the speech of Lord Brightman in Puhlhofer v Hillingdon [1986] UKHL 1 ; [1986] AC 484 , at 518, referred to with approval by Gleeson CJ and McHugh J in their separate, joint judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 626-627 [41], with whose reasons Hayne J (at 659 [158]) relevantly agreed: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." The formation of an opinion for the purposes of s 4(2)(a) of the Act as to whether a legally married couple were living separately and apart on a permanent or indefinite basis is a paradigm example of the kind of statutory provision to which reference is made in the passages quoted from Eshetu and Buck v Bavone .