Case: Nassouh v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 788
Outcome: cited
In determining whether Ms Antipova and Mr Petrou had been in a de facto relationship for 12 months or more prior to the visa application, the Tribunal was bound to have regard to all of the matters referred to in reg 1.15A(3) of the Migration Regulations . That subregulation so provides and, as the Tribunal pointed out at [48] of its reasons, the mandatory nature of the provision was emphasised in Nassouh v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 788 at [10] . In conformity with its obligation, the Tribunal discussed in its reasons for decision each of those matters, to the extent to which there was evidence before the Tribunal relating to them. It did so under headings reflecting the requirements of pars (a), (b), (c) and (d) respectively of reg 1.15A(3). This arrangement of the Tribunal's reasons for decision makes it difficult for Ms Antipova to sustain the argument that the Tribunal failed to consider the mandatory considerations. 61 In its consideration of the financial aspects of the relationship, required by reg 1.15A(3)(a) of the Migration Regulations , the Tribunal first found that there was no evidence that, in the 12-month period it was considering, the parties combined their financial affairs or shared assets or liabilities. It acknowledged that Ms Antipova had given a reason for the lack of a joint bank account, namely that she and Mr Petrou had little money and there was no need. The Tribunal pointed out that there was no documentary evidence of shared household or daily living expenses in the relevant 12-month period, but appeared to accept that it would have been impractical to have had such evidence, because Mr Petrou was the sole lessee of the six-bedroom house in California in which Ms Antipova claimed to have lived with him and others. The Tribunal clearly did not focus solely on whether Ms Antipova and Mr Petrou had a joint bank account, as the submissions on behalf of Ms Antipova suggested. Nor did it ignore evidence of the joint burden of debt for legal expenses, loans and university fees. To the extent that such a joint burden might have existed, it plainly did not exist during the 12 months preceding the application for a visa. Indeed, as late as 1 September 2003, Ms Antipova's migration agent (who was also, apparently, a legal practitioner) submitted in writing to the Tribunal the statement that Ms Antipova and Mr Petrou 'do not have joint financial commitments because of their parlous financial position.' The Tribunal could hardly have made any finding other than the one it made on this aspect of the case. In weighing the credibility of Ms Antipova's case, the Tribunal was certainly entitled to use material that Ms Antipova had supplied to it, concerning the travel undertaken by her and Mr Petrou, when testing their assertion that, because they had very little money, they did not open a joint bank account and Ms Antipova did not apply for a divorce from her former husband. The material was relevant to this issue, and there was no element of conjecture involved in the Tribunal's reliance on it. 62 In considering the social aspects of the relationship during the 12-month period, as required by reg 1.15A(3)(c) of the Migration Regulations , the Tribunal dealt expressly with the material supplied by Ms Antipova from friends and family. As I have already pointed out, it gave little weight to the statements of Ms Downie, Ms Shpits and Ms Karagoz. It did not reject the statements as evidence that family and friends considered Ms Antipova and Mr Petrou to be a couple, and thereby used the statements for the purpose for which they were required under the regulation, and for the purpose for which they had been supplied to it. The Tribunal did point out, however, that the statements of Mr Petrou's parents did not bear upon whether Ms Antipova and Mr Petrou were living together at the relevant time. Since this was the crucial issue, the Tribunal could not be criticised for making this observation, although it did so under the heading dealing with the social aspects of the relationship, rather than under the earlier heading, dealing with the nature of the household, including the living arrangements. The Tribunal did not fail to consider the evidence of travel itineraries, air tickets and passport copies, as Ms Antipova contended. It detailed every document in its reasons for decision. The material indicated that the parties travelled together in March 2002. Although evidence of later events can sometimes cast light on the nature of a relationship at an earlier time, it is hard to see, and counsel for Ms Antipova never explained, how the evidence of joint travel in March 2002 could bear upon the nature of the relationship between Ms Antipova and Mr Petrou in May and June 2001. The Tribunal was not bound to look at this material in relation to the issue of the social aspects of the relationship at the relevant time.