ABBOUD v Minister for Immigration
[2017] FCCA 2047
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABBOUD v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2047 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK, Subclass 820) visa – the Tribunal was not satisfied that the applicant and sponsor are or had ever been in a genuine and continuing exclusive relationship the sponsor’s homosexuality was a relevant and reasonable consideration for the Tribunal to take into account – the Tribunal’s adverse credibility findings in respect of the applicant were open and cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations, 820.211, 820.221 of Schedule 2, Item 3001 of Schedule 3 |
| Applicant: | LINDA ABBOUD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 740 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 29 August 2017 |
| Date of Last Submission: | 29 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Bailey |
| Solicitors for the Applicant: | Firmstone & Associates |
| Solicitors for the Respondents: | Ms E Cheesman Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 740 of 2017
| LINDA ABBOUD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 February 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK, Subclass 820) visa.
The applicant is a citizen of Lebanon who arrived in Australia in December 2009 on a student visa which ceased on 6 June 2012. On 25 October 2011 the applicant lodged an application for protection which was refused by the delegate on 23 March 2012. That decision was affirmed by a differently constituted Tribunal on 20 July 2012. On 20 August 2012 the applicant sought ministerial intervention unsuccessfully. On 22 February 2013 the applicant sought judicial review of the decision made by a differently constituted Tribunal decision, but withdrew those proceedings on 18 December 2013.
The applicant appears to have remained in Australia unlawfully until making the application on 2 October 2014 for a Partner visa on the basis of her relationship with the sponsor. The sponsor is an Australian citizen by grant on 24 October 2014 as a result of a successful Protection visa application that the sponsor lodged in February 2011, arriving in Australia as a student from Lebanon. The sponsor was granted a protection visa because he claimed persecution on the basis of his homosexuality.
On 3 February 2016 the delegate found that the applicant failed to meet the criteria for the grant of a visa and refused the same.
The Tribunal’s decision
The applicant made an application for review on 18 February 2016. By letter dated 19 January 2017, the Tribunal sent the applicant an invitation to comment on or respond to information. That letter expressly referred to the sponsor refusing to tell the Tribunal during the hearing the basis upon which he claimed refugee status in Australia. The sponsor claimed that he had not told the applicant because it was private, and that everyone has secrets. The letter noted that the Department records indicate that the sponsor was granted a protection visa because he had claimed persecution on the basis of his homosexuality. The letter identified that if the sponsor is a homosexual and has not told the applicant it is difficult to see how he can be committed to a genuine, ongoing and exclusive married relationship with the applicant, or indeed, how the applicant could be committed to such a relationship when the applicant is not aware that the sponsor is a claimed homosexual.
The Tribunal raised the issue of homosexuality and how that would impact on the marriage. The Tribunal observed it is difficult to see how the sponsor can have a commitment to the marriage to the applicant when he has not told the applicant about his homosexuality. The Tribunal also raised the issue of whether or not the sponsor was the father of the applicant’s child.
The applicant’s migration agent responded to the letter on 24 January 2017 and relevantly noted:
We are instructed by the review applicant’s husband that he wishes to keep homosexual desires in the past and that since meeting his wife he has fallen in love with her and has reformed. He now considers himself a heterosexual man who earnestly desires to keep his homosexual desires in the past.
The submission noted that the sponsor claimed his past homosexual tendencies are no longer applicable in his life as he is now a married heterosexual man. The submission repeated the proposition that the sponsor was a man who had past homosexual tendencies, but has since “reformed” and is now in a genuine heterosexual relationship. The submission advanced that past homosexual desires and subsequently entering into a genuine heterosexual relationship should not be viewed as being mutually exclusive.
It was submitted that it was not irrational or unreasonable for a former homosexual man to undergo a radical change in his sexual desires and now be fully in love and dedicated to his wife and family. The submission identified that the contrary may also apply.
The migration agent noted that the sponsor submitted that he wants to keep his homosexuality in the past and is not comfortable in discussing the subject with his wife or any other third party. The submission advanced that his reluctance to do so is attributable to a desire to escape from what he views as unvirtuous past conduct/desires and a validation of his current love and dedication for his wife and daughter.
The submission also advanced that the sponsor was motivated by a desire to avoid unnecessary tension between himself and his wife by refraining from discussing his past conduct/sexuality. It was submitted that this was equivalent to a married person not wanting to discuss with their current partner past relationships/sexual activities.
The hearing on 18 January 2017
The Tribunal invited the applicant to attend a hearing on 18 January 2017. The applicant sought an adjournment of that hearing but it was refused, and the applicant was given the opportunity to give evidence and present submissions by video link. The applicant agreed to attend on that basis on 18 January 2017, and the applicant appeared with her migration agent. Evidence was also taken by the sponsor, and the applicant had the opportunity to give evidence and present arguments.
The Tribunal identified the applicant’s background and the finding of the delegate that there was insufficient evidence to make a finding that the parties were in a genuine, ongoing and exclusive relationship as required by the Migration Act. The Tribunal referred to the delegate’s decision and noted that the delegate placed a great deal of weight on the applicant’s long period of unlawfulness remaining in Australia. Further, the delegate found that there were not compelling reasons for not meeting the Schedule 3 criteria and refused the grant of a visa.
The Tribunal identified the material that was provided to the Tribunal. The Tribunal identified that the issue in the present case is whether the applicant spouse is the spouse of the sponsor within the meaning of the Migration Act, and whether there are compelling reasons to not apply the Schedule 3 criteria.
The Tribunal also identified the letter sent to the applicant inviting comment referred to above. The Tribunal correctly summarised the response in relation to the sponsor now considering himself a heterosexual man who asserted he has “reformed” and is now in a genuine heterosexual relationship.
Consideration of whether a spousal relationship existed
The Tribunal found the applicant and the sponsor not to be credible witnesses, and found their evidence evasive, unreliable and untruthful. The Tribunal did not accept any of the claims advanced by the applicant and the sponsor. The Tribunal addressed the issue of homosexuality of the sponsor, and in particular, the submission advanced by the sponsor that he was now “reformed”. The Tribunal expressed concern in relation to the sponsor’s use of the term “reformed” in relation to his homosexuality. It was in that context that the Tribunal formed the view that the sponsor has no genuine commitment to being in an ongoing exclusive spousal relationship with the applicant or indeed, that he ever has been in such a relationship. The Tribunal found the sponsor still holds a well-founded fear of returning to Lebanon on the basis of his homosexuality.
The Tribunal addressed the applicant’s alleged mental health issues and, having considered the totality of the evidence, rejected the psychologist’s report as evidence supporting the applicant’s claims.
The Tribunal found the applicant and the sponsor’s evidence to be lacking in credibility, evasive and untruthful. The Tribunal found the applicant and sponsor’s evidence to be wholly unreliable. The Tribunal did not accept the applicant’s claims that she cannot return to Lebanon because she has a well-founded fear of persecution on the basis of her relationship with her family.
The Tribunal, identifying its concerns in relation to the credibility of the applicant and the sponsor, did not accept that the evidence provided was reliable, or that the financial aspects of the parties’ relationship support its finding that they were in a genuine, continuing and exclusive spousal relationship envisaged by the Migration Act.
The Tribunal expressly addressed the social aspects and was not satisfied the social aspects of the parties’ relationship support a finding that they are in a genuine, continuing, exclusive spousal relationship.
The Tribunal was not satisfied that the sponsor was the biological father of the applicant’s child. The Tribunal was not satisfied that the sponsor has ever or will in the future have a commitment to support and raise that child.
The Tribunal referred to the nature of the person’s commitment to each other and found by reason of the credibility concerns, that the Tribunal was not satisfied that the parties have ever lived together in a shared household, or, if they have that it was in a spousal relationship.
The Tribunal was not satisfied at the time that the visa application was made or at the time of decision the parties were in a spousal relationship. The Tribunal found that there is no evidence before the Tribunal that the applicant meets the alternative criteria under cl.820.211(2)-(3) or cl.820.211(7)-(9) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The Tribunal therefore found that the applicant does not meet the criteria under cl.820.211 or cl.820.221 of Schedule 2 to the Regulations.
Consideration of Schedule 3 criteria
The Tribunal then turned to the criteria under Schedule 3 whereby a person who is not the holder of a substantive visa at the time of the application must meet certain criteria in Schedule 3. In order to satisfy criterion 3001 of Schedule 3, the application for a visa had to be lodged within 28 days of the relevant day. The relevant day in the present case was 7 June 2012. The Tribunal found that the visa application had not been made within 28 days of the relevant day, and that the applicant did not satisfy the criteria under 3001 of Schedule 3.
Whether there are compelling reasons to waive the Schedule 3 criteria
It was in those circumstances that the Tribunal turned to the issue of whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal was not satisfied that the applicant could not have lodged the application subject to this review, whilst she still held a substantive visa, and further found that there were no reasons outside her control for not doing so.
The Tribunal found that the applicant deliberately and knowingly set about to manipulate her circumstances in an effort to give rise to compelling reasons. The Tribunal was not satisfied that the parties are or had ever been in a genuine and continuing exclusive spousal relationship as envisaged by the Migration Act. The Tribunal found that the parties’ relationship was not a compelling reason to waive the Schedule 3 criteria.
The Tribunal was not satisfied that the applicant cannot reasonably and safely return to Lebanon to lodge her Partner visa application should she wish to do so. The Tribunal was not satisfied that the applicant and her daughter cannot reasonably and safely return to Lebanon to live on their own. The Tribunal was not satisfied the applicant’s daughter, as potentially an Australian citizen, will be adversely affected if she is required to return to Lebanon with the applicant.
The Tribunal was not satisfied the sponsor will be adversely affected if the applicant and her daughter return to Lebanon. The Tribunal was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal found the applicant failed to meet the criteria under cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations and affirmed the decision under review.
Before this Court
The grounds in the application are as follows:
Ground 1;
The Second Respondent committed a jurisdictional error by making findings which were based on irrational or illogical reasoning.
Particulars
. The Second Respondent concluded at para 63 of the decision record that it cannot be satisfied in these circumstances that a sponsor would continue to want to, or be authentically able to, remain a “reformed homosexual man” and hence be able to be in a committed, genuine, ongoing and exclusive relationship as a man and wife with the applicant.
. The Second Respondent further concluded at para 63 of the decision record that it formed a view that the sponsor has no genuine commitment to being in an ongoing, exclusive spousal relationship with the applicant, or indeed, that he ever has been in such a relationship.
. The Second Respondent consequently formed the illogical view that as the sponsor was a homosexual man; he remains deeply conflicted and thus is incapable to subsequently entering into a committed, genuine, ongoing and exclusive heterosexual relationship.
Mr Bailey of counsel took the Court to the Tribunal’s reasoning, and particularly to
inparagraph 63 which is as follows:63. The Tribunal does not disagree that it may well be the case that some heterosexual men have homosexual desires, or vice versa, or that some people are genuinely bisexual. However, this is not what the sponsor is claiming. The sponsor is claiming that he was a homosexual man - not that he merely had homosexual desires or homosexual relationships. Be that as it may, the Tribunal is also concerned that if the sponsor considers that his past homosexuality was "unvirtuous", he arguably remains deeply conflicted and it is not clear to the Tribunal that he is genuinely committed to his “reformation” from a homosexual man to a heterosexual man. This leads the Tribunal to form a view that he has no genuine commitment to being in an ongoing, exclusive spousal relationship with the applicant, or indeed, that he ever has been in such a relationship.
Mr Bailey of counsel also took the Court to the reasoning of the Tribunal starting in paragraph 59 as follows:
59. It seems to the Tribunal that the gay rights movement has, for decades, fought for the acceptance of homosexuality as a sexual orientation from birth, NOT something that the sponsor appears to be claiming is a matter of choice or will or accident. If the applicant can choose to be a heterosexual man, then presumably he can again choose at some time in the future to be a homosexual man again. He could also have chosen not to be a homosexual man while he was in Lebanon and hence not have been in a position where he had to flee his country for fear of persecution on the basis of that homosexuality. Certainly, if he had told the delegate that his homosexuality was a matter of choice and something he could change and become a heterosexual man, his claims for the protection of the Australian government and community would have been rejected.
Mr Bailey of counsel sought to argue that it was not a rational or logical finding for the Tribunal to hold that the applicant may not be a reformed homosexual. Mr Bailey of counsel acknowledged discomfort with the use of the term “reformed”, but submitted that that was what the sponsor in the present case had advanced, and that the Tribunal’s reasoning that the applicant remained a homosexual was illogical and irrational.
Consideration
For the reasons given by the Tribunal, the finding by the Tribunal as to whether the sponsor was a homosexual, and whether the sponsor was ever in a genuine and committed relationship with the applicant, were open on the evidence before the Tribunal. The Tribunal’s findings were reasonable and cannot be said to lack an evident and intelligible justification. The sponsor’s homosexuality was a relevant and reasonable consideration for the Tribunal to take into account, as the sponsor had obtained a protection visa on the basis of his alleged fear as a homosexual.
The sponsor’s conduct in the course of the hearing in declining to inform the Tribunal as to the basis upon which he obtained protection was an obvious matter affecting the credibility of the sponsor. The alleged failure to disclose to the applicant the sponsor’s homosexuality was a further relevant and logical matter for the Tribunal to take into account in its reasoning in determining whether or not to accept the sponsor’s evidence. This was open to the Tribunal. The adverse credibility findings made by the Tribunal in respect of the applicant were on the material before the Tribunal, logical, rational and reasonable.
It was also relevant for the Tribunal to take into account that the sponsor did not make any claim to fear harm in Lebanon because he advanced it was not the sponsor’s application but that of the applicant. The reasoning of the Tribunal was not irrational or illogical or unreasonable. Ground 1 fails to make out any jurisdictional error.
Conclusion
The application is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 September 2017
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