Abu - JABAL v Minister for Immigration

[2015] FCCA 2128

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABU - JABAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2128

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 476

Migration Regulations 1994 (Cth), Schedule 2

Guven v Minister for Immigration & Anor [2006] FMCA 311
El Rifai v Minister for Immigration and Citizenship [2011] FMCA 9
Kaur v The Minister for Immigration and Border Protection [2014] FCA 1251
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant: MOHAMMAD AHMAD AMIN ABU - JABAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2213 of 2014

Judgment of: Judge Nicholls

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Sydney

Delivered on: 28 July 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 8 August 2014 and amended on 23 February 2015 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2213 of 2014

MOHAMMAD AHMAD AMIN ABU - JABAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 August 2014 and amended on 23 February 2015 seeking review of the decision of the then Migration Review Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate to refuse a Partner (Migrant)(Class BC) visa (“the visa”) to Mr Mohammad Ahmad Amin Abu-Jabal (“the applicant”).

Background

1. In evidence before the Court is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and the applicant’s affidavit of 23 February 2015. In his affidavit the applicant says that all the evidence he presented was genuine.  This includes evidence of family violence that occurred during his claimed relationship with the sponsor for this visa. The applicant also says, in his affidavit, that he is currently in the process of “taking” further legal opinion. However, he told the Court today that he did not speak to any lawyer either in making his application or before coming to Court.

2. The applicant is a citizen of Jordan who applied for a partner visa on 22 January 2008 (CB 1 to CB 33). On 12 August 2009, the sponsor wrote to the department informing that the relationship between the applicant and the sponsor was over and that they had separated on 16 September 2009 (CB 41). On 5 November 2009 the applicant’s representative wrote to the department to tell them that the “marital relationship” between the applicant and the sponsor had “irretrievably broken down” (CB 44 to CB 45). This letter enclosed a Form 1040 and other relevant documents provided by the applicant (CB 46 to CB 62). The applicant claimed that he had been the victim of family violence committed by the sponsoring spouse.

3. On 27 April 2010 the department wrote to the applicant requesting further information for his partner visa application (CB 63 – CB 66). The applicant responded on 7 July 2010 and provided two further Form 1040s, a doctor’s letter and a police clearance (CB 67 to CB 79).

4. The department wrote to the applicant on 21 September 2010, and again on 25 November 2010, due to a concern that “the documentary evidence submitted to date may not meet the requirements of the Migration Regulations in relation to domestic violence” to a level sufficient to make a favourable determination of the application (CB 80 to CB 85). In reply, the applicant sent a further Form 1040 statutory declaration, made by a social worker, to the department (CB 86 to CB 94).

5. On 29 August 2011, the department wrote to the applicant (CB 99 to CB 100). Relevantly, that (CB 99):

   “…Regulation 100.221(4)(b) of the Migration Regulations specify that, before considering any claims of family violence, I am required to consider whether you and your sponsor were in a genuine spousal relationship.

   Departmental records indicate that your sponsor was residing with your brother, Mr Osama Abu-Jabal, who is also the ex-husband of your sponsor, following your marriage to the sponsor. Other information available to the Department indicates that you, your sponsor and your brother were residing together after your arrival in Australia, until it was reported that your relationship with the sponsor had ended, after which you and your brother moved to another residence.

   This information may lead to a finding that your relationship with the sponsor was not genuine prior to that relationship ceasing.

   You are invited to comment on this information, and to provide any evidence that your relationship with your sponsor was genuine.”

6. The applicant responded to the department on 9 October 2011 (CB 101 to CB 103). He repeated his claims that the relationship between himself and the sponsor was genuine until the time of separation and that he had suffered family violence.

7. On 27 January 2012, the department again wrote to the applicant requesting further evidence that the applicant was “in a genuine spousal relationship” with the sponsor “prior to [the] relationship breaking down in August 2009” (CB 106 to CB 109). The applicant responded on 3 March 2012 and provided a number of documents to the department (CB 110 to CB 111).

8. The delegate refused the application for the visa on 17 July 2012 (CB 159 to CB 176). The delegate was not satisfied that the applicant was in a genuine and continuing spousal relationship prior to the breakdown of the claimed relationship, and therefore, did not meet cl.100.221(4)(b) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

9. The applicant applied for review of the delegate’s decision to the Tribunal on 9 August 2012 and provided a copy of the delegate’s decision to the Tribunal (CB 177 to CB 187).

10. The applicant, through his representative, provided a number of written submissions (with attached annexures) to the Tribunal (CB 222 to CB 240, CB 241 to CB 323, CB 324 to CB 329 and CB 330 to CB 337).

11. The applicant and his representative attended a hearing before the Tribunal on 3 June 2014 (CB 341 to CB 344). The applicant was sent a letter pursuant to s.359A of the Act from the Tribunal inviting the applicant to comment on, or respond to information which it considered would be the reason, or a part of the reason for affirming the decision under review (CB 347 to CB 349). The applicant’s representative responded on 18 June 2014 (CB 350 to CB 356).

12. The Tribunal affirmed the delegate’s decision on 16 July 2014 (CB 360 to CB 381). The applicant’s evidence, the evidence of the applicant’s brother and the evidence of the applicant’s friend, Ms Al-Hubani, that was before the Tribunal, is set out in the Tribunal’s decision record ([18] – [56] at CB 363 to CB 368).

13. The Tribunal set out the information in its decision record that it had sent to the applicant, pursuant to s.359A of the Act, including information as to “movement records”, the “brother’s awareness” of the relationship with the sponsor, “ownership of the property at Glenwood”, “shared bedroom” and “household expenses”, “working with [the applicant’s] brother” ([57] at CB 368 to CB 370). The applicant’s submissions in response to this information are summarised by the Tribunal in its decision record ([58] at CB 370 to CB 372).

14. The Tribunal saw the issue before it as being whether the applicant satisfied the criteria set out in cl.100.221 of the Regulations, such that the requirements for the grant of the visa could be met ([61] at CB 372).

15. The Tribunal, rejecting the applicant’s submission (at [65] at CB 374), noted that ([67] at CB 374):

    “The provisions of cl.100.221(4)(b) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing and the applicant would have otherwise at the criteria in cl.100.221(2) or (2A). This means that, while any claims of family violence does not have to cause the cessation of the relationship, any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation.”

16. The Tribunal, relying on Guven v Minister for Immigration & Anor [2006] FMCA 311, found that ([69] at CB 374):

    “…before assessing whether the applicant has suffered relevant family violence, the tribunal must assess whether at any point of time the applicant and the sponsor were in a spousal relationship within the meaning given to it in the Regulations, regardless or not of whether the applicant had been granted a subclass 309 Spouse (Provisional) visa.”

17. The Tribunal, in its consideration of whether the requirements for a spousal relationship, set out in reg.1.15A(3) of the Regulations, was met by the applicant, found that the applicant and his brother were not credible witnesses ([71] - [72] at CB 374 to CB 375). This was said to be based on “numerous inconsistences in the evidence given in the applicant’s evidence himself and also when compared” to the evidence previously given by the applicant and his brother to the department ([74] at CB 375).

18. The Tribunal found one of the most obvious inconsistencies in the evidence to be whether he shared a bedroom with the sponsor after arriving in Australia. Having regard to the applicant’s submissions in response to the s.359A letter, the brother’s evidence, and the evidence given at the hearing, the Tribunal found that “the fact that the applicant had provided inconsistent information to the department and to the Tribunal as to this aspect of his relationship with the sponsor calls into question the credibility of his evidence and whether the relationship was ever genuine ([74] – [75] at CB 375).

19. The Tribunal considered the matters prescribed by reg.1.15A(3) of the Regulations as to the “financial aspects of the relationship”, “the nature of the household”, the “social aspects of the relationship” and “nature of the commitment to each other” ([79] – [109] at CB 376 to CB 380).

20. The Tribunal found that ([111] at CB 381):

    “… the overwhelming weight of evidence indicates that the parties were never in a genuine and continuing relationship. The tribunal finds that the evidence provided by the applicant as to the relationship is not credible and that the documents provided in support of the application appear to have been generated purely for immigration purposes and did not provide any indication of a genuine relationship between the applicant and the sponsor. The applicant has conceded that he concealed any relationship he had with the sponsor from his brother. It is likely that any sort of relationship that he had with the sponsor was also concealed from his other family members. The evidence from friends did not provide any insight into the social aspects of the relationship and, indeed, the evidence provided by Ms Al-Hubani at the hearing contradicted the applicant's own evidence as to when he was living with the sponsor.”

21. That conclusion can plainly, if not fairly, be seen to have been arrived at with reference to all of the antecedent findings and analysis set out by the Tribunal. The Tribunal was not satisfied that at any time the parties were in a spousal relationship, and was therefore not satisfied that the applicant met cl.100.221(2), or cl.100.221(A), of the Regulations.

22. Having regard to the applicant’s claim, that he had suffered family violence committed by the sponsoring spouse, the Tribunal noted that to rely upon a claim that the he satisfied the criteria in cl.100.221(4)(b) of the Regulations, the applicant must have met the requirements of cl.100.221(2) or 2(A) of the Regulations. The Tribunal found that as the applicant and the sponsor were never in a spousal relationship, and did not meet the criteria in cl.100.221(4)(b) of the Regulations, “it was not necessary to assess the claim of family violence” ([1143] at CB 381).

Application

1. The applicant has provided a long narrative to the Court as the grounds of his application. It is in the following terms:

   “I was refused for visa subclass 100 Partner based on the DIBP officer assessment that I do not meet Subclass 100.221(2), (2A), (3), (4) or (4A) and that I do not satisfy Subclass 100.221(1) and do not meet the legal requirement in clause 100.221 in schedule 2 of the migration regulations.

   Please note that I firmly believe that Dept of Immigration and Border Protection and further Migration Review Tribunal have made an error in making a decision to refuse my application as I satisfy the provisions of 100.221 in schedule 2 of the migration regulations.

   I have attached the copy of Criteria under 100.2 (Primary Criteria) and I am only referring to what applies in my case in the following manner:

   100.2 Primary criteria

   Note The primary criteria must be satisfied by at least 1 member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

   100.22 Criteria to be satisfied at time of decision

   (1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).

   Here I am referring to 100.22 (4)

   (4)The applicant meets the requirements of this subclause if:

   (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse Provisional)) visa and either:

   • (i) continues to be the holder of that visa; or

   • (ii) is no longer the holder of that visa because the visa:

   (A) was granted before 1 November 1999; and

   (B) has ceased to be in effect because the applicant:

   (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

   (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

   (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and

   (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:

   • (i)either or both of the following:

   (A) the applicant;

   (B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring spouse;

   • (ii) the applicant:

   (A) has custody or joint custody of, or access to; or

   (B) has a residence order or contact order made under the Family Law Act 1975 relating to;

   at least 1 child in respect of whom the sponsoring spouse:

   (C) has been granted joint custody or access by a court; or

   (D) has a residence order or contact order made under the Family Law Act 1975', or

   (E) has an obligation under a child maintenance order made under the Family Law Act1975, or any other formal maintenance obligation.

   Note For special provisions relating to family violence, see Division 1.5.

   According to the above regulation, please note the following:

   (4) The applicant meets the requirements of this subclause if:

   (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:

   (i) continues to be the holder of that visa:

   (Please note that I entered Australia as a holder of Subclass 309 (Spouse (Provisional) Visa and I was continued to be the holder of that visa.

   (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and

   (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:

   • (i) either or both of the following:

   (A) the applicant;

   (B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring spouse;

   Please note that I suffered family violence during my relationship with my sponsoring spouse and Dept of Immigration and Border protection was provided with the evidences of my family violence. I have attached certain evidences of my family violence with this amended application.

   Please note that I am currently not represented by an legal practitioner and I have also sent a request to DIBP office to provide me a copy of my full file including certain evidences which were submitted to the case officer.

   I shall also be taking legal opinion on my matter, I am heavily affected financially and could not afford a legal representative and therefore its taking me a while to put my evidences together which refer to the law applicable in my case.

   I request the honourable court's consideration in allowing me time to submit my evidence during my case.”

   [Errors in original.] [Emphasis in original.]

Consideration

1. There are two matters of preliminary note here.  First, in his amended application, the applicant asks the Court to give him further time to submit his evidence. I note that in this regard the initial application to the Court was made on 8 August 2014.  However, even from the date of the amended application (23 February 2015), the applicant has had many months since the request for further time to properly prepare his case.

2. The second preliminary issue is that in the “grounds of the application”, the applicant seeks to complain about the delegate’s decision. As this was a decision reviewable by the Tribunal under Part 5 of the Act, and the decision was reviewed by the Tribunal, the Court has no jurisdiction to consider the delegate’s decision, and that aspect of the applicant’s complaint.

3. In essence, the applicant’s grounds, and his complaints before the Court, seek to repeat his arguments that were before the Tribunal.  That is, they seek to press the assertion that the applicant met, and continues to meet, the requirements for the grant of the visa. What is set out in the grounds emphasises that the applicant entered Australia, and continued to hold a relevant substantive visa, and suffered family violence, prior to the breakdown of the marriage.

4. As I have already stated, the reason that the Tribunal affirmed the delegate’s decision was that the Tribunal was not satisfied that the applicant, and his sponsor, were ever in a “genuine” marital or spousal relationship.  The relevant criteria for the grant of the visa required that the applicant satisfy the Tribunal that this was the case.

5. The Tribunal’s finding that the applicant, and his sponsor, had not been in a genuine relationship, and the various findings that informed that conclusion, were all reasonably open to the Tribunal to make on what was before it.  It must be said, that even on a fair reading of the applicant’s grounds, he does not seek to impugn that particular aspect of the Tribunal’s analysis.

6. Rather, the complaint, as expressed in the grounds of the amended application, is that the Tribunal should have found that he entered Australia as the holder of a relevant visa, suffered family violence, and therefore, should now be granted the visa for which he had applied.

7. Once the Tribunal had reached the conclusion, that he had not been in a genuine relationship, the Tribunal was correct in its understanding that it was not required to then go on and consider the issue of family violence.  I note the Minister’s reference in submissions, and reliance on El Rifai v Minister for Immigration and Citizenship [2011] FMCA 9, at [43]-[47] which state that, “[w]here the MRT found the parties were not in a genuine relationship it did not have to consider the applicant's claims of family violence” (see the respondent’s written submissions at [17]).

1. More recently, in Kaur v The Minister for Immigration and Border Protection [2014] FCA 1251, Justice Murphy stated that (at [43]):

   “As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence: see Alsalem at [17]; Yang v Minister for Immigration and Border Protection and Another [2014] FCCA 20 at [28]–[36]; Guven v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 311 at [24]–[25]; Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [42].”

2. The Tribunal made no legal error in its understanding of the applicable law, and no error in the application of that law to the applicant’s circumstances.

3. On any plain reading of the relevant regulatory scheme, that scheme seeks to address the situation where an applicant who had been in a genuine spousal relationship, which subsequently ceased because of family violence, should not be denied a visa simply because of the cessation of that genuine relationship.  The critical element is that a “genuine spousal relationship” must have existed.  The Tribunal found that there was no genuine spousal relationship. In this regard, this finding was reasonably open to the Tribunal on what was before it. It gave reasons for this finding. There is no error in the exercise of the Tribunal’s jurisdiction. 

4. The applicant’s submissions before the Court today, the material that he attached to his affidavit and, indeed, the grounds of the amended application themselves, seek to challenge that factual conclusion reached by the Tribunal.  In the circumstances the applicant, therefore, asks this Court to engage in impermissible merits review. 

5. For the sake of completeness, I should also note, that the Tribunal complied with its relevant procedural fairness obligations. The applicant was invited, pursuant to s.360 of the Act, to attend a hearing before the Tribunal. On the only relevant evidence before the Court, that is the Tribunal’s account of what occurred at the hearing, he was given an opportunity to give his evidence and make his arguments. The issue dispositive of the review of the delegate’s decision, which included the elements relevant to that issue, was exposed at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

6. That issue, of course, was the issue of the genuineness, or otherwise, of the claimed spousal relationship. The applicant would have also been on notice that that was the determinative issue in his case, given that this was a live issue following the delegate’s decision. Further, the Tribunal complied with its procedural fairness obligations pursuant to s.359A of the Act. It wrote to the applicant and gave him the opportunity to comment on, or respond to, information which the Tribunal said it considered would be the reason, or a part of the reason, for affirming the delegate’s decision.

Conclusion

1. In all, the grounds of the application and the submissions before the Court do not reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 7 August 2015