Al-Dmour v Minister for Immigration

[2017] FCCA 1755

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL-DMOUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1755

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – marriage terminated – sponsor in a same sex relationship with another person – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.357A
Migration Regulations 1994 (Cth)

Applicant: MOHAMMAD MAJED NAYF
AL-DMOUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: SYG 585 of 2017

Judgment of: Judge Driver

Hearing date: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 585 of 2017

MOHAMMAD MAJED NAYF AL-DMOUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Al-Dmour, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 January 2017.  The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Al-Dmour a temporary partner visa.  Background facts relating to the matter are set out in the Minister’s outline of submissions filed on 20 July 2017. 

2. Mr Al-Dmour, who is a citizen of Jordan, first arrived in Australia on 9 December 2010 as the holder of a subclass 573 student visa which ceased on 29 September 2012.  On 22 August 2012, Mr Al-Dmour applied for a protection visa which was refused by a delegate on 19 October 2012[1].  On 4 October 2013, Mr Al-Dmour applied for a subclass 820 partner visa on the basis of his relationship with the sponsor[2].

   [1] Court Book (CB) 201 at [8]

   [2] CB 1 to 44

3. Mr Al-Dmour and sponsor claimed to have met in June 2012 and were married in Australia on 3 October 2013[3].

   [3] CB 42

4. On 23 September 2014, the delegate wrote to Mr Al-Dmour inviting him to put forward any claims with respect to waiving criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations) and to provide further evidence of his relationship with the sponsor[4].

   [4] CB 51 to 55

5. On 23 October 2014, Mr Al-Dmour’s migration agent wrote to the delegate, relevantly submitting that[5]:

   a)Mr Al-Dmour was a victim of ill-advice by a migration agent as he was advised not to renew his student visa;

   b)the sponsor was severely depressed by the prospect of Mr Al‑Dmour being asked to go overseas;

   c)Mr Al-Dmour had never been an unlawful non-citizen and had lodged his partner visa before his bridging visa had expired;

   d)it would be difficult for the sponsor to travel to Jordan due to work commitments and cultural issues; and

   e)the security situation in the Middle East is extremely volatile, leaving the sponsor extremely worried about her husband's safety.

   [5] CB 56 to 57

6. Mr Al-Dmour also submitted a psychologist report concerning the sponsor's mental wellbeing[6].

   [6] CB 58 to 60

7. On 15 December 2015, the delegate wrote Mr Al-Dmour, inviting him to comment on adverse information. The delegate noted that the Minister’s Department (Department) had received information suggesting that Mr Al-Dmour and the sponsor were not in a genuine relationship as the sponsor was in a relationship with another person[7].

   [7] CB 106 to 127

8. On 4 January 2016, Mr Al-Dmour wrote to the delegate advising that his relationship with the sponsor had broken down in October 2015 and she had commenced a relationship with another woman[8].

   [8] CB 129 to 130

9. The delegate refused to grant the visa on 22 January 2016[9]. Having considered the totality of Mr Al-Dmour's circumstances, including the situation in Jordan and the length and extent of his relationship with the sponsor, the delegate was not satisfied that Mr Al-Dmour's circumstances justified a waiver of the Schedule 3 criteria. As a result, the delegate found that Mr Al-Dmour did not satisfy subclause 820.211(2)(d) of Schedule 2 to the Regulations.

   [9] CB 132 to 161

10. Mr Al-Dmour sought review of the delegate's decision on 10 February 2016, attaching a copy of the delegate's decision to the review application[10].

    [10] CB 162 to 173

11. On 28 November 2016, the Tribunal wrote to Mr Al-Dmour advising that it was unable to make a favourable decision based on the information before it and inviting him to appear before it on 25 January 2017[11]. By that invitation the Tribunal also requested that the applicant provide (by 18 January 2017) any relevant material upon which he wished to rely at the hearing, with respect to the requirements of Schedule 3.

    [11] CB 178 to 180

12. While Mr Al-Dmour did not provide any further information prior to or at the Tribunal hearing[12], on 18 January 2017 Mr Al-Dmour sought, and was granted, an adjournment of the scheduled hearing time[13].

    [12] CB 193 and 203 at [23]

    [13] CB 184 to 189

13. Mr Al-Dmour attended the Tribunal hearing with his migration agent on 25 January 2017[14] and was invited to give oral evidence about any matters that may be compelling for waiving the Criterion 3001[15].  Mr Al-Dmour gave evidence that it was not his fault that his relationship had ended and he had tried his best with the sponsor.

    [14] CB 194 to 195

    [15] CB 203 at [24]

14. The Tribunal affirmed the decision under review on 31 January 2017. The Tribunal held that Mr Al-Dmour did not satisfy criterion 3001 of Schedule 3 as his visa application was not made within 28 days of the date that his last substantive visa ceased. The Tribunal then considered whether there were compelling reasons for not applying the criteria. The Tribunal found none.

The present proceedings

1. These proceedings began with a show cause application filed on 28 February 2017.  Mr Al-Dmour continues to rely upon that application.  There are three unparticularised grounds in that application which are:

   1.     The Tribunal made jurisdictional error.

   2.     I did not get a fair hearing at the Tribunal.

   3.     The Tribunal identified wrong issue.

2. Mr Al-Dmour also relies upon an affidavit filed with his application, which I received as a submission.  The two submissions in it are:

   1.I did not get a fair hearing at the Tribunal.

   2.I did not end up the relationship and my relationship with my partner was genuine.

3. I have before me as evidence the court book filed on 5 May 2017.  

4. I invited oral submissions from Mr Al-Dmour this afternoon.  He considers the circumstances to be both unfortunate and unfair because he has done nothing wrong.  His former partner terminated the relationship which has resulted in an adverse outcome for him on his visa application.  He and the sponsor are now divorced.  Mr Al-Dmour maintains a sense of grievance because, in his view, having entered the relationship in good faith, he should not have been deprived of the visa he sought because of circumstances beyond his control and in which he was not to blame.  That may be so from a moral perspective, but on the basis of any legal analysis, there is no arguable case of jurisdictional error by the Tribunal. 

5. The Tribunal complied with its procedural code and there was no unfairness in the process followed by the Tribunal.  The Tribunal was bound by the legislative and policy regime bearing upon the class of visa sought.  The Tribunal, confronted with the technical requirements for the visa and the absence of any compelling circumstances to depart from those requirements, was bound to reach the conclusion it did. 

6. I otherwise agree with the Minister’s submissions in relation to the applicant’s grounds of review and submissions. 

7. As is noted above at [11], Mr Al-Dmour was invited to attend a hearing of the Tribunal to give evidence and present arguments. He was also specifically asked to provide to the Tribunal material upon which he wished to rely at the hearing, with respect to the requirements of Schedule 3 (which was provided to him with the invitation).

8. The Tribunal noted in its reasons for decision that Mr Al-Dmour did not provide any documentary evidence at all, other than his application attaching the delegate's decision, which made no reference to other claims.

9. The Tribunal also provided Mr Al-Dmour an opportunity at the hearing to provide oral evidence about any matters that may be compelling for waiving the criteria which, from a reading of the Tribunal's reasons Mr Al-Dmour did not seek to address in oral evidence either. It was a matter for Mr Al-Dmour to make his case to the Tribunal. There is nothing arising from the Tribunal's processes (which included a rescheduling of the hearing time in order to accommodate Mr Al‑Dmour's availability) that suggest Mr Al-Dmour was given anything other than a fair hearing which, by reference to Part 5 Division 5 of the Migration Act 1958 (Cth) (by operation of s.357A) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

10. I conclude Mr Al-Dmour is unable to advance an arguable case of jurisdictional error by the Tribunal. The decision is, therefore, a privative clause decision and the application will be dismissed. I so order, pursuant to rule 44.12(1(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Al-Dmour did not wish to be heard on costs. 

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  2 August 2017