ALI v Minister for Immigration
[2018] FCCA 835
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 835 |
| Catchwords: MIGRATION – Application for judicial review of decision to refuse to grant Applicant a Partner (Temporary) (Class UK) (subclass 820) visa – whether the Tribunal erred in failing to take into account evidence that was credible and relevant concerning “all of the circumstances of the relationship” as required by reg.1.15A of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in finding that the marriage was not entered into for genuine purposes – whether the Tribunal’s findings were illogical – held no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 348 Migration Regulations 1994 (Cth), reg.1.15A, sch.2 cls.820.211, 820.221 |
| Cases cited: Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | IBRAHIM ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2730 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 20 November 2017 |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Applicant’s amended application for judicial review filed on
1 July 2016 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2730 of 2015
| IBRAHIM ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 18 November 2015, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), dated
19 August 2014, refusing to grant the Applicant a Partner (Temporary) (Class UK) (subclass 820) visa (“the visa”) under s.65 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal’s decision is at Court Book (“CB”) 229-233.
The material before the Court is the Applicant’s amended application for judicial review filed on 1 July 2016, the Minister’s Response filed on 21 December 2015, the Applicant’s Outline of Submissions filed on 1 July 2016, the Minister’s Outline of Submissions filed on 20 July 2016 and the Court Book.
The Applicant is a citizen of Lebanon and came to Australia in November 2012 on a Prospective Marriage visa (subclass 300), which was cancelled shortly after the Applicant’s arrival in Australia due to the breakdown of his relationship (CB 127). In early 2013, the Applicant met the sponsor, Ms Anam Zreika (“the Sponsor”) in Australia (CB 127) (collectively, “the parties”). The Applicant and the Sponsor were subsequently married on 22 April 2014 (CB 38) and the Applicant, with the support of the Sponsor, applied for the visa on 14 May 2014 (CB 1-54). In his application for the visa, the Applicant provided evidence of his relationship with the Sponsor, which was substantiated by the Sponsor and supporting witnesses.
On 11 June 2014, and again on 16 June 2014, the Sponsor sent a letter to the Department of Immigration and Border Protection (“the Department”) withdrawing her support for the Applicant’s application for the visa (CB 63-68). On 25 June 2014, the Department invited the Applicant to comment on the breakdown of his relationship with the Sponsor and the Sponsor’s subsequent withdrawal of sponsorship
(CB 70-73).
By a decision dated 19 August 2014, a delegate of the Minister (“the Delegate”) refused to grant the Applicant the visa (CB 75-98). The Delegate found that the Applicant did not satisfy the requisite provisions of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Applicant and the Sponsor divorced on 2 August 2015
(CB 165).
Legislative Provisions
The Tribunal refused to grant the Applicant the visa on the basis that the Applicant did not satisfy cls.820.211 and 820.221 of sch.2 to the Regulations because the Tribunal was not satisfied that the Applicant was the spouse of the Sponsor at the time the Applicant applied for the visa.
The definition of “spouse” is found in s.5F of the Act, which provides as follows:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
(emphasis in original)
Regulation 1.15A of the Regulations includes the following provisions for determining if two people are in a spousal relationship for the purposes of satisfying s.5F of the Act:
1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Tribunal Decision
Under the heading “At the Tribunal hearing”, the Tribunal set out the evidence given by the Applicant at the hearing, which was relevantly, for the purpose of this judicial review, as follows (CB 231 at [16]-[18]):
16. [The Applicant] provided the following evidence; the parties met at a chicken shop where [the Applicant] worked. [The Sponsor] was a customer and they began talking to each other and [the Applicant] obtained [the Sponsor’s] telephone number. After some months the parties fell in love and in the middle of 2013 began thinking about their future. During this time [the Applicant] financially helped [the Sponsor’s] family. On 22 April 2014, the parties married and celebrated at a barbeque at [the Sponsor’s] mother’s home.
17. After they married they lived together with [the Sponsor’s] mother and two sisters. About ten days later [the Applicant] found alcohol and drugs under the parties’ bed. The parties had a lot of problems and [the Sponsor] was yelling at [the Applicant]. [The Sponsor’s] mother asked the parties to find somewhere else to live because she was concerned about the negative impact the parties’ relationship may have on her other daughters. The parties then moved in with [the Applicant’s] friends. After the parties married they lived together for three weeks. The parties did not have a sexual relationship as [the Sponsor] refused to be involved in this part of the parties’ relationship. Shortly after their separation [the Sponsor] travelled to Lebanon and became involved in another relationship.
18. Both pre and post marriage [the Applicant] financially assisted [the Sponsor’s] family and submitted to [the Sponsor’s] demands for money.
It is to be noted that the Applicant also gave evidence at the Tribunal hearing in support of his claims that he suffered family violence at the hands of the Sponsor and her family (CB 231 at [19]).
Under the heading “Are the parties married?”, the Tribunal found that at the time of the visa application the Applicant and the Sponsor were married to each other under a marriage that was valid, satisfying s.5F(2)(a) of the Act (CB 232 at [22]). The Tribunal then turned to consider whether the Applicant was the spouse of the Sponsor within the meaning of s.5F(2)(b) to (d) of the Act by reference to all of the circumstances of the relationship, including the matters specified in reg.1.15A(3) of the Regulations (CB 232 at [23]-[25]). In relation to the evidence, the Tribunal relevantly stated as follows (CB 232 at [26]-[27]):
26. There is little evidence that the parties were in a spousal relationship, at the time of visa application. [The Applicant] told the Tribunal that the parties shared a joint bank account. [The Applicant] deposited funds into the account and the parties withdrew from the account as they needed money. [The Applicant] would sometimes give [the Sponsor’s] mother $200 or $100. The parties did not have any other financial assets or relationship. [The Applicant] was part of a group of people who deposited $500 into a financial pool. The group took turns in receiving the total pool of money. Due to [the Sponsor’s] demands on [the Applicant] for money he approached the leader of the group and borrowed $6,000. This money was used to provide [the Sponsor] with money and to pay for the visa application fee. There is some evidence that the parties resided at the same address. In [the Sponsor’s] relationship statement she claimed that the parties resided with her mother until they are financially capable of finding their own home (refer: D1 f15). There is no evidence how they supported their living together in a shared and supportive way. [The Applicant] stated that [the Sponsor] did the cleaning and her mother did the cooking and he would sometimes bring things home. [The Applicant] provided evidence in his statement at the time of application that his commitment to [the Sponsor] is genuine, strong continuing and to the exclusion of others (refer: D1 f16). There is little evidence as to how the parties shared their lives together or planned for their future or had committed each other. Third party statutory declarations do not give evidence about the parties’ relationship rather they are general in nature (refer: D1 f1-f14, T1 f72). The parties have not provided any photographic evidence about their activities together. There is no evidence from the parties’ families as to how they saw the parties’ relationship. There is no evidence about the support and companionship the parties provided each other or about their daily lives.
27. The evidence before the Tribunal is that the parties lived together from 22 April 2014, for approximately three weeks. The visa application was lodged on 14 May 2014, which is also approximately three weeks from when they began living together. On this evidence the parties were either on the verge of, or had, separated from each other at the time of application.
Under the heading “FINDINGS”, the Tribunal stated that “[it] found [the Applicant] to be honest and credible and accept[ed] [the Applicant’s] evidence…” (CB 233 at [28]).
The Tribunal then pronounced the following findings (CB 233 at [29]-[32]):
29. The Tribunal has considered all of the evidence, individually and as a whole. On the evidence before it, the Tribunal is not satisfied that at the time of application [the Sponsor] entered into her marital relationship with [the Applicant] for genuine purposes because on the evidence [the Sponsor] demanded money, for her own purposes, from [the Applicant] both prior to and after their marriage and there is little other evidence to support her intentions. The evidence also is that [the Sponsor] was either on the verge of or had separated from [the Applicant] at the time of visa application.
30. The Tribunal, on the evidence, is not satisfied that a spousal relationship existed between [the Applicant] and [the Sponsor] at the time of application. Accordingly [the Applicant] cannot satisfy cl.820.211(2). Therefore, the Tribunal has not considered [the Applicant’s] claimed family violence.
31. The Tribunal is not satisfied that at the time of application the sponsor had a mutual commitment to a shared life as spousal partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore does not meet the requirements of s.5F of the Act.
32. Given these findings the Tribunal is not satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.
Judicial Review
Ground 1
The Applicant’s first ground of judicial review as set out in his amended application is as follows:
1. In making its decision the Tribunal exceeded its jurisdiction or committed a jurisdictional error in that it failed to carry out the review required by s.348(1) of the Migration Act 1958.
There are two parts to this ground. For the purpose of this decision, the first part will therefore be referred to as “Ground 1A” and the second part will be referred to as “Ground 1B”.
The Applicant’s general submission in relation to Ground 1 is that the Tribunal was required by s.348 of the Act to review a decision not to grant the Applicant the visa, which was made on the basis that the Applicant did not meet the definition of a spouse, as set out in s.5F of the Act and reg.1.15A of the Regulations, and, therefore, did not satisfy the requirements of cls.820.211 and 820.221 of sch.2 to the Regulations. Relying on various authorities, the Applicant submits as follows:[1]
18. In order to review the decision and thereby satisfy s.348 of the Act, the Tribunal must consider the visa application.[2] That is, it must “view or contemplate attentively”, or “examine”, “scrutinise”, or “fix the mind upon” or “reflect upon” the application.[3] In order to do this, it was required to consider the material that was before it.[4]
(footnotes and emphasis in original)
[1] Applicant’s Outline of Submissions filed on 1 July 2016 at [18].
[2] Vu v Minister for Immigration & Anor [2014] FCCA 2579 at [17].
[3] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [71]–[72] (Heerey, Goldberg and Weinberg JJ).
[4] Vu v Minister for Immigration & Anor [2014] FCCA 2579 at [19].
Ground 1A
Ground 1A of the Applicant’s amended grounds for judicial review is as follows:
[1A]. The Tribunal erred in failing to take into account evidence that was credible and relevant concerning ‘all of the circumstances of the relationship’ as required by regulation 1.15A(2).
Particulars
i. In asking itself the question ‘are the parties married?’ at [22] - [27] of it decision record, the Tribunal came to the conclusion (at [26]) that there was little evidence of a spousal relationship in circumstances where it had failed to take into account evidence before it of the duration of the relationship prior to the decision to marry, as required by regulation 1.15A(3)(d)(i).
ii. The Tribunal went on at [29] to find that it was ‘not satisfied that at the time of the application [the Sponsor] entered into her marital relationship with [the Applicant] for genuine purposes because on the evidence [the Sponsor] demanded money, for her own purposes, from [the Applicant] both prior to and after their marriage and there is little other evidence to support her intentions’.
iii. In so finding the Tribunal failed to take into account the evidence of the relationship having existed for just over a year at this time (CB 8, 22, 211) and being one that was happy until a short time before the marriage (CB 211).
(emphasis in original)
The Applicant’s submission in relation to Ground 1A is that in concluding that “[t]here is little evidence that the parties were in a spousal relationship, at the time of [the] visa application” (CB 232 at [26]), the Tribunal “…failed to take into account the considerable evidence before it that the parties had been in a relationship of more than [one] year’s duration before they married (CB 8, 22, 127, 190, 204, 211)…”[5] The Applicant submits that the duration of the relationship is a matter that must be taken into consideration in determining if two people are in a spousal relationship pursuant to reg.1.15A(3)(d)(i) of the Regulations.
[5] Applicant’s Outline of Submissions filed on 1 July 2016 at [21].
Counsel for the Applicant submits that it is apparent from the Tribunal’s reasoning, where it referred to there being “…some evidence that the parties resided at the same address…” (CB 232 at [26]) and where it noted that “…the parties lived together from 22 April 2014, for approximately three weeks…” (CB 232 at [27]), that the Tribunal had, in considering the evidence before it, conflated two separate considerations under the Regulations, namely, the questions of cohabitation (reg.1.15A(3)(d)(ii) of the Regulations) and duration (reg.1.15A(3)(d)(i) of the Regulations).
The Applicant concedes that, in its decision record, the Tribunal referred to how the parties met in the first year of their relationship (CB 231 at [16]). The Applicant argues, however, that this reference is found in the part of the decision record where the Tribunal is summarising the evidence. The Applicant argues that it is not apparent from the Tribunal’s decision record that the Tribunal considered this evidence when it turned to consider the question “Are the parties married?” (CB 232 at [26]-[27]) or when the Tribunal made its findings (CB 233 at [29]-[32]).
The Applicant further submits that the Tribunal’s finding that it was “…not satisfied that at the time of the application [the Sponsor] entered into her marital relationship with [the Applicant] for genuine purposes because on the evidence [the Sponsor] demanded money, for her own purposes, from [the Applicant] both prior to and after their marriage and there is little other evidence to support her intentions…” (CB 233 at [29]) overlooks the fact that a relationship of one year’s duration existed between the Sponsor and the Applicant prior to the visa application. The Applicant submits that in making this finding, the Tribunal:[6]
…failed to consider the evidence before it of a relationship that had been ongoing for just over a year prior to the marriage, and which had been happy and trouble free up until a short period before the marriage…
[6] Ibid at [26].
The Minister’s submissions in relation to Ground 1A are as follows:[7]
[7] Minister’s Outline of Submissions filed on 20 July 2016 at [17]-[20].
a)the Tribunal stated that it had regard to all the evidence before it at the hearing (CB 232 at [25]); set out the history of the parties’ relationship, including when the parties met and married (CB 230 at [10]); set out the circumstances in which the parties had met, when they “fell in love”, and when they had started thinking about their future (CB 231 at [16]);
b)the Tribunal was not required to expressly refer to the duration of the parties’ relationship under the heading “Are the parties married?” and, in any case, on a fair reading of the Tribunal’s reasons as a whole, the duration of the parties’ relationship was taken into account (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [47]);
c)the reasons for the Tribunal’s decision should not be construed minutely and finely with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (“Wu Shan Liang”) at 272);
d)
the Tribunal’s finding that, as at the time of the application for the visa, the Sponsor did not enter into her relationship with the Applicant for genuine purposes was open to the Tribunal on the evidence before it. In summary, the evidence before the Tribunal was that the Sponsor had demanded money from the Applicant for her own purposes both prior to and after their marriage; there was little other evidence to support the Sponsor’s intentions; and the Sponsor was either on the verge of or had separated from the Applicant at the time the Applicant lodged his visa application
(CB 233 at [29]);
e)the Tribunal was entitled to accept or reject or give such weight to the evidence given as it thought appropriate in all the circumstances (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]);
f)
the submission by the Applicant that there was “considerable evidence” before the Tribunal regarding the parties’ intentions to provide mutual commitment and support to one another is simply an invitation to the Court to engage in impermissible merits review (Wu Shang Liang at 272). The Tribunal did not say there was no such evidence but, rather, that there was “…little other evidence to support [the Sponsor’s] intentions…”
(CB 233 at [29]). This statement does not permit an inference that the Tribunal failed to have regard to the Sponsor’s intentions altogether.
Consideration
When one has regard to the evidence provided to the Tribunal by the Applicant, the Sponsor and supporting witnesses by way of statutory declarations, the Tribunal was, without doubt, correct to say in its decision record that “[t]here is little evidence that the parties were in a spousal relationship, at the time of [the] visa application…” (CB 232 at [26]). During the hearing before this Court, Counsel for the Applicant properly conceded this. Counsel for the Applicant submitted, however, that there was evidence before the Tribunal that the parties were in a relationship for a period of one year prior to the application for the visa being made. It is this evidence that the Applicant claims the Tribunal overlooked in making its findings.
I do not agree with the Applicant’s submissions. The Tribunal was, without doubt, aware of the circumstances of the commencement of the relationship between the Applicant and the Sponsor in 2013 and its duration prior to the lodgement of the Applicant’s visa application. This is made clear in the Tribunal’s decision record (CB 231 at [16]).
It is correct that one of the matters the Tribunal must have regard to in making its findings as to whether the parties were in a spousal relationship is the duration of the relationship pursuant to reg.1.15A(3)(d)(i) of the Regulations. However, there are many other matters under reg.1.15A(3) of the Regulations that the Tribunal is obliged to have regard to. Indeed, the Tribunal, as both the Applicant and the Minister have recognised, is obliged to have regard to the whole of the circumstances in deciding whether the Applicant was the spouse of the Sponsor at the time the visa application was made.
The Tribunal is not required to give detailed consideration to each and every matter specified under reg.1.15A(3) of the Regulations, as well as the whole of the circumstances. In my opinion, it is sufficient that it is apparent from the Tribunal’s decision record that the Tribunal had regard to the evidence bearing upon the matters it was required to have regard to under reg.1.15A(3) of the Regulations.
Counsel for the Applicant referred to various material that was before the Tribunal in support of the Applicant’s assertion that there was “…considerable evidence before [the Tribunal] that the parties had been in a relationship of more than [one] year’s duration before they married…”[8] Whether or not there was “considerable” evidence is not a question for this Court to decide. I agree with the submission of the Minister that to decide whether there was considerable evidence before the Tribunal would, in effect, require this Court to engage in impermissible merits review. The fact is that the Tribunal properly identified that the duration of the parties’ relationship, prior to the Applicant’s application for the visa, was a period of one year. It is evident from the Tribunal’s decision record that what concerned the Tribunal was the fact that during this period, and at the time of the application for the visa, there was little evidence that the Applicant and the Sponsor were in a spousal relationship for the purposes of s.5F of the Act and reg.1.15A of the Regulations.
[8] Ibid at [21].
The Tribunal clearly gave weight to certain matters in making its decision (CB 232-233 at [26], [29]). The Tribunal was entitled to engage in this process in conducting its review (see WAEE at [47]). I do not agree with the Applicant’s submission that the Tribunal conflated the considerations of the duration of the parties’ relationship with the length of time that they had lived together, both of which were matters specified under reg.1.15A(3)(d) of the Regulations. The reference in the Tribunal’s decision record to the time the Applicant and the Sponsor cohabitated arises in the context of the Tribunal’s statement that “…the parties were either on the verge of, or had, separated from each other at the time of [the visa] application”
(CB 232 at [27]). The question of the duration of the relationship would not have been relevant to this consideration. This statement in the Tribunal’s decision record is the subject of Ground 1B of the Applicant’s amended grounds of judicial review and is considered below.
The Applicant’s submission that the Tribunal’s finding regarding the lack of genuineness on the part of the Sponsor in entering into a marriage relationship with the Applicant fails to consider a year-long relationship prior to the marriage which had been “happy and trouble free” (see [22] above) is inconsistent with the evidence the Applicant relied upon at the Tribunal hearing, albeit for his claims regarding family violence (CB 190, 204).
Accordingly, I find that Ground 1A does not give rise to jurisdictional error.
Ground 1B
Ground 1B of the Applicant’s amended grounds for judicial review is as follows:
[1B]. The Tribunal erred in finding that the marriage was not entered into for genuine purposes because it assumed that evidence of financial gain by one of the parties was, by reason of that fact alone, evidence that there was not a genuine and continuing spousal relationship.
Particulars
i. The Tribunal found that ‘on the evidence [the Sponsor] demanded money, for her own purposes, from [the Applicant] both prior to and after their marriage...’
ii. This was a critical matter that formed the basis for the Tribunal’s finding that it was ‘not satisfied that at the time of the application [the Sponsor] entered into her marital relationship with [the Applicant] for genuine purposes’.
iii. The Tribunal erred by assuming that evidence of financial gain by one of the parties entering into a marriage is, by reason of that fact alone, evidence that there was not a genuine and continuing spousal relationship, in circumstances where there was evidence that the provision of financial assistance had been an ongoing factor in the relationship.
(emphasis in original)
The Applicant characterises the Tribunal’s finding that it was not satisfied that the Sponsor entered into her marital relationship with the Applicant for a genuine purpose (CB 233 at [29]) as a finding based on the fact that the Sponsor demanded money from the Applicant for her own purposes upon entering the marriage. The Applicant impugns this finding on the basis that the Tribunal ignored its own findings that the Sponsor demanded money from the Applicant both prior to and after their marriage.
The Applicant submits that the evidence before the Tribunal (CB 130, 168, 204, 211 at [5]) was that the Applicant had provided the Sponsor and her family with financial assistance throughout the relationship which had been ongoing for just over one year prior to the marriage. Accordingly, the Applicant argues that the Sponsor had been in a position of gaining financially from the relationship for some time prior to the marriage.
The Applicant’s submission is that as this finding that the Sponsor did not enter her relationship with the Applicant for a genuine purpose was relied upon by the Tribunal as one of the two bases for its ultimate finding that there was no spousal relationship between the parties at the time of the visa application, the finding was central to the Tribunal’s decision-making and, accordingly, the finding gave rise to jurisdictional error.
The Minister contends that the characterisation by the Applicant of the Tribunal’s finding that there was not a genuine and continuing spousal relationship (CB 233 at [29]) is erroneous for the reason that the finding was not based on one fact alone. The Minister argues that the Tribunal expressly stated that it was not satisfied that, at the time of the visa application, the Sponsor had entered into a marital relationship with the Applicant for genuine purposes. The Minister submits that it was open to the Tribunal to arrive at this view on the basis of the evidence before it.
The Minister notes that in the Applicant’s evidence submitted to the Tribunal in support of the Applicant’s family violence claims, there are text messages sent from the Sponsor to the Applicant between April 2014 to May 2014 demanding that the Applicant pay the Sponsor money (CB 154) and evidence that, as a consequence of the Sponsor’s drug and alcohol dependence, the Sponsor had become demanding in relation to money and had threatened and engaged in actual physical, psychological and verbal abuse when her demands for money were not met by the Applicant (CB 158-159). The Minister submits that this evidence supports the Tribunal’s finding that it could not be satisfied that the Sponsor had entered into the marriage for genuine purposes based on evidence that “…[the Sponsor] had demanded money, for her own purposes, from [the Applicant] both prior to and after their marriage…” (CB 233 at [29]).
Consideration
I do not accept the Applicant’s characterisation of the Tribunal’s finding regarding the genuineness of the Sponsor’s intentions in entering into marriage with the Applicant (CB 233 at [29]). The Tribunal was required under s.5F(2)(c) of the Act to be satisfied, amongst other things, that the relationship between the Applicant and the Sponsor was “genuine and continuing” at the time of the visa application.
The Tribunal was aware that the Applicant had provided financial support for the Sponsor and her family prior to the marriage
(CB 231 at [16]) and that pre and post marriage the Applicant had “…submitted to [the Sponsor’s] demands for money” (CB 231 at [18]).
The Tribunal found that there was “little other evidence” to support the Sponsor’s intentions for entering into a marital relationship with the Applicant, other than the Sponsor’s demands for money “for her own purposes” (CB 233 at [29]). The Tribunal does not say what is meant by that phrase, however, it is clear that the Tribunal is referring to demands made by the Sponsor of the Applicant for money for the Sponsor’s benefit only and not for the benefit of the relationship.
The Minister argues that, in circumstances where the Applicant’s own evidence is that the Sponsor made demands for money in the context of a drug and alcohol dependence, there was evidence to support the Tribunal’s finding that it could not be satisfied that the Sponsor entered the marriage for genuine purposes.
In my opinion, it is impermissible to speculate on the precise evidence the Tribunal had regard to in finding that the Sponsor made financial demands of the Applicant for her own benefit.
What is apparent is that, in circumstances where there was little other evidence to support the Sponsor’s intentions and where the evidence was that the Sponsor demanded money, for her own purposes, from the Applicant both prior to and after their marriage, the Tribunal found that the Sponsor’s intentions in entering the marriage were not genuine.
This finding does not overlook, as the Applicant claims, the evidence that the Applicant financially supported the Sponsor and her family. It simply focuses on demands made by the Sponsor prior to and after the marriage for money for the Sponsor’s own purposes, and the Applicant’s compliance with these demands.
In my opinion, no jurisdictional error arises from this finding.
Accordingly, I find that Ground 1B does not give rise to jurisdictional error.
Ground 2
Ground 2 of the Applicant’s amended grounds for judicial review is as follows:
2. In making its decision the Tribunal exceeded its jurisdiction or committed a jurisdictional error in that the Tribunal’s finding at [27] and [29] that [the Sponsor] was either on the verge of or had separated from the applicant at the time of the visa application was illogical.
Particulars
a. The evidence before the Tribunal was that at the time of making the visa application [the Sponsor] supported the application (CB 21-30; 40).
b. The visa application documents were signed by [the Sponsor] on 24 April 2014 (CB 29) and lodged on 14 May 2014.
c. [the Sponsor] did not withdraw her support for the visa application until 11 June 2014 (CB 63).
(emphasis in original)
The Applicant’s submission in support of this ground is that the evidence before the Tribunal was as follows:
a)the parties had lived together from 22 April 2014 for approximately three weeks;
b)the visa application was lodged on 14 May 2014;
c)the Sponsor supported the Applicant’s visa application and provided the necessary documentation as evidence of that support (CB 21-30, 40);
d)
the visa application documents were signed by the Sponsor on or around 24 April 2014 (CB 29) and lodged on or around
14 May 2014 (CB 21);
e)the Sponsor did not withdraw her support for the visa application until 11 June 2014 (CB 63-64), one month after the visa application was lodged.
The Applicant submits that given this evidence, the Tribunal’s finding that the relationship between the Applicant and the Sponsor had ended at the time of the visa application was illogical and infected by jurisdictional error. The Applicant submits that as this finding was relied upon by the Tribunal as one of the two bases for its ultimate finding that there was no spousal relationship, the finding gave rise to jurisdictional error.
The Minister submits that it is permissible for the Tribunal, when assessing whether a spousal relationship existed at the time of the visa application, to have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of the application (Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 (“Jayasinghe”) at [36]).
The Minister submits that the evidence before the Tribunal was that the relationship between the Sponsor and the Applicant broke down shortly after the visa application was made. The Tribunal had before it letters from the Sponsor dated 11 June 2014 and 16 June 2014
(CB 63-64, 66-67). The Minister points out that this was less than one month after the visa application was lodged, and that the Sponsor attested in her correspondence to the fact that following her marriage to the Applicant, she discovered that “…[the Applicant] was a completely different person…” (CB 63) and that she wished to withdraw her sponsorship of the Applicant. The Minister notes that the Sponsor also indicated in her correspondence that she had arrived in Lebanon on 23 May 2014and that she had since met someone else. At the hearing, Counsel for the Minister submitted that this was all additional evidence before the Tribunal that the parties’ relationship had broken down or was in the process of breaking down at the time of the visa application. Counsel for the Minister further submitted that this evidence logically showed what the state of affairs was between the parties at the time of the visa application and that the Tribunal was entitled to rely upon that information in making its findings.
The Minister submits that the Tribunal’s finding that it was not satisfied that the Sponsor had entered into the marriage for a genuine purpose (CB 233 at [29]) was also based on relevant evidence before the Tribunal and was not an irrational or illogical finding (see MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [2]-[5]).
Consideration
The mere fact that the Sponsor had supported and signed the Applicant’s application for the visa is, in my view, a neutral consideration. Whether or not those actions indicate the existence of a spousal relationship within the meaning of the Act and the Regulations will depend on a multitude of factors.
The Tribunal’s finding, which the Applicant seeks to impugn, was not that the parties’ relationship had ended at the time of the visa application. Rather, the finding was put in the alternative, namely, that the Sponsor was either on the verge of or had separated from the Applicant at the time of the visa application.
I agree with the Minister that the Tribunal’s earlier findings that the Sponsor had not entered into the marriage for genuine purposes were based on relevant considerations.
I also accept that the decision of Middleton J in Jayasinghe is binding on this Court. In this decision, his Honour observed that under the relevant provisions of the Act and the Regulations it was “…necessary for the Tribunal to assess whether or not, at the time of the visa application, the evidence supported a conclusion that the circumstances of the [Applicant’s] relationship satisfied the requirements of reg.1.15A [of the Regulations]” (Jayasinghe at [34]). His Honour went on to state the following (Jayasinghe at [35], [36]):
35 This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
36 As to the question of evidence of subsequent events, I have considered the case of Bretag v Immigration Review Tribunal (unreported, O’Loughlin J, 29 November 1991) (‘Bretag’). In that case, the Tribunal had to answer the question of whether two persons in a relationship had a mutual commitment to the exclusion of others. The Tribunal had to determine the question at a particular point in time but made reference to evidence about subsequent events in assessing whether at the relevant time the relationship was exclusive. In reviewing the decision of the Tribunal, the court found that the Tribunal’s undue reliance on the evidence of subsequent events disclosed error. The court did not hold that, in all circumstances, evidence of subsequent events was a relevant consideration which the legislation required the Tribunal to consider. Rather, the court held that in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. As stated by O’Loughlin:
It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE – 7 February 1990. But the evidence of the subsequent history is only relevant so long as it tends to logically show the existence or non-existence of facts relevant to the issue to be determined.
In my view, the following evidence before the Tribunal was relevant evidence before the Tribunal in determining whether the Applicant and the Sponsor were in a spousal relationship at the time of the visa application. The visa application was made on 14 May 2014. Less than one month later, on 11 June 2014, the Sponsor advised the Department that she wished to withdraw her sponsorship as the parties’ relationship had ceased. It is relevant that in the Sponsor’s correspondence advising the Department that her relationship with the Applicant had ceased, the Sponsor stated that following her marriage to the Applicant, she discovered that “…he was a completely different person…”, that she had arrived in Lebanon on 23 May 2014 (nine days after the visa application was lodged) and that since then she has met another person who she “…truely [sic] care[s] for and enjoy[s] [her] company with…” (CB 64).
Given the Tribunal’s findings about the genuineness of the Sponsor’s intentions in entering her marriage with the Applicant and the evidence that after a very short period of time the Sponsor withdrew her sponsorship; that the Sponsor discovered that “…[the Applicant] was a completely different person…”; that the Sponsor had arrived in Lebanon; and that the Sponsor had met someone else, the Tribunal’s finding that the Sponsor was either on the verge of or had separated from the Applicant at the time of the visa application was not illogical.
Accordingly, I find that Ground 2 does not give rise to jurisdictional error.
Conclusion
For the reasons set out in this judgment, I shall dismiss the Applicant’s amended application for judicial review filed on 1 July 2016. I shall also make an order that the Applicant pay the costs of the First Respondent’s in a fixed amount.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 18 April 2018
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