Almomani v Minister for Immigration
[2018] FCCA 3311
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALMOMANI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3311 |
| Catchwords: MIGRATION – Partner (Temporary) (Class UK) visa – whether differing reasons for not registering a relationship constitutes information under ss 359A and 359AA of the Migration Act 1958 – not information – not denial, rejection or undermining of Applicant’s claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA Migration Regulations 1994 (Cth), cl 820.211(2)(a) |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | ABBAS AHMAD FLAYEH ALMOMANI |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | ADMINISTRATIVE APPEAL TRIBUNAL |
| File Number: | MLG 1934 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 July 2018 |
| Date of Last Submission: | 12 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr. A. Aleksov |
| Solicitors for the Applicant: | Harris Wake |
| Counsel for the Respondents: | Ms. N. Campbell |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed 9 September 2016 and amended 25 June 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1934 of 2016
| ABBAS AHMAD FLAYEH ALMOMANI |
Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
| ADMINISTRATIVE APPEAL TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The matter concerns an application for judicial review via an amended application filed 25 June 2018 (originally filed 9 September 2016). The Applicant seeks review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) which affirmed a decision of a delegate of the First Respondent to deny the Applicant a Partner (Temporary)(Class UK) visa (‘Visa’).
Background
The Applicant is a citizen of Jordan, aged 47 years old.
On 26 June 2013, the Applicant applied for the Visa on the basis of his de facto relationship with an Australian citizen (‘the Sponsor’).
On 27 November 2014 a delegate of the First Respondent refused a grant of the Visa as they found that the Applicant has not satisfied the criteria in cl 820.211(2)(a) of the Migration Regulations 1994 (Cth) (‘Regulations’). The delegate deemed that there was insufficient evidence that the parties met the requirements under the Regulations for being deemed to be in a de facto relationship for the 12 months preceding the Visa application.
The Applicant sought review of the decision before the Tribunal. On
18 August 2016, the Tribunal affirmed the decision of the delegate.
Decision of the Tribunal
The Tribunal found that:
a)the Applicant and Sponsor’s relationship had ended;[1]
b)in order to determine whether the Applicant and Sponsor were in a genuine relationship at the time of the Visa application it was necessary to consider the criteria under reg 109A(3) of the Regulations;
c)in relation to when the Applicant and Sponsor started living together and when they first met, the Applicant and Sponsor gave inconsistent information;
d)the Applicant and Sponsor did not have any significant financial assets owned jointly and gave this aspect little weight; and
e)overall determined that it did not find the Applicant’s evidence credible.
[1] Court Book 348 [40].
The Tribunal found that the Applicant and Sponsor were not in a genuine de facto relationship at the time the Applicant lodged his Visa application and affirmed the decision of the delegate.
Grounds of review
The grounds of the Applicant’s amended application filed 25 June 2018 are as follows:
1.The Second Respondent erred by failing to comply with the requirements of ss.359A and 359AA of the Migration Act 1958 (Cth).
Particulars:
a.Part of the reason for affirming the decision under review was the “information” contained in oral evidence by telephone given by the Applicant’s partner Ms. Faten Rufae, which was used extensively to form an adverse view of the Applicant’s interests.
b.The Tribunal would have needed to tell the Applicant why the information may be relevant (s.359AA(1)(b)(i)) and inform him of his right to seek an adjournment (s.359A(1)(b)(iii)). Neither of these things occurred.
Relevant legislation
Section 359A of the Act is as follows:
(1)Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 359AA of the Act is as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Sections 359A and 359AA are in identical terms to ss 424A and 424AA respectively under the Act. Principles regarding the operation of
ss 424A and 424AA are also applicable to ss 359A and 359AA.
Consideration
An affidavit affirmed on 25 June 2018 by the Applicant’s solicitor, Owen David Harris, exhibited a transcript of the Tribunal hearing held on 16 August 2016.
The transcript indicates that the Applicant gave evidence in relation to registering the relationship with the Department of Births, Deaths and Marriages. He stated that he had tried many times:
so that we register this marriage with the Department… of this Department so that our relationship becomes official…And not registering this relationship contradicts out culture in Jordan so I was insisting that this relationship should be registered. But Fatin was so reluctant and she was scared for some reason…And Fatin was so scared of her ex-husband because it was still…the issue was still in the court, in the Family Court between her and her ex-husband and he…there’s an [inaudible] against him in the court and she was so scared from him.[2]
[2] Affidavit of Owen David Harris, Exhibit ODH1, 29.
The Tribunal member raised with the Applicant that the relationship had been declared to other government agencies. The Applicant responded:
Okay, I discussed this issue with Fatin (sic) but Fatin was so scared and she said if I…if we registered this relationship as a de facto with the ACT, it’s going to be official, you know this is against our culture and because de factor relationship is not recognised as ethical, socially accepted in Jordan, so this is why I want to keep it.[3]
[3] Ibid 30, 18 – 22.
When the Tribunal member asked The Applicant’s Sponsor why the relationship has not been registered with the Department of Births, Deaths and Marriages the following exchange took place:
Member: And the other is if you registered the relationship with the Department of Births, Deaths and Marriages.
Ms Rufae: Uh hmm.
Member: So why did that not happen?
Ms Rufae: I don’t know. You ask him this question, not me.
Member: You don’t know why you didn’t register the relationship?
Ms Rufae: No, I don’t know.[4]
[4] Ibid 106.
The Tribunal considered this evidence at [31] – [32] of its decision, noting:
[31]Faten Rufae told the tribunal that, at the time of lodgement of Mr Almomani’s Partner visa application, they were both in their “mid 40’s and I wanted us to stay together”. She has continued “now it doesn’t bother me because I’m finished. He’s left and he has his life alone. I couldn’t stay”. Ms Rufae said when his visa application was refused, it was the first time that I said I can’t continue with him”. She confirmed for the Tribunal the parties are no longer together, their “relationship is finished and I’m sick of all this. I don’t know why I’m even involved in this case”.
[…]
[32]When the Tribunal discussed with Ms Rufae the 12 month requirement for a de facto relationship or, in the alternative, registration at the ACT BDM Registry at the time of application then Ms Rufae said “I don’t know. I can’t remember. I’m sick. I take medication. It’s been a long time, 3 years”. She acknowledged she had registered the relationship with Centrelink and the ACT Housing Commission but had “no idea” why it was not registered with the ACT’s BDM Registry. Ms Rufae said she “can’t remember” when Mr Almomani moved into her home at Bonython.
The Tribunal put some of the inconsistencies arising from Ms Rufae’s evidence and the Applicant’s written claims to the Applicant at the hearing.[5] When the inconsistency that arose between the Applicant and Sponsor’s account of why the relationship was not registered was raised with the Applicant, the Tribunal noted that he replied: “I will answer in a different way. The problem is not with the patient but the treatment given to the patient. She knew she could register the relationship. It was my idea. It was her decision to refuse registration”[6] and “had this relationship been registered, I wouldn’t have these problems. She is ill”.[7] The Tribunal recorded that it accepted Ms Rufae had medical issues, but the answers failed to eliminate doubts the Tribunal had about why Mr Almomani did not prevail upon Ms Rufae to register the relationship. The Tribunal was also concerned that Ms Rufae did not, at that time, consider that there was yet a basis for registering the relationship.[8]
[5] Court Book 347 [38].
[6] Ibid 351 [61].
[7] Ibid.
[8] Ibid.
In its overall assessment, the Tribunal found at [72] that:
After weighing all of the evidence the Tribunal is not satisfied that the parties were in a genuine and continuing to de facto relationship on 26 June 2013 when Mr Almomani lodged his visa application. The Tribunal finds the parties made the decision to commit to a de facto relationship sometime in mid-2014.
The Applicant submits that at least part of the reason why the Tribunal affirmed the decision under review was the ‘information’ contained in the evidence given by Ms Rufae. The Applicant submits that if there was to be reliance on s 359AA as a means of fulfilling the jurisdictional obligation under s 359A, the Tribunal needed to tell the applicant why the information may be relevant[9] and inform him of his right to seek an adjournment.[10]
[9] Migration Act 1958 (Cth) s 359AA(1)(b)(i).
[10] Ibid s 359(1)(b)(ii).
In the course of oral submission, counsel for the Applicant stated that there were two pieces of information; the evidence given by the Applicant that the relationship was not registered because the Sponsor was scared of her ex-husband and the Sponsor’s evidence that she had no idea why they had not registered the relationship.[11]
[11] Affidavit of Owen David Harris, Exhibit ODH1, 9 [20].
It was then submitted that the Tribunal raised the inconsistency with the Applicant, but in a way that did not comply with s 359AA. It is said that part of the reason that the Tribunal expressed a view at [72] of its decision was because of the information, that information being that Ms Rufae had no idea why the relationship was not registered.
The Applicant accepted that particulars of the inconsistency between the evidence of the Applicant and the Sponsor has been given to the Applicant, however, it was put that had been no explanation as to how the ‘information’ might be relevant.
The First Respondent submits that:
a)the material referred to (being the inconsistent reasons for not registering the relationship) is not information for the purposes of ss 359A and 359AA;
b)for information to be considered the reason, or part of the reason for affirming the decision under review, it must contain a rejection, denial or undermining of the Applicant’s claims to be entitled to a visa;[12]
c)information does not include the existence of doubts, inconsistencies or an absence of evidence;[13] and
d)the material relied upon only harmed the Applicant’s claims because of the inconsistency.[14]
[12] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 [13].
[13] Ibid [10].
[14] SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053 [27] – [30].
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (‘SZBYR’), the majority stated at [18]:
…if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information":
"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.[15]
[15] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 [18].
In SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053 (‘SZSOG’) Rares J considered the question of the way something might be characterised as ‘information’ for the purposes of either s 424A or s 424AA and surveyed the decisions of the High Court including SZBYR. In that matter, the applicant applied for a protection visa, with her husband and children as dependents on her application. The applicant and her husband claimed to have been threatened over the telephone. Each gave slightly differing evidence on the timing and possible sources of the threatening calls. It was submitted that, pursuant to s 424AA, the Tribunal should have given particulars of the evidence given by the husband that contradicted the applicant’s evidence. Rares J did not consider that the inconsistencies in the evidence between the husband and wife was ‘information’ for the purposes of s 424A or s 424AA. Rares J stated:
In my opinion, that argument is fallacious. The Tribunal did not accept the husband’s evidence. It did so because it considered that his wife’s evidence was inconsistent with his. However, it did not arrive at that finding because the wife’s evidence, in its terms, had rejected, denied or undermined his claim. Rather, the Tribunal simply found that the wife’s evidence did not corroborate her husband’s evidence as part of its evaluative reasoning process.
[…]
Both spouses had said that something similar, but not exactly congruent, had occurred. Both accounts were different. Both were not wholly consistent. However, neither account contained, relevantly, a rejection, denial or undermining of the other spouse’s account.[16]
[16] SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053 [27]. – [28].
At [29], Rares J stated in relation to the approach taken to the by the Tribunal to the accounts given by the applicants:
It was open to the Tribunal to accept or not accept both accounts. It chose to evaluate the evidence of each spouse on the issue based on the fact that their accounts were not consistent. When it came to evaluate whether it would accept the evidence of each spouse, it considered whether there were inconsistencies or gaps between their various accounts for the purpose of deciding whether, and to what extent, it could accept the respective account. The lack of consistency between the accounts did not entail that, on the present facts, either account contained a rejection, denial or undermining of the other. The Tribunal could have found that the accounts either were sufficiently consistent or corroborative or, as it did, lacked consistency or corroboration of each other. But, that conclusion was an evaluation by the Tribunal of the effect of the evidence of two witnesses that, in itself, was neutral as to the veracity or reliability of the other spouse’s evidence. Neither spouse had said that the subject matter of the evidence of the other had not occurred so as to deny or reject or undermine the other’s account.[17]
[17] Ibid [29].
Judge Driver, in SZVSP and Minister for Immigration & Anor [2016] FCCA 1339, referred to and followed the approach taken by Rares J in SZSOG. In particular, His Honour stated:
A useful test for distinguishing the claims material from mere credibility material is to ask whether, if the information were believed and looked at in isolation (i.e. apart from any inconsistencies or comparisons with other material), would it harm the applicant’s case? If the answer is no, it is not “s 424A information”. Indeed credibility material to which s 424A does not apply is often, as was the case in SZBYR itself, material that, if believed and looked at in isolation, would have helped rather than hurt the applicant’s case.[18]
[18] SZVSP and Minister for Immigration & Anor [2016] FCCA 1339 [37]
In the present case, the nature of the evidence given by the Sponsor was not such as to constitute a denial, rejection or undermining of the applicant's account. The Tribunal's statement at [61] indicates that it found that the accounts lacked consistency or corroboration.[19] The Sponsor’s statement that she could not remember why the relation was not registered did not amount to a rejection of the Applicant’s claims or more specifically the reasons given by the Applicant why the relationship was not registered.
[19] Court Book 351.
For these reasons, the Court is of the view that the evidence of the Sponsor was not information for the purposes of section 359A and section 359AA.
The application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 16 November 2018
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