ALSALEM v Minister for Immigration

[2013] FCCA 1407

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALSALEM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1407

Catchwords:
MIGRATION – Partner visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider whether the applicant had suffered family violence.

Legislation:

Migration Act 1958, ss.5F, 474

Migration Regulations 1994, reg.1.15A, cls.820.211, 820.221 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: MOHAMMAD ALSALEM

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2870 of 2012

Judgment of: Judge Cameron

Hearing date: 17 September 2013

Date of Last Submission: 17 September 2013

Delivered at: Sydney

Delivered on: 24 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2870 of 2012

MOHAMMAD ALSALEM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Jordan, applied for a Partner (Temporary) (Class UK) subclass 820 visa on 2 October 2009. On 17 December 2010 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.820.211 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of a subclass 820 visa are set out in pt.820 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time he made his application was cl.820.211 which relevantly provided:

   (2)    An applicant meets the requirements of this subclause if:

   (a)the applicant is the spouse or de facto partner of a person who:

   (i)         is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen …

2. “Spouse” has the meaning given to it by s.5F of the Act which provides:

   5F     Spouse

   (1)For the purposes of this Act, a person is the spouse of another person 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 husband and wife 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.

3. Regulation 1.15A of the Regulations sets out the matters which the Minister must consider in determining whether the conditions for a spousal relationship set out in s.5F of the Act exist. Regulation 1.15A relevantly provides:

   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:

   …

   (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.

Background facts

Department

1. The applicant arrived in Australia on 8 November 2007 on a student visa.  On 26 August 2009 he married an Australian citizen and, as noted earlier, on 2 October 2009 he applied for a Partner (Temporary) (Class UK) subclass 820 visa.  In his visa application form the applicant stated that he had met his partner, who was his sponsor for the visa, on 10 June 2009 and they had begun a relationship one month and fifteen days later.  The applicant stated that he and his partner were living together as husband and wife.  In her sponsorship form, the applicant’s sponsor stated that she had met the applicant on 10 June 2009 and they had decided to commit to a long term relationship on 25 July 2009.

2. The applicant provided the following documents with his application:

   a)his marriage certificate;

   b)a certified copy of an “Account Opening Confirmation Report” dated 23 September 2009 from the St George Bank for an account held jointly by the applicant and his sponsor; and

   c)photographs of the applicant and his sponsor at the same social event with a group of friends.

3. On 29 October 2009 the Minister’s department received a letter from the applicant’s sponsor claiming that she and the applicant were no longer in a relationship and that she wished to be removed as his sponsor.  In response to an invitation from the department to comment on that information, the applicant’s representative wrote to the department on 16 November 2009 claiming that the applicant was a victim of domestic violence.  The following documents were attached to the representative’s letter:

   a)an interim apprehended violence order (“AVO”) listing the applicant as the protected person and his sponsor as the defendant; and

   b)a discharge referral report dated 12 October 2009 from the Royal Prince Alfred Hospital which recorded that the applicant had sought treatment for an alleged assault by his wife.

4. Under cover of a letter dated 6 March 2010, the applicant’s representative provided a final AVO dated 23 February 2010 valid for twelve months.  He also provided a statutory declaration declared by the applicant on 26 February 2010 in which he claimed that his sponsor had attacked, harassed and assaulted him at work.  The applicant claimed that he had been damaged physically and emotionally and was seeing a psychologist and a social worker.

5. On 17 December 2010 the delegate refused the applicant’s application on the basis that he did not satisfy the requirements of cl.820.211 of sch.2 to the Regulations because he had not demonstrated that he was the spouse or de facto partner of his sponsor at the time he lodged his application.

Tribunal

1. The applicant attended a Tribunal hearing on 12 November 2012. Prior to the hearing the applicant provided the Tribunal with a statement dated 8 November 2012 from a Ms Sina Schipilliti.  Ms Schipilliti stated that she had known about the applicant and his sponsor’s relationship since September 2009 and had witnessed it from the courting stage through to marriage.  She stated that she worked next door to the applicant’s workplace and had seen the applicant’s sponsor visit him at work many times.  Ms Schipilliti stated that the applicant’s sponsor had shown her pictures of the applicant and her (the sponsor’s) daughter and that they “got on together as a family”.

2. The applicant made the following claims at the Tribunal hearing:

   a)he had visited dating websites because he had been looking to meet a woman.  He had not expected that any partner he met would return with him to Jordan and had not planned to return to Jordan.  He had meant to stay in Australia;

   b)he met his sponsor on 25 May 2009 through a dating website.  When it was put to him that his application form stated that he met her on 10 June 2009, the applicant claimed that the date in May had been a “random choice”;

   c)he first met his sponsor face-to-face three weeks after he met her on the dating website.  They shared interests in shopping, clothes and clubbing;

   d)his sponsor told him that her two children lived with their father.  He had only met her daughter twice and had never met her son;

   e)it was his sponsor’s idea that they marry so that they could live together and save on rent.  He started living with her after the wedding.  They did not have any joint utility accounts because they lived in a share house with two other people and the utility accounts were in the landlord’s name;

   f)there was no evidence of him and his sponsor having joint finances because they usually used cash.  They did not use their joint account because they had little money and kept it all in cash;

   g)about ten days after their marriage his sponsor told him that she had slept with her former boyfriend.  Soon after their wedding she started asking him for money and going out on her own regularly, sometimes for several days at a time;

   h)a month after their wedding his sponsor came to the convenience store where he worked and asked him to give her money from the till.  When he refused she took the money and they had an altercation which resulted in him being injured when the till fell on his foot.  He attended the emergency department of the Royal Prince Alfred Hospital.  He had to pay for some damage to the shop.  On that day his sponsor again told him that she was sleeping with her former boyfriend and that she had only married him to have revenge on her former boyfriend and had no intention of staying with the applicant;

   i)his sponsor moved out of their share house around 25 September 2009.  After their separation, she asked him for money to continue sponsoring his visa application but he refused to give her any; and

   j)he was advised by a migration agent to take out a domestic violence order against his sponsor, which he did.  He had since divorced his sponsor and had an Islamic marriage with another woman with whom he was living.  Their marriage was not recognised under Australian law.

3. At the Tribunal hearing the applicant’s cousin gave evidence that he had seen the applicant and his sponsor at the house where they lived and thought they were together for about four or five months.  He said that they had sometimes gone to clubs together.

The Tribunal’s decision and reasons

1. For the following reasons, the Tribunal found that at the time the applicant made his application he was not his sponsor’s spouse within the meaning of s.5F of the Act and, therefore, did not meet the requirements of cl.820.211:

   a)the Tribunal found that there was evidence that the applicant and his sponsor had not had a commitment to a shared life as husband and wife.  In this regard, it noted that the applicant’s sponsor had resumed her relationship with her previous boyfriend very soon after marrying the applicant.  It further noted the applicant’s evidence that his sponsor had told him that she had had no intention of being in a mutually committed relationship to the exclusion of all others and had married him to have revenge on her former boyfriend.  The Tribunal found that this meant that at the time of the applicant’s application his sponsor had had little or no commitment to their marriage;

   b)the Tribunal found that there was no evidence of joint financial commitments between the applicant and his sponsor other than a joint account opened on 23 September 2009 which had no transactions.  It also noted that that there was no evidence of joint utility accounts;

   c)the Tribunal found that there was little evidence of any social activities the applicant and his sponsor had shared with other people.  It noted that the evidence provided by the applicant’s cousin was very limited and did not indicate that other people had seen the applicant and his sponsor as being in a committed relationship.  The Tribunal also gave no weight to Ms Schipilliti’s evidence about the genuineness of the applicant’s relationship with his sponsor because it conflicted with the applicant’s evidence.  The Tribunal noted that Ms Schipilliti’s evidence that the applicant and his sponsor’s daughter had “got on together as a family” was inconsistent with the applicant’s evidence that he had only seen his sponsor’s daughter twice and had not met her son.  The Tribunal therefore placed no weight on Ms Schipilliti’s statement; and

   d)the Tribunal found that there was little commitment between the applicant and his sponsor and that their relationship seemed to have broken down within a very short time and before the applicant’s visa application.  The Tribunal concluded that there was no mutual commitment between the applicant and his sponsor to the exclusion of all others.  It found that the relationship was not genuine and continuing, noting that there was evidence that the sponsor had only entered into the marriage to have revenge on her former boyfriend and had had no intention of continuing in the relationship.

Proceedings in this Court

1. In his (further) amended application the applicant alleged:

   1.My relationship with my ex-wife was genuine, the MRT failed to accept the family violence.

   2.The MRT failed to consider the issue of domestic violence, failed to refer my case to independent expert.

   3.The MRT acted contrary to domestic violence provisions.

2. A large part of the application and the applicant’s submissions at the hearing of this matter turned on the absence from the Tribunal’s reasons of any reference to the applicant’s allegation that he had been a victim of domestic violence at the hands of his former wife, the sponsor. However, in the circumstances, the Tribunal was not required to consider that issue. The issue of domestic violence, or family violence as it is termed in the Regulations, will only arise for consideration if the Tribunal considers that the parties to a spousal relationship were in a genuine relationship at the time one of them made an application for a spouse visa. This is apparent from the terms of cl.820.221(3) of sch.2 to the Regulations which relevantly provides:

   (3)    An applicant meets the requirements of this subclause if:

   (a)the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b)either or both of the following circumstances applies:

   (i)     either or both of the following:

   (A)the applicant;

   (B)a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;

   …

   It will be noted that that provision refers to cl.820.211 which is a criterion that must be satisfied at the time a visa application is lodged, and which is relevantly quoted above at [4].

3. The Tribunal concluded that the applicant and his then-wife had had no mutual commitment to each other to the exclusion of all others and, implicitly, that this had been so from the outset of the marriage. The Tribunal made that conclusion more explicit by finding that the applicant did not meet the requirements of cl.820.211(2)(a). As the Tribunal found that the applicant was not, at the time of the application, the spouse of an Australian citizen in a manner recognised by the Act, there was no need for it to consider whether cl.820.221(3) applied to his circumstances.

4. The remaining question therefore is whether the Tribunal erred in concluding that the applicant’s marriage did not satisfy the requirements of the Regulations.

5. The applicant’s allegation “my relationship with my ex-wife was genuine” reflects the concern stressed in his address to the Court that he had been serious about the marriage and that, had it been up to him, it would have continued. However, that is not the test. Under the Act, to be spouses, the two persons in question must have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal found, as was open on the evidence, that the applicant’s former wife lacked such a commitment and that the relationship was neither genuine nor continuing, noting that, even on the applicant’s version of events, the relationship had broken down before the visa application was lodged. Regardless of the applicant’s attitude to the marriage, if his then wife had not been committed to it, the mutual commitment required by the Act was not present.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 September 2013