ARHBAL v Minister for Immigration

[2016] FCCA 1963

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARHBAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1963

Catchwords:
MIGRATION – Visa – partner visa – ‘spouse’ – whether spousal relationship – whether Tribunal treated r.1.15A matters as “requirements” rather than factors to be considered – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.5F & 65

Migration Regulations 1994 (Cth), reg.1.15A, cl.820.211 & cl.820.221 of Schedule 2

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 41 ALD 1

Applicant: MOHAMMED ARHBAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 262 of 2015

Judgment of: Judge Heffernan

Hearing date: 7 March 2016

Date of Last Submission: 7 March 2016

Delivered at: Adelaide

Delivered on: 15 August 2016

REPRESENTATION

Counsel for the Applicant: Ms J McGrath

Solicitors for the Applicant: McDonald Steed McGrath Lawyers

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Amended Application dated 7 March 2016 is dismissed.

2. The applicant do pay the first respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 262 of 2015

MOHAMMED ARHBAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’), as it then was, dated 25 June 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant was represented before the Tribunal by a registered migration agent and before me by Ms J McGrath.  At the final hearing of this matter, the applicant sought to further amend his application by adding ground 6 as an additional ground.  The applicant sought to rely on this ground as the sole ground of application, in effect abandoning grounds 1 – 5 of the previously Amended Application.  Counsel for the first respondent did not oppose the amendment and properly conceded that the first respondent suffered no prejudice as a result of the amendments.  I granted leave to the applicant to amend the grounds of application.  Ground 6 is as follows:

   “The Second Respondent committed jurisdictional error in that it asked itself the wrong question in treating the matters at Migration Regulation 1.15A(3) as “other requirements” to be met for a spousal relationship to exist, rather than treating the regulation as making provision in relation to the determination of whether one or more of the conditions in the definition of spouse as defined in Section 5 of the Act exist.”

Background

1. The applicant was born in Morocco in November 1984.  He is a citizen of Morocco.  His sponsor is a former citizen of Morocco born in 1971.  She is now an Australian citizen.  The applicant and the sponsor met in Adelaide in May 2008.  They married in Adelaide in May 2011.  The applicant applied for the visa on 8 June 2011.  He did so on the basis of his relationship with the sponsor, his wife.  The sponsor has experienced illness with cancer.  Since the date of the marriage, the sponsor has been out of Australia between 11 April 2013 and 27 February 2014.  She again left Australia in December 2014 and had not returned to this country as at the date of the Tribunal hearing on 25 June 2015.[1]

   [1]     Court Book (‘CB’) p 511 at [42]-[43].

2. The applicant claims to have lived with the sponsor at one address between 30 May 2011 and 10 August 2013, and at another address between 21 November 2013 and 2 February 2014.[2]

   [2] CB p 511 at [44].

3. There was, at the relevant time, only one subclass for a class UK visa, subclass 820.  In order to be granted a subclass 820 visa, the applicant was required to satisfy inter alia cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). In other words, it was necessary for the applicant to satisfy the requirement that he was the spouse or de facto partner of a person who was either an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, and that his spouse was not otherwise prevented from being a sponsor and partner by virtue of subcl.820.211(2B). ‘Spouse’ is defined by s.5F of the Act as follows:

   “(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.”

4. Regulation 1.15A of the Regulations sets out a series of matters that must be considered when determining whether one or more of the conditions in s.5F(2) existed.  Regulation 1.15A provided as follows:

   “(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 longterm 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 hearing and findings

1. The issue before the Tribunal was whether the applicant was in a genuine spousal relationship with the sponsor.  The Tribunal found that the parties were validly married.

2. The Tribunal accepted the opinion expressed by the Psychologist, Ms Scott, that at the time of the application, the sponsor had ongoing mental health problems which caused her to be dependent on the applicant.  For that reason, it found that the criteria in Schedule 3 should not be applied.

3. The Tribunal considered the factors set out in reg.1.15A. It considered the financial aspects of the relationship and found that on the totality of the evidence, the applicant had not satisfied it that those aspects had the hallmarks of a genuine and continuing spousal relationship.[3]

   [3] CB p 511 at [40].

4. In considering the nature of the household, the Tribunal took into account the movements of the sponsor out of Australia, and the fact that she remained outside of this country at the date of this Tribunal hearing.  It considered the submissions with respect to cohabitation, household chores, and the implications of some annotated photographs submitted on behalf of the applicant. 

5. With respect to the social aspects of the relationship, the Tribunal considered a number of statutory declarations provided by Australian residents, as well as claims made by both the sponsor and the applicant.[4]

   [4]     CB pp 512-513 at [51]-[64].

6. The Tribunal was not satisfied that the parties had, “presented themselves to others as a committed married couple or that they had undertaken joint social activities during their periods together in Australia”.[5]

   [5] CB p 513 at [64].

7. Finally, the Tribunal considered the nature of the commitment to each other demonstrated by the applicant and the sponsor.  It took into account the claim of the parties that they married for love and had commenced cohabitation when they married.  It noted that the sponsor could not recall where the parties had married.  The Tribunal placed weight on the lack of evidence of contact between the parties during the sponsor’s lengthy and ongoing periods of time overseas.  Given the ill health of the sponsor, which the Tribunal accepted, it found her absence from Australia between October 2013, when she fell ill in Morocco, and February 2014, when she returned to Australia, to be plausible.[6]

   [6] CB p 514 at [75].

8. The Tribunal was not satisfied that the parties had made any serious plans for their long term future as a married couple.[7]

   [7] CB p 514 at [76].

9. On the totality of the evidence, the Tribunal was not satisfied that the applicant had demonstrated a relationship commensurate with persons in a genuine and continuing spousal relationship.[8] It was further not satisfied that the parties did not live separately and apart on a permanent basis. For those reasons, the Tribunal was not satisfied that at the time of the application, the parties were in a spousal relationship as defined, and for this reason, the applicant could not satisfy the criteria of cls.820.211(2)(a) and 820.221 of the Regulations.

   [8] CB p 514 at [77].

Submissions

1. The applicant’s contention is that the Tribunal considered the factors set out in reg.1.15A as a determinative set of criteria that had to be satisfied if the applicant was to establish that he was a “spouse” as defined. Ms McGrath submits that this error is demonstrated in the approach taken by the Tribunal to reg.1.15A factors, but that the thinking of the Tribunal in that regard is demonstrated in a heading used by the Tribunal when proceeding to set out the reg.1.15A factors. Having dealt with the legality of the marriage and the waiver of the Schedule 3 criteria, the Tribunal then proceeded to consider the reg.1.15A factors under the following heading:

   “Are the other requirements for a spousal relationship met?”[9]

   [9]     CB p 510.

2. Ms McGrath’s submission is that whilst they must be considered, the reg.1.15A factors are not “requirements” that have to be met, but simply factors to be taken into account when forming an opinion as to whether the applicant was a ‘spouse’ as defined.  In other words, they are a mandatory aid to determining the ultimate question, not a series of questions on which positive findings had to be made.  In this way, Ms McGrath submits, the Tribunal asked itself the wrong question, or identified the wrong issue in the manner described in Craig v South Australia[10] and that accordingly, it had fallen into jurisdictional error.

   [10]    Craig v South Australia (1995) 184 CLR 163.

3. Ms McGrath conceded that the Tribunal did correctly set out the correct test at an earlier stage in its reasons when it said:

   “‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.”[11]

   [11] CB p 509 at [18].

4. The first respondent submits that the Tribunal cogently and correctly summarised the test to be applied and that the reasons do not disclose that it treated the reg.1.15A(3) matters as the requirements that each had to be met for the grant of the visa. Mr Tredrea submitted that the findings at paragraphs 77 and 78 of the Tribunal’s reasons were clearly open to it:

   “77.For the reasons given above, the totality of the evidence fails to satisfy the Tribunal that the parties have established an ongoing spouse relationship since their marriage four years ago.  The Tribunal accepts that these parties have a form of relationship but for the reasons given above, the evidence provided does not satisfy the Tribunal that their relationship is commensurate with that of parties in a genuine and continuing spouse relationship.

   78.The Tribunal is not satisfied on the evidence that the parties do not live separately and apart on a permanent basis.”

5. The first respondent submits that a fair reading of the Tribunal’s reasons shows that all of the applicant’s claims were considered and addressed.  For these reasons, it was submitted that the Tribunal had not fallen into jurisdictional error.

Consideration

1. The main difficulty faced by the applicant in this matter is the fact that, as his counsel conceded, the Tribunal did correctly state the test that had to be applied in determining the question before it.  The use of the heading, “Are the other requirements for a spousal relationship met?”, was a mis-description of the purpose of the task it was bound to undertake when considering the factors in reg.1.15A(3). It does not follow, particularly where the test had earlier been correctly enunciated, that this mis-description was indicative of an error of the type identified in Craig’s case. The manner in which the Tribunal summarised and considered the reg.1.15A factors was itself unremarkable. Had the impugned heading not been used, and for example, the heading, “Regulation 1.15A factors” used instead, there could be no cause for any criticism of the approach taken by the Tribunal.

2. In my view, to accept the argument advanced by the applicant would be to read the decision of the Tribunal minutely, “with an eye keenly attuned to the perception of error”, in the manner described in Wu Shan Liang.[12]

   [12]    Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 41 ALD 1 at [9].

3. The ultimate findings made by the Tribunal were referrable to the requirements of s.5F[13] and it was on the basis of those findings that the Tribunal affirmed the decision of the delegate.[14]

   [13]    CB p 514 at [77] and [78].

   [14] CB p 514 at [79].

4. I am not satisfied that the applicant has demonstrated jurisdictional error. 

5. I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 15 August 2016