Awwad v Minister for Immigration

[2019] FCCA 308

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWWAD v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 308

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal ignored relevant evidence – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal erred in not considering the applicant’s claim to be a victim of family violence – no jurisdictional error found – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5F, 474
Migration Regulations 1994 (Cth), reg.1.15A, sch.2, cls.820.221, 820.211

Cases cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Kaur v Minister for Immigration and Border Protection [2014] FCA 1251

Applicant: OMAR AWWAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3742 of 2016

Judgment of: Judge Emmett

Hearing date: 12 February 2018

Date of Last Submission: 5 February 2019

Delivered at: Sydney

Delivered on: 12 February 2019

REPRESENTATION

Solicitors for the Applicant: Mr Leonard Jacob
(Sydney Immigration Law)

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: (HWL Ebsworth Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3742 of 2016

OMAR AWWAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 19 December 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 15 December 2015 refusing the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (“Partner Visa”).

2. The background and Tribunal’s decision are accurately summarised in the written submissions of counsel for the first respondent as follows:

   “BACKGROUND

   On 27 October 2014, the applicant met Ms Jamille Jemma Nassouh (the sponsor), an Australian citizen. The parties were married in Yagoona, New South Wales on 21 November 2014: CB 73. The applicant had come to Australia in June 2014 as the holder of a Prospective Marriage (Temporary) (Subclass 300) visa granted on the basis of his intention to marry his partner, prior to his relationship with the sponsor.

   On 19 February 2015, the applicant applied for the partner visa on the basis of his relationship with the sponsor: CB 1. It was a requirement for the grant of the visa that the applicant at the time of application be the spouse or de facto partner of the sponsoring partner: cl 820.221(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

   On 15 December 2015, a delegate of the Minister refused to grant the applicant a visa on the basis that the applicant failed to meet cl.820.211.

   The applicant applied to the Tribunal for review of the delegate's decision: CB 228.

   TRIBUNAL'S DECISION

   The Tribunal identified that the issue before it was whether the applicant was the spouse of the sponsor as defined in s.5F of the Act: [6]; CB 271.

   The Tribunal found the parties were validly married: [19]. However the Tribunal was ultimately not satisfied that the applicant was the spouse of the sponsor. In reaching that conclusion, the Tribunal made findings relevant to s.5F and the factors prescribed in reg. 1.15A(3)(a)-(d). The Tribunal had regard to the following:

   The financial aspects of the relationship, including that there was no corroborative evidence about how the parties shared financial matters: [30]; CB 275. The Tribunal noted the applicant stated that he paid for rent and expenses and that the sponsor deposited her salary and government payments into her own account, which he had never seen. The Tribunal found that the parties at the time of the visa application had not combined their financial resources. There was no evidence before the Tribunal that the parties had joint ownership of any property, with the Tribunal referring to the parties' tenancy agreement signed after the visa application was lodged: [32]; CB 275.

   The nature of the household: the Tribunal was not satisfied the parties had formed a household as husband and wife: [32]; CB 275. It referred to the applicant's evidence regarding home duties, and to the parties' tenancy agreement. It further referred to the fact that at the time of application the couple had lived with either the sponsor's family or with the sponsor's aunt-in-law: [30]; CB 275.

   The social aspects of the relationship, in respect of which the Tribunal accepted the applicant's evidence that he and the sponsor had attended some social events together: [31]; CB 275. The Tribunal also referred to the witnesses' evidence concerning the couple's relationship, although it discounted that evidence because it did not provide insight about how the parties developed their relationship and how they shared their lives together and supported one another. The Tribunal noted an absence of any evidence from family members about how the parties supported one another: [31]; CB 275.

   The nature of the couple's commitment to each other: the Tribunal noted the parties became fragmented only one month after their marriage and that seven months after their marriage, they separated: [30]; CB 275. The Tribunal referred to the parties' living arrangements. It further referred to the applicant's evidence that at the time of application the parties were beginning to understand each other and were developing a stronger relationship: [33]; CB 276. The Tribunal found that there was little evidence to support that the sponsor was committed to a shared life with the applicant or how the parties offered each other companionship and support: [33]; CB 276. The Tribunal noted an absence of any future plans for the couple's future together. The Tribunal concluded that there was little evidence about how the parties shared their lives together, cared for each other, offered each other emotional support or were committed to each other and their relationship when the visa application was made.”

The proceeding before this Court

1. The applicant was represented this morning by Mr Leonard Jacob, solicitor.

2. Mr Jacob filed a Notice of Address for Service on 3 August 2017.

3. On 20 April 2017, the applicant attended a directions hearing before a Registrar of this Court. The applicant was given leave to file and serve an amended application, any further evidence including any transcript of the tribunal hearing, and submissions in support.

4. No document has been filed either in accordance with those directions or otherwise.

5. At the outset of the hearing, Mr Jacob sought an adjournment of the hearing as he had not seen any transcript of the hearing and the only copy of a recording of the hearing in his possession was about 5 minutes long. Mr Jacob referred the Court to the MRD Hearing Record contained in a bundle of documents marked “Court Book” and filed 9 June 2017. That MRD Hearing Record stated that the duration of the hearing was 3 hours 30 minutes, plainly longer than the 5 minute recording in Mr Jacob’s possession.

6. Mr Jacob frankly told the Court that it had not come to his attention that there was no transcript or full recording until December 2018 when he made a request of the Tribunal for those documents. Today no transcript or full recording has been provided and it is not known whether they exist.

7. I asked Mr Jacob what was the issue to which he expected the transcript to be relevant. Mr Jacob said that it related to adverse credibility findings in respect to applicant. I asked Mr Jacob whether the applicant asserted that there was any inaccuracy in the Tribunal’s decision record and that there was no evidence before the Court to that effect. Nor was there a draft Amended Application making such an allegation and no submissions had been filed in support of the Application, in breach of Orders made by Registrar Morgan on 20 April 2017.

8. Counsel for the first respondent submitted that in absence of a draft Amended Application evidence or submissions or any articulated error identified to the Court this morning, there was no utility in granting the applicant an adjournment. I agreed with those submissions and the adjournment application was refused.

9. I then invited Mr Jacob to address the Court in support of the applicant’s application for judicial review of the Tribunal’s decision. Mr Jacob replied that he had nothing further to say. I then invited counsel for the first respondent to make submissions. In the circumstances, counsel for the first respondent did no more than rely on his written submissions.

10. The two grounds identified in the application, filed on 28 December 2016, are as follows:

    “1. The Second Respondent ignored or misconstrued relevant evidence in finding the Applicant was not in a spousal relationship with the sponsor in that it ignored the following:

    Particulars

    (i) The Second Respondent has failed to take into account the relevant material being the marriage certificate as evidence marriage to the sponsor.

    (ii) The Applicant provided consistent evidence as being in a relationship with the sponsor.

    (iii) The statements of the witnesses who attended the Tribunal hearing.

    2. The Second Respondent failed to consider the Applicant's claim as a victim of family violence.”

Ground 1

1. Ground 1 asserts that the Tribunal ignored or misconstrued relevant evidence in finding that the applicant was not in a spousal relationship with the sponsor.

2. Ground 1 asserts that the Tribunal failed to take into account the marriage certificate as evidence of marriage to the sponsor. However, as the Tribunal decision record makes clear the Tribunal accepted that the applicant and the sponsor were married. The formal marriage is not of itself determinative of the question of whether the applicant was in a spousal relationship with the sponsor at the time of application. That was the issue before the Tribunal.

3. In considering whether the applicant and the sponsor were in a genuine spousal relationship at the time of decision, the Tribunal had regard to the matters set out in r.1.15A(3) of the Regulations. The Tribunal stated that it had considered all the evidence before it, and for reasons given by it found that the parties had not combined their financial resources; the recognition of the parties relationship overseas and in Australia was not one of two people who were in a genuine and continuing spousal relationship; and, there was insufficient evidence that the parties had formed a household that they shared as husband and wife.

4. In addition, the Tribunal put information to the applicant that on 23 June 2015, the sponsor had written to the department and withdrawn her sponsorship. She stated that she was filing for divorce because she believed that the applicant was using her for the Visa and would do anything to remain in Australia.

5. It was those findings that led the Tribunal to conclude that at the time of application the parties were not in a genuine spousal relationship such that they had a mutual commitment to a shared life to the exclusion of all others and that their relationship was genuine and continuing.

6. In the circumstances, the Tribunal found that the applicant did not meet the requirements of s.5F of the Act.

7. The Tribunal had regard to the applicant’s claims as expressed by his migration agent. The Tribunal explored those claims with the applicant at a hearing and put to the applicant concerns it had about the applicant’s evidence and noted the applicant’s responses.

8. The Tribunal identified with specificity the evidence provided by the applicant in support and explained why that evidence was not sufficient to satisfy the Tribunal that the parties were in a genuine spousal relationship. The Tribunal had regard to the applicant’s witnesses, namely, his mother who was in Lebanon when the applicant married the sponsor; and, a friend of the sponsor who claimed to have witnessed ill treatment of the applicant by the sponsor. However, the Tribunal found there to be little evidence to support that the sponsor was committed to a shared life with the applicant or how the sponsor and the applicant offered each other companionship and support.

9. The Tribunal was not satisfied that a spousal relationship ever existed between the applicant and the sponsor. The Tribunal considered the information about the applicant’s claims of family violence. However, in light of the Tribunal’s finding that the parties were not in a spousal relationship, the Tribunal made no determination in relation to the family violence.

10. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; or reaching a finding without a logical; or probative basis, or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

11. It is a matter for the Tribunal the weight that it gives evidence before it. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

12. In the circumstances, Ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

13. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to consider the applicant’s claim to be a victim of family violence. However, as stated above, the Tribunal was not satisfied that the applicant and sponsor had ever been in a spousal relationship and found that they were not spouses as defined in s.5F of the Act at the time of the visa application. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

2. In the circumstances, the Tribunal was not required to make findings in respect of the applicant’s claim of family violence (see Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 at [43] to [44].

3. Accordingly, Ground 2 is not made out.

Conclusion

1. There is no jurisdictional error on the face of the Tribunal’s decision record and none was identified by the applicant or the applicant’s solicitor beyond Ground 1 and Ground 2, dealt with above.

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

3. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 February 2019