Bani Hani v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BANI HANI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 483
Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – whether the Tribunal failed to comply with s.359A of Migration Act 1958 (Cth) – whether decision based upon critical factual error such as to establish jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 357A, 359A, 424A

Migration Regulations 1994 (Cth), reg.1.15A

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
Kanagul v Minister for Border Protection & Anor [2014] FCCA 1219
Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; [2011] FCAFC 21
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
SZGPQ v Minister for Immigration and Citizenship [2007] FCA 648
SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405
SZNKO v Minister for Immigration and Citizenship & Anor (2010) 184 FCR 505; [2010] FCA 297
SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45
Applicant: SALEM AHMED SALEM BANI HANI
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1962 of 2013
Judgment of: Judge Barnes
Hearing date: 24 February 2015
Date of Last Submission: 9 March 2015
Delivered at: Sydney
Delivered on: 10 March 2016

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin
Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers
Counsel for the Respondents: Ms B. Tronson
Solicitors for the Respondents: DLA Piper

ORDERS

  1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

  2. Awrit in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 7 August 2013 in Tribunal case number 1105175. 

  3. A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 6 May 2011.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1962 of 2013

SALEM…
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Details
Case
[2016] FCCA 483
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Bani Hani against a decision of the Migration Review Tribunal (the Tribunal) which affirmed the refusal of his spouse visa application. The core of the dispute revolved around the genuineness and continuing nature of his relationship with Ms. Jackson, the applicant's claimed spouse. The Tribunal had considered various pieces of information, including letters and statements from Ms. Jackson, which appeared to contradict Mr. Bani Hani's evidence regarding the inception of their relationship, financial contributions, and cohabitation.

The legal issues before the court were whether the Tribunal had erred in its assessment of the evidence and whether it had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court needed to determine if the Tribunal was justified in finding that Mr. Bani Hani and Ms. Jackson did not have a mutual commitment to a shared life to the exclusion of others, that their relationship was not genuine and continuing, and that they did not live together or did not live separately and apart on a permanent basis, as required by section 5F of the Act.

The Tribunal's reasoning focused on inconsistencies between Mr. Bani Hani's evidence and the statements provided by Ms. Jackson. The Tribunal noted that Ms. Jackson's letters suggested the relationship was "contrived solely for migration purposes." It highlighted significant discrepancies, such as Ms. Jackson stating she met Mr. Bani Hani in December 2009, contrary to his evidence of meeting in April 2009. The Tribunal also considered Ms. Jackson's accounts of financial non-contribution and periods of non-cohabitation, which appeared to contradict Mr. Bani Hani's claims. The Tribunal found Mr. Bani Hani's evidence to be generalised and not particularly compelling, leading it to conclude that the relationship was not genuine and continuing, and therefore, the criteria for a spouse visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s s.359A letter of 22 July 2013 set out particulars of information as follows:Visa history/ evidence concerning inception of the relationship· The department’s records indicate that you arrived in Australia on 4 February 2007 on a subclass 570 student visa. This visa ceased on 30 June 2008. On 4 July 2008 you applied for another student visa. However on 14 August 2008 the department refused to grant you the visa. On 8 January 2010 the Migration Review Tribunal affirmed the department’s decision. On 8 February 2010 you sought Ministerial intervention. However on 27 April 2010 the Minister declined to intervene. On 28 May 2010 you lodged the current spouse visa application on the basis of your marriage to Ms Jackson. · On 6 July 2010 Ms Jackson wrote a letter that relevantly provides: “I met Salem Ahmed Bani Hani 19 Dec 2009 with my friend’s birthday party. After two weeks later Salem call me he ask date with me. First date 2 Jan 2010 second date 9 Jan 2010 and that last date. I start calling Salem and his mobile is turn off and I sent message what happening. I start calling Salem and his mobile is turn off and I sent message what happening. Salem told me that I am too old for him and I said is okey no worry see u later bye. Anyway I said to Salem am going back to my ex-husband anyway. After one month later Feb 2010 he call me. Salem said to me he change his mind. Salem want to marry me as soon as possible. I said to Salem why do u want to marry me. Salem said to me he don’t want to lose me. He say sorry and he told me Salem love me”.· A witness statement dated 11 June 2010 taken at Surry Hills Police Station by Ms Jackson in part provides: “When I first met my husband before we got married, he was very urgent to get married. He told me he was in Australia on a student visa.”The above information is relevant because you gave evidence that you met Ms Jackson in April 2009 and that you had numerous dates. You also stated that you and Ms Jackson discussed marriage on Australia Day (26 January 2010) at Darling Harbour.Your evidence appears to be inconsistent with the contents of Ms Jackson’s letter.This inconsistency could lead the Tribunal find (sic) that your evidence concerning the inception and history of the relationship is not credible. The Tribunal may find that you met Ms Jackson in December 2009 and hastily married her. When this is looked at in conjunction with your visa history, this could lead the Tribunal to infer that the only reason that you married Ms Jackson was to attempt to obtain a visa. The Tribunal could find that you never had any intention of having a mutual commitment to a shared life as husband and wife to the exclusion of others and that you never intended that the relationship be ongoing.This could lead the Tribunal to find that your relationship with Ms Jackson was never at any stage genuine and continuing. This in turn would be a part of the reason for the Tribunal affirming the decision under review.Evidence concerning financial affairs· Ms Jackson’s letter of 6 July 2010 indicates that you never helped Ms Jackson “to pay the rent and bills and food”.· A witness statement dated 11 June 2010 taken at Surry Hills Police Station by Ms Jackson in part provides: “I said to him “Have you paid the rent?” He said “No, I don’t pay for nothing.” He then grabbed my rental card and threw it at me.”· Ms Jackson’s letter of 10 November 2010 provides in part: “We fight too much for everything like food and other expenses for any bill. He just want to use me to stay in this country. He work 6 days a week he can’t even spend food to me or nothing.” · Ms Jackson’s letter dated 14 March 2011 provides in part: “He make me sign this papers that he supports me for financial and help me for bill he never do anything.”The above information is relevant because you gave evidence that during the period from March 2010 to May 2011 you and Ms Jackson used to share household bills.Your evidence appears to be inconsistent with Ms Jackson’s letters and statement to the police.The inconsistency in evidence could lead the Tribunal to not accept your evidence that you financially contributed to household (sic) during the period that you lived at the same address as Ms Jackson. This could also lead the Tribunal to not accept your evidence about other aspects of your relationship with Ms Jackson. In particular the Tribunal could find that your relationship with Ms Jackson was never at any stage genuine and continuing.This in turn would be a part of the reason for the Tribunal affirming the decision under review. Evidence concerning cohabitation· Ms Jackson’s letter dated 22 September 2010 states in part: “Since July 2010 we are not live together because after 2 week 27 July 2001 (sic) I catch his cheating…..[I have had] nothing to do with Salem Ahmed Bani Hani since July 2010. He use my address his letters for to do Government.”The above information is relevant because you gave evidence that apart from a few weeks in June/July 2010 you and Ms Jackson shared the same address at Surry Hills from March 2010 to May 2011.Your evidence appears to be inconsistent with Ms Jackson’s letter and statement to the police.The inconsistency in evidence could lead the Tribunal to not accept your evidence concerning the periods of time you were living at Surry Hills. This could also lead the Tribunal to not accept your evidence about other aspects of your relationship with Ms Jackson. In particular the Tribunal could find that your relationship with Ms Jackson was never at any stage genuine and continuing. This in turn would be a part of the reason for the Tribunal affirming the decision under review. All of the above informationAll of this information above may be relevant to affirming the decision under review as it may indicate that at the time of the visa application you and Ms Jackson may not have been living together, or not living apart on a permanent basis; may not have been in a genuine and continuing relationship; and that you may not have had a mutual commitment to each other as husband and wife, to the exclusion of all others. This may indicate that you may not meet the definition of “spouse” in regulation 1.15A of the Migration Regulations 1994.If the Tribunal finds that Ms Jackson was not your spouse at the time of application, it may find that clause 820.211 of Schedule 2 to the Migration Regulations 1994 is not satisfied.If the Tribunal finds that this clause is not satisfied it must affirm the decision under review to refuse to grant a Class UK visa.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Under the heading “Comments/response to adverse information” the Tribunal stated that the departmental file contained “various letters written by Ms Jackson that at face value contradict aspects of Mr Bani Hani’s evidence about the relationship” and observed that “[t]he context of Ms Jackson’s letters suggests that the relationship between the parties was contrived solely for migration purposes” (emphasis added). The Tribunal referred to the fact that on 22 July 2013 it had written to Mr Bani Hani under s.359A of the Migration Act putting to him information that was said to include his visa history and “relevant excerpts” from Ms Jackson’s letters “concerning the inception of the relationship; financial aspects of the relationship and the parties’ cohabitation”. It recorded that on 2 August 2013 it received Mr Bani Hani’s response. In its findings and reasons the Tribunal stated that the first question was whether Mr Bani Hani was Ms Jackson’s “spouse…within the meaning of s.5F of the Act at the time of the visa application”. It found that at the time of the visa application, Mr Bani Hani and Ms Jackson were married and hence met s.5F(2)(a) of the Act. The Tribunal stated that in forming an opinion as to whether they had a mutual commitment to a shared life to the exclusion of others, whether their relationship was genuine and continuing and whether they lived together or did not live separately and apart on a permanent basis (as required under s.5F(2)(b), (c) and (d) of the Act) it had had regard to “all of the circumstances of the relationship”. The Tribunal made “[g]eneral comments regarding credibility”. It found that Mr Bani Hani did not present as a particularly compelling witness and that his evidence about the nature of his relationship with Ms Jackson was “very generalised”. The Tribunal continued: 37. Given Mr Bani Hani’s claims of domestic violence, the tribunal did not invite Ms Jackson to the hearing, or take evidence directly from her. However, Ms Jackson wrote a series of letters to the department. These letters describe various stages of the history of the relationship and her views about the relationship. Significantly, there are various aspects mentioned by Ms Jackson that appear to be inconsistent with Mr Bani Hani’s evidence (emphasis added).38. Most significantly, Ms Jackson wrote that she first met Mr Bani Hani in December 2009, as opposed to Mr Bani Hani’s evidence that they met in April 2009. For example, on 6 July 2010 Ms Jackson wrote:“I met Salem Ahmed Bani Hani 19 Dec 2009 with my friend’s birthday party. After two weeks later Salem call me he ask date with me. First date 2 Jan 2010 second date 9 Jan 2010 and that last date. I start calling Salem and his mobile is turn off and I sent message what happening. Salem told me that I am too old for him and I said is okey no worry see u later bye. Anyway I said to Salem am going back to my ex-husband anyway. After one month later Feb 2010 he call me. Salem said to me he change his mind. Salem want to marry me as soon as possible. I said to Salem why do u want to marry me. Salem said to me he don’t want to lose me. He say sorry and he told me Salem love me”.