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: | 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
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
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.
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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- Case
- [2016] FCCA 483
- Decision Date
CaseChat Overview and Summary
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
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”.