Boutros v Minister for Immigration

[2016] FCCA 2415

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOUTROS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2415

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) Visa – whether the Tribunal denied procedural fairness – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB(2), 476, 477, 359, 359A.

Migration Regulations 1994, Schedule 2 cl.820.211, cl.820.22, reg.1.09A(3)

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: MARWAN HANNA BOUTROS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3149 of 2014

Judgment of: Judge Street

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr M Glavac
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3149 of 2014

MARWAN HANNA BOUTROS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 22 August 2014 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) Class UK Visa.  The applicant is a citizen of Lebanon and arrived in Australia in February 2006 on a Subclass 457 temporary business visa, which ceased on 25 November 2007. 

2. On 20 January 2012, the applicant applied for a Partner (Temporary) (Class UK) Visa. The application form stated that the applicant and the sponsor had begun a relationship three years before the application was made and that the applicant and the sponsor decided to commit to a long term relationship on 10 November 2010.  In answer to question 70, in the application form, the applicant stated that the reason the parties were not living together, was due to teenage children at home. At the time of the application, the applicant was not the holder of a substantive visa. 

The Delegate’s Decision

1. On 2 July 2013, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 in Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The applicant did not satisfy the criterion as the applicant was not the holder of a substantive visa at the time the application was made. Further the applicant did not apply within 28 days of the last substantive application. The delegate found that there were no compelling reasons to waive the Schedule 3 criteria for the visa. The applicant applied for review on 26 July 2013. By letter dated 17 July 2014, the applicant was invited to attend a hearing on 19 August 2014.

The Tribunal’s Decision

1. The applicant attended the hearing on 19 August 2014 to give evidence and present arguments. The Tribunal also received evidence from the sponsor. The Tribunal identified the requirements for the visa and relevantly in the present case, the need to determine whether the parties were in a de facto relationship and, if so, the duration of the relationship. The Tribunal also identified the further potential issue as to whether the applicant met the requirement of Schedule 3 of the Act and whether that criteria should be waived.

2. The Tribunal correctly identified the requirements under s.5CB(2) of the Act in relation to the existence of a de facto relationship and identified the obligation to take into account the matters identified in reg.1.09A(3) of the Regulations. The Tribunal’s reasons reflect an orthodox analysis of the applicant’s claims and evidence, as well as that of the sponsor. The Tribunal made adverse findings as to the existence of a de facto relationship and found that it did not accept that the applicant is, or has been, the de facto partner of the sponsor.

3. The Tribunal accepted that the applicant and the sponsor are cousins and have had a family connection for many years. The Tribunal made reference to the likelihood that the applicant’s cousin was trying to assist him out of a sense of family loyalty. However, the Tribunal did not accept that they are or have ever been in a genuine de facto relationship. The Tribunal found that an essential criterion for the visa was not met. The Tribunal was not satisfied that the requirements of s.5CB(2) of the Act were met at the time of the application or, at the time of decision.

4. The Tribunal found that the applicant did not meet the requirements of cl.820.211(2)(a) or cl.820.221 of the Regulations. It was in those circumstances that the Tribunal found that the applicant did not satisfy the criteria for the grant of a visa and affirmed the decision of the delegate.

Proceedings Before This Court

1. The application to this Court was filed on 13 November 2014 and an order was made on 22 May 2015 extending time under s.477 of the Act.

2. At the commencement of the hearing today, the Court explained to the applicant that this was a final hearing. The Court explained to the applicant that the final hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. 

3. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for a further hearing by the Tribunal.  The Court explained that if not satisfied that the decision was affected by relevant legal error, it would dismiss the application.  The applicant confirmed that he understood what had been said by the Court.  The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. 

4. The applicant confirmed that he understood the nature of the hearing as explained by the Court. On 12 March 2015, a Registrar of the Court gave the applicant the opportunity to file an amended application, affidavit evidence, and submissions.  The applicant has filed two sets of submissions, and the first respondent read an affidavit annexing the transcript of the hearing before the Tribunal. 

5. The grounds of the application are as follows:

   While I agree that I did not have a substantive visa I do not agree with the Tribunal’s decision because the Tribunal Member failed to consider that my sponsor and I had been in a long standing de facto relationship for at least two years before the lodgement of my application for partner visa. The Tribunal overlooked the fact that my relationship with my partner (who is related to me) had been in existence for a lengthy period of time prior to the partner visa application.

   The Delegate of the Department refused the application as I did not meet Schedule 3 criteria, the Tribunal refused my current application on the basis of not meeting de facto relationship criteria. The Tribunal failed to take into consideration the evidence on file which supports our de facto relationship.

   (Errors in the original)

6. From the bar table, the applicant maintained that he relied upon his written submissions. 

7. In the applicant’s submissions in reply, the applicant submitted that the relationship was genuine. Ground 1, being the first paragraph, is, in substance, a disagreement with the adverse findings of fact made by the Tribunal.  Ground 1 of the application does not disclose any jurisdictional error.  The adverse findings made by the Tribunal were open on the material before the Tribunal. The adverse findings cannot be said to lack an evident and intelligible justification.  This Court has no power to revisit the merits of the matter and cannot make fresh findings in relation to the merits. 

8. In relation to Ground 2, being the second paragraph, the Schedule 3 criteria was not an exception in relation to the mandatory criterion under s.5CB(2) of the Act. It is apparent from the Tribunal’s reasons, that the Tribunal took into account the evidence adduced by the applicant. It was not necessary for the Tribunal to refer to the whole of the evidence that was before it. Ground 2 fails to make out any jurisdiction error.

9. The applicant’s written submissions filed on 29 February 2016, which were marked Exhibit C, seem to take issue with the adverse findings by the Tribunal. It was a matter for the Tribunal to weigh the applicant’s credit. It is apparent from the transcript of the hearing before the Tribunal, that the Tribunal explored with the applicant the mandatory criterion in relation to s.5CB(2) of the Act. The Tribunal squarely raised with the applicant its concern as to whether or not there was a genuine relationship .

10. There is nothing in the transcript of the hearing before the Tribunal to support the proposition that the Tribunal misunderstood the applicant’s evidence. The criteria in relation to Schedule 3 was not a qualification in relation to the requirements of the criteria in respect of s.5CB(2). There is no substance in the contention that the Tribunal asked itself the wrong question. The Tribunal properly considered the mandatory requirements under s.5CB(2) of the Act and reg.1.09A(3) of the Regulations.

11. These submissions otherwise are in substance a challenge to the adverse findings in respect of the merits. The submissions filed on 29 February 2016, marked as Exhibit C, failed to identify any jurisdictional error. The applicant’s more recent submissions which were handed up in Court today and marked Exhibit A, also seek to take issue with the merits of the application.  It is apparent from the transcript that the Tribunal explored with the applicant the mandatory criterion as referred to above. The Tribunal was not required to put to the applicant its deliberations in relation to the credibility of the applicant and inconsistencies in the applicant’s evidence.

12. It was open to the Tribunal from the material before it to make the observation in relation to why the sponsor might be helping the applicant.  That observation was not, however, an issue that the Tribunal member was required to raise with the applicant, or the sponsor.  It was not an issue that had arisen before the delegate so as to give rise to any consideration of the kind under SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. Nor was the reference to the motivation of the sponsor a matter enlivening any obligation under s.359A of the Act.

13. The assertion in the submissions that the decision was a denial of natural justice and fairness is unparticularised. The generalised assertion does not establish any denial of procedural fairness. On the basis of the material before the Court there is nothing to establish that the Tribunal failed to comply with its statutory obligations in the conduct of its review, nor is there any material to establish any denial of procedural fairness by the   Tribunal in the conduct of the review.  The submissions handed up today marked Exhibit A fail to identify any jurisdictional error.

14. Nothing said by the applicant identified any jurisdictional error.  The disagreement by the applicant with the decision is not of itself, a matter that identifies any relevant legal error in the decision of the Tribunal. 

15. The application is dismissed. 

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

Date: 6 October 2016