CHAKER v Minister for Immigration

[2017] FCCA 2187

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAKER v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2187

Catchwords:
MIGRATION – Application for Constitutional writ – partner visa cancellation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulations 1994 (Cth), regs 1.22, 1.23, 1.25, Sch 2, cl 820.221

Applicant: MAHMOUD CHAKER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 545 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 545 of 2016

MAHMOUD CHAKER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 February 2016 affirming a decision of the delegate not to grant the applicant a partner temporary class UK visa.

2. The applicant is a citizen of Lebanon who came to Australia on a student TU 573 visa on 26 March 2013. The applicant married the sponsoring partner on 20 September 2013. The applicant applied for a partner temporarily class UK subclass 820 visa and partner residence class BS subclass 801 visa on 10 October 2013.

3. On 18 February 2014 the applicant’s sponsor wrote to the Department identifying that they had recently separated and were going to apply for a divorce. The letter identified that the applicant had been mentally abusive towards the sponsor. The letter identified that the applicant would not allow the sponsor to work or study and effectively used her as a slave for his wife and children.

4. The applicant’s sponsor alleged that the applicant made comments about hating the day that he met the sponsor. The sponsor alleged that the applicant never allowed her to have an opinion on anything and physically abused her during their time together leaving his five finger marks on her body. The sponsor alleged the applicant forced her to wear the hijab and tried to make her wear a burka. The sponsor alleged the applicant impeded her obtaining work or commencing study and told her that women are not meant to work and they are meant to be home to cook and clean and stay at home.

5. The sponsor alleged that the applicant took her Youth Allowance until she refused to give him money and then he took her jewellery. The sponsor alleged during the three months that she was with the applicant that he mentally and physically repeatedly abused her. The applicant alleged that she was trying to overcome the stress of mental and physical abuse. It was after the sponsor’s letter that the applicant, on 2 March 2014, first alleged that he had been the victim of domestic violence.

6. That domestic violence was apparently verbal and said to cause the applicant stress whereby the applicant had to go and see a psychologist. The applicant was five years older than the sponsor. On 6 November 2014 the delegate refused the grant of the partner visa. The delegate was not satisfied the applicant was the spouse of the sponsor.

Review by Tribunal

1. On 19 November 2014, the applicant applied for review to the Tribunal. The applicant was invited to attend a hearing on 24 November 2015, which the applicant attended to give evidence and present arguments.

2. The Tribunal being unsatisfied that the relevant domestic violence had occurred referred the matter as required under the Migration Regulations 1994 (“the Regulations”) to an independent expert. The independent expert identified the applicant’s claims in relation to verbal violence and the stress to which he was allegedly exposed. The expert found that the applicant had not suffered relevant family violence according to the Regulations.

3. The Tribunal forwarded the expert’s report to the applicant by letter dated 19 January 2016 and gave the applicant an opportunity to comment on or respond to the report and the particulars identified in the letter dated 19 January 2016 which also explained why the information was relevant. No response was provided by the applicant.

4. The Tribunal in its reasons of 15 February 2016 identified the background to the application. The Tribunal identified that the issue in the present case was whether the relationship had ceased because the applicant had been the victim of family violence. The Tribunal correctly identified the relevant law. The applicant told the Tribunal that the sponsor and her family belittled him and called him names and physically and emotionally and financially abused him.

5. The Tribunal referred to the applicant’s letter withdrawing her sponsorship in which she had also provided photographs of the physical injuries she alleged she sustained from the applicant. The Tribunal correctly identified that no adverse weight should be placed upon that material as those claims do not necessarily preclude the applicant from his own claim of suffering family violence. The Tribunal identified that the applicant complied with the requirements of reg 1.25 of the Migration Regulations 1994 (Cth) in relation to raising a claim of relevant family violence.

6. The Tribunal identified after the hearing that the matter was referred to an expert in circumstances where the Tribunal was not able to make a favourable decision that the applicant had been the subject of family violence.

7. The Tribunal identified the conclusion of the independent expert that the relevant family violence that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about his or her own personal wellbeing or safety has not occurred. The Tribunal noted that there had been no response to the information forwarded to the applicant under s 359A in the letter dated 19 January 2016.

8. The Tribunal was satisfied that the opinion of the independent expert is authorised by the Regulations and provided by an independent expert who is a person suitably qualified to make the assessment and is an employee of an organisation specified for that purpose and that the report and opinion was properly made.

9. The Tribunal correctly identified that under reg 1.23 the Tribunal is required to take as correct the expert’s opinion if properly made. The Tribunal found the applicant is not taken to have suffered family violence committed by the sponsor for the purpose of reg 1.22. Given that the relevant family violence has not been established, the Tribunal found the applicant does not meet the requirements of cl 820.221(3) for the grant of a visa and affirmed the decision under review.

Hearing in this Court

1. On 7 April 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant that this was a final hearing 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 unfair.

3. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be sent back for further hearing. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

4. From the bar table the applicant maintained that all of the allegations in the letter dated 18 February 2014 by his sponsor were not correct and that that had been written by another person, not the sponsor, and it was him that had been the victim of family violence. The applicant alleged that he had been called a “monkey” and other hurtful names. The applicant alleged that he was suffering stress and had to see a psychologist on three occasions and take a month off work. Nothing said by the applicant from the bar table identified any jurisdictional error.

5. The applicant’s submissions were, in substance, an invitation to this Court to engage in an impermissible merits review. The Court has no power to review the merits.

Grounds

1. The grounds of the application are as follows.

   1. The assessment report from an independent expert does not reflect that I was a victim of domestic violence. I do not agree with the report because I am a victim of domestic violence.

   2. I wish to submit detailed grounds when I receive copy of my documents.

   3. I feel that the Tribunal failed to understand my circumstances and failed to consider the evidence on file.

Ground 1

1. Ground 1 reflects a disagreement with the adverse findings by the Tribunal. The Tribunal is required to take the expert’s opinions, if properly made, as correct. A disagreement by the applicant with the decision of Dr Collins does not identify any relevant error in the making of the expert’s opinion. Nothing in Ground 1 makes out any jurisdictional error.

Ground 2

1. Ground 2 identifies a future aspiration that has not come to pass and does not identify any jurisdictional error.

Ground 3

1. In relation to Ground 3, it is apparent that the Tribunal correctly understood the issue raised for domestic family violence and, being unable to make a favourable decision for the applicant in respect of non-judicially determined family violence, correctly referred the matter to the independent expert. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the obligations of procedural fairness in the conduct of the review.

2. Given the definition of “domestic violence” which is focussed on whether the alleged victim was reasonably apprehensive about their own personal wellbeing or safety, the adverse finding by the expert cannot be said to be irrational, illogical or unreasonable. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017