CHEBBOUB v Minister for Immigration and Anor

[2020] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEBBOUB v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1983

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Provisional) (Class UF) (Subclass 309) visa – whether the Tribunal applied the relevant law – whether the Tribunal took into account relevant considerations – whether the Tribunal – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F, 476

Migration Regulations 1994 (Cth), reg 2.03A

Applicant: YAZID CHEBBOUB

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2041 of 2019

Judgment of: Judge Street

Hearing date: 21 July 2020

Date of Last Submission: 21 July 2020

Delivered at: Sydney

Delivered on: 31 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Mr X Goffinet via Microsoft Teams
Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2041 of 2019

YAZID CHEBBOUB

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 5 August 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Provisional) (Class UF) (Subclass 309) visa (“Partner visa”).

2. On 23 August 2016, the visa applicant, a citizen of Algeria, applied for a Partner visa on the basis of her relationship with her sponsor, the applicant.

3. On 10 July 2017, the Delegate found that the visa applicant failed to meet the criteria for the grant of a Partner visa.

4. On 20 July 2017, the applicant lodged an application for review of the Delegate’s decision. By letter dated 20 December 2018, the applicant was invited to attend a hearing on 30 January 2019. The hearing took place on 30 January 2019, at which both the applicant and the visa applicant gave evidence.

5. The Tribunal in its reasons identified the background to the application for review of the Delegate’s decision. The Tribunal correctly identified the relevant criteria in relation to ss 5F and 5CB of the Act.

6. The Tribunal found that the parties were not lawfully married for the purpose of s 5F of the Act.

7. The Tribunal turned to whether the parties were in a de facto relationship. The Tribunal correctly identified the relevant criteria and accepted that the parties were at least in a genuine and continuing relationship.

8. The Tribunal found that the requirements of s 5CB(2) of the Act were met at the time of application and decision and that the visa applicant accordingly met cls 309.211 and 309.221 of the Regulations.

9. The Tribunal turned to the requirements of reg 2.03A of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal correctly identified the alternatives of the applicant establishing that the de facto relationship had been for at least twelve months before the Partner visa application or there being compelling and compassionate circumstances for the grant of the Partner visa.

10. The Tribunal identified the date of the purported marriage and that the parties had identified that their relationship came into existence on the date they married, being April 2016. The Tribunal was not satisfied that the applicant had been in a de facto relationship for at least the twelve month period ending immediately before the date of the application.

11. The Tribunal turned to the issue of compelling and compassionate circumstances. The Tribunal referred to the applicant’s evidence that he needs a wife to care for his children and that he cannot live in Algeria and that it was stressful looking after his children and working. The Tribunal also referred to the visa applicant’s evidence about it being hard for the applicant to manage his home, care for his children and work at the same time.

12. The Tribunal referred to the assertions of being in a genuine relationship and that there is an emotional impact upon the couple. The Tribunal referred to the visa applicant’s evidence in relation to seeking to share the good times and the hard times as well as accepting that it is hard for a single parent to raise children and work at the same time and that this can also be stressful.

13. The Tribunal found that there was little evidence that the degree of hardship or stress the applicant suffers would be any different from any other single parent in the same situation. The Tribunal accepted that the parties want to live as a family unit in Australia. The Tribunal, however, was not satisfied that these circumstances are compelling and compassionate circumstances to grant the Partner visa.

14. The Tribunal referred to the emotional hardship that would be experienced. The Tribunal found that it had not been provided sufficient evidence to substantiate such claims and demonstrate the severity of the anticipated emotional and psychological hardship and how it would differ from other couples required to separate while they awaited an offshore application.

15. The Tribunal referred to the applicant’s evidence about having made a mistake in terms of the timing of the application and his divorce from his former wife. Had the applicant waited until the divorce and then married the visa applicant, the parties would not have had to meet the criteria in relation to the de facto relationship. The Tribunal also referred to the applicant’s evidence that he was unaware that he was not divorced at the time he married the visa applicant and made reference to the evidence in relation to the lodgement of the application for divorce which was not issued until June 2016. The Tribunal expressed the view that it was for the applicant to ensure that he finalised his divorce to allow his marriage to be recognised as a valid marriage for the purpose of Australian law. The Tribunal found that these were not compelling and compassionate circumstances to grant the visa.

16. The Tribunal referred to having considered the totality of the visa applicant’s circumstances and was not satisfied that there were compelling and compassionate circumstances to grant the Partner visa.

17. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 9 August 2019.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant put oral submissions in relation to the moneys he had paid in relation to the Partner visa and asserted that there had been a fraud by his migration agent in relation to the lodgement of his application for the Partner visa and the timing of the same. There is no evidence to support the assertion of fraud and or negligence by the applicant’s migration agent. It does not give rise to any operative fraud by the Tribunal. Nothing said by the applicant in relation to the criticism of the advice given by his migration agent identifies any jurisdictional error.

4. The applicant also referred to the amount he had paid in relation to the relationship with the visa applicant. This does no more than invite merits review.

5. The applicant also submitted that in considering compelling and compassionate circumstances, the Tribunal had not taken into account the medical evidence concerning the health of one of his children. It is apparent that the Tribunal expressly referred to the applicant’s claims concerning his need for a wife to care for his children. In the course of submissions, the applicant expressly said that there is no real problem looking after his children. Be that as it may, it is apparent that the Tribunal referred to the need for care for the applicant’s children and found that that was not a compelling and compassionate circumstance. There is no requirement for the Tribunal to refer to every piece of evidence before the Tribunal.

6. The Court has had the benefit of the transcript of the hearing before the Tribunal. It is apparent that the Tribunal raised with both the applicant and the visa applicant the issue of compelling and compassionate circumstances. In the context of the submissions and material put before the Tribunal, there was no requirement upon the Tribunal to expressly refer to the medical evidence concerning the asthma of one of the children.

7. The Court accepts the first respondent’s submission that the reference in paragraphs 52 and 55 of the Tribunal’s reasons in relation to the Tribunal having considered the totality of the visa applicant’s circumstances is such that the Court does not accept that there is any failure to take into account the asthma of one of the review applicant’s children, nor was there any need in the circumstances for the Tribunal to expressly refer to that evidence. The Court is satisfied that the Tribunal had a real and meaningful or active intellectual engagement with the visa applicant’s claims and evidence in relation to whether there were established compelling and compassionate circumstances.

8. In light of the Tribunal’s reasons that refer to having considered the totality of the visa applicant’s circumstances, the Court finds no jurisdictional error is made out by reason of the applicant’s reference to the medical condition being asthma of his child. It is not expressly referred to in the Tribunal’s reasons. That is because the Court here is not satisfied that the Tribunal failed to take into account the totality of the circumstances and this is not a case where it was necessary for the Tribunal to make express reference to the asthma condition of the child. No jurisdictional error arises by reason of the applicant’s reference to his child’s health.

9. The applicant also referred to the material in the Court Book, including the letter from his employer, that he had not been employed for the last two years and saying that he could not work and referring to the impact upon him of the adverse decision by the Tribunal. The applicant also referred to a recent event in relation to his own health. Matters that were not before the Tribunal in relation to the merits of the application are not matters that are capable of giving rise to a jurisdictional error by the Tribunal.

10. The applicant’s submissions otherwise invited the Court to determine the matter on compassionate or discretionary grounds. This Court has no power to determine the matter on compassionate or discretionary grounds. The applicant’s submissions otherwise invited the Court to engage in merits review. This Court has no power to review the merits.

11. Nothing submitted orally by the applicant identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. The Member of the Tribunal had sufficient evidence about my relationship with my wife and in spite of technical issue regarding marriage before divorce was finalised in Australia the Member failed to consider our application as de facto and failed to act upon compelling circumstances provided before and after the hearing.

   2. The decision by the Tribunal is not reasonable because the tribunal failed to act upon the compelling and compassionate reasons which exist.

   3. If the Tribunal’s opinion that at the time of my marriage I was still legally married the marriage which cannot be recognised as valid according to Australian law should be recognised and accepted as de facto relationship while the Tribunal is satisfied that our relationship is stable, mutually supportive and a long term one and the tribunal accepted and considered our evidence with regard to our commitment to each other as plausible, persuasive and genuine and that the tribunal is satisfied that we view our relationship as a long term one and the tribunal misunderstood the term ‘compelling’ and failed to accept our relationship is valid for the purpose of migration law.

   4. The Tribunal accepted that we are legally married according to Algerian law and have been in relationship for more than three years yet no request was made by the Department and the Tribunal about the non validity of the marriage.

   5. I have been denied natural justice and fairness.

Ground 1

1. Ground 1 is, in substance, an invitation to engage in merits review by reason of the reference of asserting a failure to act upon compelling circumstances. It was a matter for the Tribunal to determine whether the visa applicant had established compelling and compassionate circumstances. The applicant’s disagreement with the same does not identify any jurisdictional error.

2. Having had the benefit of the transcript, it is apparent that the applicant had a real and meaningful hearing before the Tribunal and that the Tribunal complied with its statutory obligations in the conduct of the review. It is further apparent that the Tribunal gave logical and rational reasons in support of the adverse finding in relation to whether there had been established by the visa applicant compelling and compassionate circumstances. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this again, in substance, invites merits review. The Tribunal gave reasons in support of the adverse finding that the visa applicant had failed to establish compelling and compassionate circumstances. Those reasons included the finding that there was little evidence to demonstrate the degree of hardship or stress that the sponsor suffers would be any different to other single parents in the same situation, the absence of sufficient evidence to substantiate their claims and demonstrate the severity of the anticipated emotional or psychological hardship and rejecting the applicant’s explanation about the mistake in identifying that it was his obligation to ensure that his divorce was finalised. In these circumstances, the adverse finding by the Tribunal in respect of compelling and compassionate circumstances cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, there is no basis to find that the Tribunal misunderstood the requirements of reg 2.03A(3) of the Regulations in respect of compelling and compassionate circumstances. The Tribunal correctly identified the relevant law. On the face of the Tribunal’s reasons, the Tribunal made adverse findings that were open for the reasons given by the Tribunal. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, this expresses disagreement in relation to Australian law and the statutory criteria. It does not identify any basis by reason of which the Court could find there was a jurisdictional error. The Tribunal was correct to find that the parties were not legally married according to Australian law and that the parties had to meet the de facto relationship criteria. No jurisdictional error is made out by ground 4.

Ground 5

1. Ground 5 is a bare assertion of a denial of natural justice and fairness and, without particulars, is incapable of making out any jurisdictional error. The Court has the benefit of the transcript of the hearing and, as identified above, is satisfied that the applicant had a real and meaningful hearing before the Tribunal and that the Tribunal’s reasons reflect an active intellectual engagement with the visa applicant’s claims and evidence. No jurisdictional error as alleged in ground 5 is made out.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 31 July 2020