Danoun v Minister for Immigration

[2016] FCCA 2941

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANOUN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2941

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.5F
Migration Regulations 1994 (Cth)

Applicant: NOURHAM DANOUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1208 of 2016

Judgment of: Judge Driver

Hearing date: 15 November 2016

Delivered at: Sydney

Delivered on: 15 November 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1208 of 2016

NOURHAM DANOUN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Nourham Danoun, is the wife of Mr Shadi Garnem, a resident of Kuwait.  Mr Garnem applied for a partner visa, which was refused by a delegate of the Minister.  Ms Danoun sought review of that decision before the Administrative Appeals Tribunal (Tribunal), but on 21 April 2016 the Tribunal affirmed the decision of the delegate. 

2. Ms Danoun and Mr Garnem live on opposite sides of the world.  They have not seen each other for years.  In presenting her case to me, Ms Danoun was distressed and pleaded for someone to overcome the obstacles to she and her husband living together.  Unfortunately for Ms Danoun, the Court cannot remove those obstacles.  The case calls for a compassionate consideration, but the Court must deal with the legal reality.

3. The background to this matter is set out otherwise in the Minister’s outline of legal submissions filed on 3 November 2016. 

4. On 20 March 2013, Mr Garnem applied for a partner (Provisional) (Subclass 309) visa on the basis of his marriage to his sponsor (Ms Danoun, an Australian citizen)[1].  It was a primary criterion at the time of decision for the grant of the visa that the visa applicant was the spouse of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen[2].

   [1] Court Book (CB) 6-32

   [2] Migration Regulations 1994 (Cth) (Regulations), clause 309.221

5. Relevantly, a person is in a spousal relationship with another if they have a mutual commitment to a share life as husband and wife to the exclusion of all others; the relationship between them is genuine and continuing and they live together (or do not live separately and apart on a permanent basis)[3]. In determining whether a spousal relationship exists, the decision-maker must take into account the matters set out in regulation 1.15A(3) of the Regulations namely, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

   [3] Migration Act 1958 (Cth), s.5F

The delegate

1. On 2 March 2015, the delegate refused the visa because the delegate was not satisfied that the parties were in a genuine spousal relationship[4].

   [4] CB 270-279

The Tribunal

1. On 9 April 2015 Ms Danoun lodged a review application with the Tribunal[5].  She was invited to[6] and attended a hearing before the Tribunal on 19 April 2016[7].

   [5] CB 280-282

   [6] CB 289-290

   [7] CB 405

2. In its decision dated 21 April 2016, the Tribunal affirmed the decision under review. The Tribunal found[8] that the parties were married to each other under a marriage valid pursuant to s.5F(2)(a). It noted that no evidence had been provided of the parties’ joint ownership of any assets or liabilities, and whilst it considered the evidence relating to money transfers, it retained concerns that these transactions were made to obtain evidence of financial pooling and were not reflective of the applicants’ true financial circumstances[9]. The Tribunal was also concerned that Ms Danoun had not visited Mr Garnem since December 2012[10].

   [8] CB 417, [9]

   [9] CB 417, [14]

   [10] CB 418, [15]

3. The Tribunal appreciated that the parties resided in different countries (Australia and Kuwait) and this restricted their capacity to provide evidence of day to day expenses. It also accepted that there had been some money transfers but found overall there was “very little information” as to the financial aspects of the relationship to show any pooling of their financial resources or joint responsibility for their financial affairs that would be indicative of a genuine and continuing relationship[11].  The Tribunal was not satisfied that there was adequate evidence that the parties resided together in the same household for three months as was claimed because there was very limited information as to the nature of the parties’ household, being the rent receipts and their own assertions[12].

   [11] CB 418, [16]

   [12] CB 418, [18]

4. The Tribunal was not satisfied that there was persuasive evidence that the parties represented themselves to other people as being married to each other. Although it accepted that Ms Danoun had told people in Australia about the relationship, and often talked about Mr Garnem, none of Ms Danoun’s friends had met Mr Garnem. The Tribunal accepted that Ms Danoun’s son saw the parties together for a short period of time in Kuwait[13] but he did not attend the hearing to give evidence about the relationship[14].

   [13] CB 419, [21]

   [14] CB 419, [20]

5. The Tribunal identified inconsistencies in Ms Danoun’s evidence about her contact with Mr Garnem after they first met in a restaurant in 2003 and found these were “problematic”[15]. The Tribunal was also concerned that the parties had not seen each other for over three years (at the time of the Tribunal decision) and was not satisfied that Ms Danoun had adequately explained this. It found this indicated that there was not a mutual commitment to a shared life between the parties[16].  The Tribunal also found that the parties’ evidence about their future plans to start a family lacked persuasive detail[17].

   [15] CB 419, [22]

   [16] CB 420, [23]

   [17] CB 420, [24]

6. For these reasons, the Tribunal was not satisfied the parties had a mutual commitment to a shared life to the exclusion of others, that their relationship was genuine and continuing and that they lived together or not separately and apart on a permanent basis. Accordingly, it found the parties did not meet clause 309.211 and clause 309.221 and affirmed the decision under review[18].

   [18] CB 421, [26]

The present proceedings

1. These proceedings began with a show cause application filed on 16 May 2016.  Ms Danoun continues to rely upon that application.  There are two grounds in it:

   1. The Tribunal misapplied the law and misinterpreted the relevant provisions and the decision is made contrary to the evidence before it.

   2. I will provide particulars when I receive my file.

2. The application is supported by a short affidavit by Ms Danoun filed with it, which I received.  I also received the affidavit of Toufic Laba-Sarkis made on 23 June 2016.  Annexed to that affidavit is a transcript of the hearing conducted by the Tribunal on 19 April 2016.  The evidence is completed by the court book filed on 3 August 2016. 

3. Both Minister and Ms Danoun prepared written submissions and made oral submissions at the hearing this morning.  In her written and oral submissions, Ms Danoun takes issue with the factual findings and reasoning of the Tribunal.  She is concerned in particular about the Tribunal’s conclusions concerning the financial and social aspects of the relationship and the nature of the household.  She maintains that given the physical separation of her husband and her, she had presented all that should be needed to establish a genuine commitment to a shared life together. 

4. Nevertheless, it is apparent from the Tribunal’s reasons that the conclusions reached by it were open to it on the material before it.  The Tribunal took evidence from Ms Danoun and her husband and took into account that evidence.  Ms Danoun might have been assisted by evidence from her son who had been nominated as a witness in response to the Tribunal’s invitation to hearing.  That nomination appears in the response to hearing invitation at CB 293.  However, as explained by the Tribunal, Ms Danoun’s son did not attend the Tribunal hearing.  The Tribunal did not place any adverse conclusion on his absence. 

5. In my view, the process followed by the Tribunal was fair, consistently with the procedural code under which the Tribunal operates and the conclusion reached by the Tribunal were open to it on the material before it.  I otherwise agree with the Minister’s submissions concerning the grounds for review. 

Ground 1

1. Ms Danoun broadly asserts that the Tribunal “misapplied the law” and “misinterpreted the relevant provisions” and that the decision was made “contrary to the evidence before it”.  Without any particulars to make these assertions meaningful, the ground cannot succeed. The Tribunal made detailed references to the parties’ documentary evidence[19].  The allegation that the decision was made “contrary to the evidence” cannot be sustained and the factual findings made by the Tribunal were open to it on the available evidence for the reasons that it gave.  At its highest, it is simply an expression of Ms Danoun’s dissatisfaction with the Tribunal’s factual conclusions and a request for impermissible merits review.

   [19] see, for instance [11]-[12], [14] and [17]

Ground 2

1. Ground 2 is not a proper ground of review and simply asserts that particulars will be provided when Ms Danoun receives her file.  Ms Danoun’s affidavit simply annexes the Tribunal’s decision and fails to advance her case in any meaningful way.

2. I conclude that Ms Danoun is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

3. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

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

Date: 17 November 2016