El Ater v Minister for Immigration

[2017] FCCA 1942

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL ATER v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1942

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application by male applicant for a Partner (Subclass 801) visa – at time of decision the married relationship had irretrievably broken down between applicant and his sponsor – Administrative Appeals Tribunal correct to so find on admission of Applicant himself – Administrative Appeals Tribunal did not commit jurisdictional error – application for jurisdictional review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65

Migration Regulations 1994 (Cth)

Applicant: AHMAD MOHAMAD EL ATER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 318 of 2016

Judgment of: Judge Dowdy

Hearing date: 9 November 2016

Delivered at: Sydney

Delivered on: 22 August 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms S He

Solicitors for the Respondents: DLA Piper

THE COURT ORDERS AS FOLLOWS:

1. The Application filed in this Court on 15 February 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 318 of 2016

AHMAD MOHAMAD EL ATER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Lebanon aged 43 years, having been born on 8 February 1974.

2. By Application filed in this Court on 15 February 2016 he seeks to quash and have re-determined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 29 January 2016 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 24 November 2014 refusing to grant the Applicant a Partner (Residence) (Class BS) (Subclass 801) visa (Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

3. The Applicant applied for a Partner visa on 17 December 2010 founded and based on his alleged spousal relationship with an Australian citizen, Ms Sweidi Shamo (sponsor) who lodged a sponsorship in support of his Partner visa application.

4. On 19 March 2012 the Applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa preparatory to consideration of his Partner visa application under Subclass 801 and which cl.801.221(2)(a) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) required him to hold at time of decision of his Partner visa application.

5. The Applicant and his sponsor had married in accordance with Australian law on 6 September 2010.

6. For the purposes of his Partner visa application the Applicant had to establish at time of decision to the satisfaction of the Minister that he was the spouse of his sponsor as required by cl.801.221(2)(c).

7. At all relevant times s.5F of the Act defined a “spouse” for the purposes of the Act and the Regulations, and necessarily cl.801.221(2)(c), as follows:

   5F      Spouse

   (1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i)     live together; or

   (ii)    do not live separately and apart on a permanent basis.

   (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   (emphasis added.)

8. Regulation 1.15A had been made for the purposes of s.5F(3) of the Act and relevantly was as follows:

   1.15ASpouse

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)  ………………            

   (3)  The matters for subregulation (2) are:  

   (a) the financial aspects of the relationship, including:

   (i)     any joint ownership of real estate or other major assets; and

   (ii)     any joint liabilities; and

   (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)    the basis of any sharing of day‑to‑day household expenses; and  

   (b) the nature of the household, including:

   (i)      any joint responsibility for the care and support of children; and 

   (ii)     the living arrangements of the persons; and  

   (iii)  any sharing of the responsibility for housework; and  

   (c)the social aspects of the relationship, including:  

   (i)     whether the persons represent themselves to other people as being married to each other; and  

   (ii)  the opinion of the persons’ friends and acquaintances about the nature of the relationship; and  

   (iii)  any basis on which the persons plan and undertake joint social activities; and  

   (d)  the nature of the persons’ commitment to each other, including:  

   (i)     the duration of the relationship; and      

   (ii)     the length of time during which the persons have lived together; and  

   (iii)  the degree of companionship and emotional support that the persons draw from each other; and  

   (iv)    whether the persons see the relationship as a long‑term one.

Decision of Delegate

1. By his Decision Record of 24 November 2014, the Delegate found that he was not satisfied that the Applicant and his sponsor had pooled their finances or had any significant joint assets or liabilities or any significant joint purchases or that they shared any day-to-day financial responsibilities. The Delegate was also not satisfied that the Applicant and his sponsor maintained a shared household and was further not satisfied that there was any evidence that their relationship was a long-term one or that they had a shared commitment to a life together.

2. In short, the Delegate did not find the Applicant and his sponsor to be in a genuine continuing spousal relationship and he refused the Partner visa application.

Application for Review to the Tribunal

1. On 12 December 2014 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal.

2. By letter dated 4 December 2015 the Tribunal invited the Applicant to appear before it on 28 January 2016 as he did, together with two supporters as witnesses.

3. The sponsor did not attend the hearing. This naturally caused the Tribunal member to enquire of the Applicant whether their marriage continued to exist. He responded and advised quite candidly that his marriage to the sponsor had ceased in or about October 2015 because of religious differences between her and himself and that the sponsor had left him and gone to live with her mother.

4. The Decision Record of the Tribunal stated that the main issue in the review was the continuing nature of the relationship between the Applicant and his sponsor and that relevantly cl.801.221(2)(c) required that at the time of the Tribunal’s decision the Applicant was the spouse of the sponsor as defined in s.5F and which, amongst other things, required a mutual commitment to a shared life as husband and wife to the exclusion of all others and that such relationship between them was genuine and continuing.

5. The Tribunal then noted that it had been informed by the Applicant that the marriage of his sponsor and himself was irretrievably over and that religious conflicts had led to the separation and breakdown of his marriage of some five years standing. Notwithstanding this, the Tribunal considered the matters required to be considered under reg.1.15A(3) and the full circumstances of the relationship between the Applicant and the sponsor, including the financial aspects of their relationship, which it found did not indicate financial pooling between them.

6. The Tribunal then went on to find from the information vouchsafed by the Applicant himself in the hearing before the Tribunal that he no longer met the definition of the spouse of his sponsor as defined by s.5F of the Act.

7. This cessation of the marriage between the Applicant and his sponsor led to the Tribunal affirming the Delegate’s decision not to grant the Applicant a Partner visa because the Applicant and the sponsor were no longer in a spousal relationship and the Applicant therefore could not satisfy cl.802.221(2)(c) and the decision of the Delegate was accordingly affirmed.

Ground of Attack on the Tribunal Decision in this Court

1. The Application filed in this Court on 15 February 2016 contained the following Ground:

   l. The Tribunal accepted my long term relationship with my partner yet the relationship broke down as a result of conflict of religion which lead to the separation and breakdown of the marriage of five years standing. Yet the issue of violence was not brought up and I do believe that the Tribunal failed to see the relevancy of domestic violence.

Consideration

1. This Ground in its terms accepts the breakdown of the Applicant’s marriage to his sponsor, but appears to complain that “the issue of violence” was not brought up at the Tribunal hearing and that the Tribunal failed to take into account an issue, namely that of “domestic violence”.

2. It is indeed the case that under cl.801.221(6) an applicant for a Partner visa may be found to have met the requirements of cl.801.221 despite not being the “spouse” of the relevant sponsor at the time of the decision provided that the Applicant under cl.801.221(6)(c)(i):

   … has suffered family violence committed by the sponsoring partner.

3. Regulation 1.23 of the Regulations defines when a person is taken to have suffered “family violence”.

4. However, the simple fact of the matter is that at no stage did the Applicant assert to the Tribunal that he suffered any form of domestic violence. This is confirmed by:

   a)the transcript of the Tribunal hearing on 28 January 2016 which was put into evidence;          

   b)the Applicant’s written submissions in this Court which stated that he had never raised the question of domestic violence with the Tribunal because such domestic violence did not happen and that he did not make a claim of family violence; and

   c)confirmed by the Applicant in his oral submissions at the hearing in this Court on 9 November 2016.

5. Further, even if the Applicant had alleged that the sponsor had committed family violence against him, he would pursuant to reg.1.23(9)(c) of the Regulations (which provides for the making of a “non-judicially determined claim of family violence”) have been required to present evidence by a statutory declaration as required by reg.1.24, setting out the allegations of violence in accordance with and as required by reg.1.25.

6. However, the Applicant had never presented or lodged any such statutory declaration or evidence in support of his Partner visa application.

Conclusion

1. The Tribunal was correct to affirm the Delegate’s decision in light of the admitted breakdown of the Applicant’s spousal relationship with his sponsor.

2. In my view the Applicant has failed to establish any jurisdictional error on the part of the Tribunal and the Application filed in this Court on 15 February 2016 is to be dismissed.

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

Associate: 

Date:  22 August 2017