El Chaabi v Minister for Immigration
[2018] FCCA 3042
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL CHAABI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3042 |
| Catchwords: MIGRATION – Partner (Temporary) (Class UK) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to give proper, genuine and realistic consideration to the claims – whether the Tribunal erred in failing to find the relationship was genuine – whether the Tribunal erred by not finding compelling reasons to waive criteria – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), cl.820 of sch.2, criteria 3001 of sch.3, criteria 4004, 4020 of sch.4 |
| Cases cited: Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 |
| Applicant: | ALI EL CHAABI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1920 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the First Respondent: | Mr M J Smith |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1920 of 2017
| ALI EL CHAABI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 30 May 2017. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa under s.65 of the Migration Act 1958 (Cth).
Background
The applicant is a national of Lebanon, who arrived in Australia on 31 March 2008 holding a subclass TU 573 visa. Following the expiry of this visa, he applied for a provisional skilled visa and protection visa in 2009 and 2012 respectively which were refused.
On 13 June 2013 the applicant applied for a partner visa on the basis of his de facto relationship with his sponsor. The applicant and his sponsor claimed to have met in 2009, moving in together in November of that year. The application was for both a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The criteria for the grant of the visa are set out in cl.820 of sch.2 of the Migration Regulations 1994 (Cth).
On 10 August 2015 a delegate of the Minister refused to grant the applicant a visa as he did not satisfy criterion 3001 of sch.3 to the Regulations as he did not hold a substantive visa at the time of his application. At the time of the delegate’s decision the applicant also had an outstanding debt to the Commonwealth and therefore did not meet Public Interest Criterion 4004. Sub-cl.820.211(2)(d) provides that the first of these criteria may be waived if there are compelling reasons.
In order to be compelling, the reasons “must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived”: Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 at [24]. The delegate was not satisfied that there were compelling reasons and held that criterion 3001 could not be waived and refused the application.
The applicant applied to the Tribunal for review of the delegate’s decision and he attended a hearing before the Tribunal on 19 November 2015. On 17 December 2015 the Tribunal affirmed the decision under review.
The applicant made application to this Court for judicial review of that decision. On 27 February 2017, by consent, orders were made by Judge Driver of this Court remitting the matter back to the Tribunal for review of its earlier decision.
On 29 May 2017 the applicant attended a hearing before the Tribunal and on 30 May 2017, the Tribunal affirmed the decision under review. It is this decision which is the subject of these proceedings.
Tribunal’s decision
The Tribunal first considered whether the applicant met PIC 4004. It noted that it had allowed the applicant time to provide evidence of having paid his debt to the Commonwealth or having made arrangements to do so. Ultimately, the Tribunal made no finding about the issue because, although the applicant had told it that he was making arrangements to pay the debt, he had not provided any evidence of actually having paid the debt.
The Tribunal next found that the applicant did not meet criterion 3001 because he had not made the application for the visa within 28 days of the expiry of his last substantive visa, the relevant date being September 2009. Clause 820.211(d)(ii) allows for the waiver of that criterion if there are compelling reasons to do so, which the Tribunal then turned to consider.
The Tribunal considered the circumstances relied on by the applicant. The first of these was the existence of a genuine relationship with his sponsor. The Tribunal did not accept that there was a genuine relationship between the applicant and his sponsor because the sponsor had previously sponsored the applicant’s brother for a visa in November 2012. The applicant failed to disclose that information in his first application. The applicant’s evidence however, was that his relationship with the sponsor had started in 2009 and her sponsorship of his brother had occurred whilst they were separated for six months and that she had done so out of spite. The Tribunal found the applicant’s explanation for this unpersuasive. However, the Tribunal found that even if there were a genuine relationship, that fact would not have been sufficient to amount to compelling reasons for the waiver. These findings are the subject of an issue in these proceedings and will be examined in more detail later in these reasons.
The Tribunal considered the financial and emotional support the applicant provided his family including the sponsor’s children and the poor security situation in Lebanon. The Tribunal accepted that if the applicant and sponsor’s relationship was genuine then the applicant may have a connection to the sponsor’s children. However, the Tribunal noted that the children’s biological father was actively involved in their life and that they had a good relationship with both of their parents. It did not consider that emotional support can only be provided if the parties are living together and noted that if the applicant was to leave the country that he could still maintain contact with the sponsor’s children. The Tribunal was not satisfied that the relationship between the applicant and the sponsor’s children was a compelling reason for a waiver of the criterion.
In considering the applicant’s claims concerning the poor security situation in Lebanon, the Tribunal had regard to the following claims made by the applicant: the sponsor and her children were not of the same religion so he could not take them to Lebanon; the sponsor’s evidence that she could not live in Lebanon; the applicant’s previous problems with Hezbollah and the “generally poor situation and lack of connections”. There was no evidence before the Tribunal that the applicant and his sponsor had made enquiries concerning travel to Lebanon, schooling in Lebanon for the children, employment opportunities or residential arrangements. The Tribunal was not satisfied that the sponsor would travel to Lebanon and found that if that was the case, they could communicate electronically as frequently as they wished during any separation, even a lengthy one.
The Tribunal then considered the applicant’s claims concerning Hezbollah. The applicant provided scant detail in support of this claim and did not provide any evidence of his “problems” with Hezbollah and the effect of these on him. The Tribunal found the claims concerning the poor situation and lack of connections in Lebanon to be “vague and uninformative” and did not relate to the applicant’s circumstances but were generalised claims about the country. For these reasons, the Tribunal formed the view that these matters did not give rise to compelling reasons for a waiver of the criterion.
Finally, the Tribunal considered whether the applicant satisfied PIC 4020 and whether it should be waived, despite at [8] stating PIC 4020 was irrelevant[1]. It found that the fact that the sponsor had answered “no” to question 66 in the visa application form (asking whether she had previously sponsored another person for a Partner or Prospective Partner visa) was false or misleading in a material particular and so PIC 4020 was not met. The Tribunal found that there were no compelling reasons to waive that provision.
[1] Clause 820.226 of the Regulations states that PIC 4020 must be met.
For those reasons the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a partner visa.
Consideration
There is one ground in this application, namely, that the Tribunal failed to give proper, genuine and realistic consideration to the merit of certain claims made by the applicant. The applicant, who was represented, did not comply with the Court’s orders to file written submissions in support of his application and the arguments made by the applicant’s Counsel had little, if anything to do with the ground as framed in the application.
There were two arguments pressed at the hearing: first, that the Tribunal had not given proper genuine and realistic consideration to the applicant’s explanation of the fact that his sponsor had sponsored his brother for a partner visa at a time she was apparently in a genuine relationship with the applicant; and secondly, that the Tribunal erred by failing to find that the existence of a genuine relationship provided compelling reasons for the waiver of the relevant criteria. The grounds were true alternatives because the Tribunal found that the applicant and his sponsor had falsified their evidence and that there was no genuine relationship: [25]. That means that the applicant must succeed on both grounds in order to obtain the relief he seeks.
For reasons which follow, he will succeed on neither ground as neither has any merit. Both grounds can be dealt with very briefly.
In the visa application form, question 55 asked: “What is your current relationship with your sponsor?” The applicant ticked the box stating “In a de facto relationship” and in the box next to the sub-statement “Date de facto relationship began” he wrote “5/11/2009”.
Question 66 of the form asked “Has your fiancé(e) or partner ever sponsored another person for a Partner or Prospective Marriage visa?”. The applicant placed a tick in the box next to the word “No”.
The sponsor also completed a form for the purposes of the applicant’s visa application. Question 28 of that form asked “Have you previously sponsored/nominated a spouse, de facto partner, prospective spouse (fiancé(e)) or interdependent partner?”. The sponsor ticked the box next to the word “No” in respect of that question.
In statutory declarations lodged with the visa application, both the applicant and his sponsor stated that their relationship started on 5 November 2009, having met in September 2009, and made no mention of any break in that relationship.
On 23 July 2014 the applicant’s migration agent wrote to the Department enclosing “extensive evidence dating back to July 2009 as evidence of ongoing de-facto relationship since that period.”
By letter dated 30 July 2014 an officer of the Department informed the applicant that there was information before it that his sponsor had sponsored somebody else for a partner visa after 5 November 2009. That visa application had been lodged offshore on 20 November 2012 and included photos and information that the couple were engaged. The applicant and his sponsor were invited to comment on that information within 28 days.
By email dated 1 October 2014 the applicant’s migration agent responded to the Department’s invitation to comment and wrote that the applicant’s relationship with the sponsor had “been ongoing, except for a 6 month period between August 2012 until December 2012, when the couple had a falling out” and the sponsor intended on sponsoring another person whom she had met.
In making its decision, the Tribunal found the applicant and the sponsor’s evidence problematic and rejected it. It did not do so out of hand. It did so having regard to, and rejecting in turn, each of the explanations given by the applicant for what was, on its face, a pellucid inconsistency between his evidence and objectively ascertained and unrefuted facts. It did so for reasons explained by it at [21]-[23]:
21. The Tribunal finds that evidence problematic. According to the primary decision record, a copy of which the applicant presented to the Tribunal, the sponsor previously sponsored the applicant’s brother for a visa in November 2012 and that application was refused in February 2013. In his oral evidence to the first Tribunal the applicant stated that this sponsorship occurred over the six months period when he and the sponsor were separated and he told the present Tribunal that the sponsor did it out of spite and without his knowledge and later withdrew the sponsorship. The Tribunal finds that explanation unpersuasive. If the information in relation to that sponsorship was true, a visa sponsorship suggests that the sponsor and the applicant’s brother met, developed a relationship, formed a commitment to each other and made a decision for the sponsor to go through with the sponsorship. All of that would have taken time. If the sponsorship was made in November 2012, the sponsor’s relationship with the applicant’s brother must have started before that date and the breakdown of the applicant’s relationship with the sponsor would have lasted longer than the few months to which he now refers.
22. Significantly, the applicant’s evidence to the first and present Tribunal is that the sponsor sponsored his brother when his and the sponsor’s relationship was in trouble in order to make him envious. If that is the case, that casts serious concerns about the nature of that relationship and the parties’ credibility. An application and a sponsorship for a Partner visa would have required the parties to state that they are in a genuine and committed relationship. The applicant’s evidence suggests that the sponsor sponsored his brother out of spite and if there was never a committed spousal relationship between the sponsor and the applicant’s brother. That evidence indicates that the sponsor is willing to provide untruthful information to Immigration to assist someone with the visa application. That is, the applicant’s evidence is that the sponsor never had a committed relationship with his brother and arranged a sponsorship merely out of spite, yet she would have claimed the existence of such a relationship when sponsoring the brother for a Partner visa. The sponsor’s willingness to provide untruthful information to assist with the visa (if the applicant’s present evidence is to be believed) casts serious concerns about the veracity of the claims made in the present application and the claimed genuine relationship between the parties.
23. The Tribunal considers it problematic that the applicant failed to disclose that information in his initial application. The applicant provided a declaration sworn on 3 April 2013 in which he claims his relationship with the sponsor started in November 2009. The applicant makes no mention of any break-up of the relationship which must have been sufficiently serious for the sponsor to form a relationship with another person and to sponsor that person for a visa, whether it was a genuine relationship or a fabricated one, as the applicant now claims. The applicant claims in the various documents submitted with his application that his relationship with the sponsor has been ongoing since 2009, he does not refer to the break up of the relationship. The applicant provided with his application the sponsorship form 40SP in which the sponsor refers to her previous relationship with Mr [T] but does not refer to any other fiancé. In his own form 47SP application the applicant also refers to the sponsor’s previous marriage to Mr [T] but not to any other relationship and he expressly stated in response to question 66 that the sponsor had not sponsored another person for a Partner or Prospective Marriage visa. The Tribunal has formed the view that the applicant deliberately withheld the information about his brother’s sponsorship in his own visa application and deliberately sought to falsify the evidence about the length and nature of his relationship with the sponsor by making no reference to the sponsor’s relationship with his brother. The Tribunal has formed the view that both the applicant and the sponsor are not persons of credibility and that they are willing to provide untruthful information if they believe it would assist them to achieve a particular migration outcome.
(Names omitted)
The applicant’s argument focussed on [21] and [22]. As I understand the argument, and it is not easy to understand, it is that the Tribunal showed that it had not properly considered the applicant’s explanations by the fact that it found that the applicant’s relationship with the sponsor might not be genuine because the sponsor’s relationship with his brother was not genuine.
Counsel for the applicant denounced any suggestion that the Tribunal’s reasoning was illogical or legally unreasonable and summarised the argument as follows[2]:
... The tribunal proceeds as if a spiteful lie about the previous relationship necessarily undermines the claims with respect to the present relationship.
[2] Transcript p.9 line 13.
That argument misstates the Tribunal’s reasons. In fact, the Tribunal did not act on the basis that lying “necessarily” established anything, rather having considered each of the applicant’s contentions it found that both the applicant and the sponsor had lied. It gave ample reasoning to explain why it reached that conclusion. It was not contested that it is open to infer that a person who lies about one relationship in a visa application has also lied about another relationship in another visa application. That is particularly so when a second lie was added to the first lie by the concealment of the first lie in the second visa application.
It is unnecessary to examine in any detail what is meant by “proper, genuine and realistic” consideration. Caution is necessary when reviewing an issue of “proper, genuine and realistic consideration”, as it may invite the Court to instead undertake an impermissible merits review: SZQGC v Minister for Immigration & Citizenship [2012] FCA 598 at [32]. The question whether such consideration has been given requires focus on the question of whether an applicant has established that the Tribunal did not engage in an active intellectual process in respect of the matter in issue: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [35].
The reasoning set out at [21] - [23] of the Tribunal’s statement of reasons displays beyond any question that the Tribunal did engage in an active intellectual process in respect of the applicant’s explanation for the sponsor’s previous sponsorship of his brother. The first ground is rejected.
As I have observed, the second ground does not arise if the first ground is not made out. For that reason, the application must be dismissed.
It is convenient, in light of that, to deal very briefly with the second ground. The second argument focussed on [26] of the Tribunal’s reasons and, in particular, the following statement:
... Accordingly, simply the fact that the parties in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria…
Again, this argument did not reflect the ground in the application. Counsel for the applicant attempted to shoehorn it into that ground by contending that this statement led the Tribunal not to have “regard to whether the mere fact of a genuine relationship is a compelling reason”[3]. He argued that that question was a matter that had to be considered because “properly understood, the phrase “compelling reasons” does necessarily embrace - does, of itself, embrace a genuine relationship”[4]. The only real support for this contention was the further contention that “as a matter of human nature … it is a compelling reason for that relationship not to be interrupted by an offshore application”[5].
[3] Transcript, p.13 lines 8-9.
[4] Transcript, p.13 lines 10-11.
[5] Transcript p.17 lines 28-29.
In the applicant’s circumstances, it was a requirement for the grant of a Class UK Partner visa that the applicant be in a genuine relationship with the sponsor: sub-cls.820.211(2)(a) and (c). The criteria referred to in sub-cl.820.211(2)(d)(ii) also had to be satisfied unless there were compelling reasons for not applying them. If it were the case, as the applicant argues, that satisfaction by the applicant of one of the primary criteria was to constitute, without more, compelling reasons for not applying other criteria, there would be no utility in requiring compliance with those criteria in the first place: see, in another context, Minister for Immigration & Border Protection v Sandhu [2016] FCA 130 at [55]. That alone is sufficient to dispose of this argument.
Conclusion
For the above reasons, I am not satisfied that there is any jurisdictional error in the Tribunal’s decision and the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 November 2018
4
3