El Jejieh v Minister for Home Affairs (No 2)

[2019] FCCA 840

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL JEJIEH v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 840

Catchwords:
MIGRATION – Administrative Appeals Tribunal – two section 375A certificates – section 376 certificate – no practical injustice – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 375A, 376, 476, 495, 496

Migration Regulations 1994 (Cth), reg.1.15A, cl.100.221 of Schedule 2

Cases cited:

Cabal v United Mexican States(No.3) (2000) 186 ALR 188

El Jejieh v Minister for Home Affairs & Anor [2019] FCCA 838

Applicant: SAMIH MOSTAFA EL JEJIEH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2002 of 2018

Judgment of: Judge Street

Hearing date: 2 April 2019

Date of Last Submission: 2 April 2019

Delivered at: Sydney

Delivered on: 18 April 2019

REPRESENTATION

Counsel for the Applicant: Mr D Godwin
By direct access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The Further Amended Application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2002 of 2018

SAMIH MOSTAFA EL JEJIEH

Applicant

And

MINISTER FOR HOME 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 Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 June 2018 affirming a decision of the delegate not to grant the applicant a Partner (Migrant) (Class BC) visa. 

2. The applicant is a national of Lebanon and lodged an application for a Partner (Provisional) (Class UF) subclass 309 visa and a Partner (Migrant) (Class BC subclass 100) visa on 23 October 2013 on the grounds of being in a spousal relationship with an Australian citizen who lodged a sponsorship in support of the application. The applicant was granted a Partner (Provisional) (Class UF) subclass 309 visa on 6 February 2015. The applicant entered Australia on 28 February 2015 as the holder of a subclass 309 Partner (Provisional) visa.

3. On 17 December 2015 the Department received information that the relationship between the applicant and sponsor had broken down. On 7 January 2016, the Department sent a letter inviting the applicant to comment in respect of information that the spousal or de facto relationship had ceased and invited an explanation as to the current circumstances and the reasons for breakdown in the relationship. The letter included an attachment that outlined the relevant legislation applicable to the assessment of the application for the Partner (Migrant) (Class BC) (Subclass 100) visa. The outline set out the criteria to be satisfied at the time of decision in cl 100.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which relevantly included the provisions concerning the significance of family violence having been suffered if the relationship had ceased. The provision also set out the criteria to be satisfied and included the definition of spouse in s 5F of the Migration Act, the requirements of reg 1.15A of the Regulations, and also included the special provisions as to family violence.   

4. The delegate found that the sponsor and the applicant did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required by s 5F(2)(b) of the Migration Act, and found the applicant did not meet the requirements of cl 100.221(2)(b) of Schedule 2 to the Regulations and accordingly, found the applicant did not meet the criteria for the grant of the visa. 

5. The applicant applied for review and on 30 November 2016, the applicant was invited to attend a hearing on 3 January 2017. Since that invitation, the hearing date was rescheduled by the Tribunal three times and was postponed on another occasion upon the request of the applicant. On 7 September 2017, the applicant was informed the Tribunal member was unable to hear the matter and a different member was appointed. By letter dated 31 October 2017, the applicant was invited to attend a hearing on 28 November 2017. The applicant appeared on that date to give evidence and present arguments of 28 November 2018.

6. The Tribunal in its reasons referred to the applicant having to meet the criteria set out in Part 100 of Schedule 2 to the Regulations. The Tribunal referred to the grounds on which the delegate had refused the grant of the visa and then referred to a certificate under s 375A of the Migration Act at page 212 of the Court Book that was issued referring to a Departmental file. The Tribunal in that regard, referred to showing the applicant that certificate at page 212 of the Court Book, which it said contained information regarding immigration processes and contained personal information of the sponsor. The applicant stated that he had no idea about the certificate. The Tribunal noted that it referred to giving the applicant an opportunity to put submissions, and also noted that the applicant had requested a copy of the recording of the hearing on 28 November 2017, which had been provided. The Tribunal expressly identified not placing any weight on the information the subject of the s 375A certificate at page 212 of the Court Book in respect of the Departmental file.

7. The Tribunal then referred to a notice from the Department revoking the certificate under s 375A of the Migration Act dated 26 June 2018 which identified particular folios at page 270 of the Court Book. The Tribunal also referred to reissuing the certificate at page 271 of the Court Book. The Tribunal noted that it had put no weight on the information provided in that certificate.

8. The Tribunal also referred to a s 375A certificate dated 22 June 2016 at page 211 of the Court Book referring to certain information, and the Tribunal noted it had put no weight on it as it was from an anonymous source.

9. The Tribunal also made express reference to the statutory declaration sworn by the sponsor relating to the bringing of the applicant to Australia when the 309 visa was an issue.

10. The Tribunal identified that the issue was whether there is a relationship as required under the statutory provisions. The Tribunal expressly referred to the requirements of cl 100.221 of Schedule 2 to the Regulations, as well as the definition of spouse in s 5F of the Migration Act and the requirements of reg 1.15A of the Regulations. 

11. The Tribunal referred to the applicant and the sponsor having married in Lebanon on 15 August 2013 and commencing to live together thereafter. The applicant and sponsor came to Australia on 28 February 2015. The Tribunal referred to the applicant’s evidence that they lived together for five to six months overall in both Lebanon and Australia. The Tribunal expressly referred to the evidence of the applicant about the degree of companionship and emotional support given by the applicant and specifically the question as to whether the applicant ever found companionship or emotional support in the sponsor. The applicant stated he may have in Lebanon but not in Australia.

12. It was in these circumstances that the Tribunal referred to the statutory requirements and found that the applicant and sponsor do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal found the relationship is not genuine and continuing. The Tribunal found the applicant and sponsor do not live together, that they live separately and apart on a permanent basis.  The Tribunal was not satisfied, that at the time of the decision, the parties were in a married relationship.

13. The Tribunal made a further finding that the applicant and sponsor had never been in a genuine spousal relationship. It was in these circumstances that the Tribunal, having found that because the parties were never in a genuine spousal relationship that it did not have to consider the issue of family violence and accordingly, affirmed the decision under review.

The grounds

1. The grounds in the further amended application are as follows:

   1. The department issued an invalid certificate under s 375A of the Migration Act 1958 which they revoked on the day that the Tribunal published its decision. The review was thereby affected as documents covered by the certificate (in particular page 193 of the Court Book) contained information which was material to the outcome of the review in that it supported the applicant's case that he had been in a genuine relationship with the sponsor prior to their separation.

   2. The department issued a certificate under s 376 of the Act on the day the Tribunal gave its decision. The applicant was not advised of the certificate or given the opportunity to seek the exercise by the Tribunal of its power under s 376(3)(b) of the Act to disclose to him the contents of the documents covered by the certificate

   3. The department issued a certificate under s 375A of the Act on 22 June 2016. The applicant was not told of the existence of the certificate. He was denied procedural fairness.

   4. The Tribunal failed to comply with s 360 of the Act:

   Particulars

   The delegate's decision did not contest that the applicant was in a genuine spousal relationship with the sponsor prior to their separation. The Tribunal found that they had never been in a spousal relationship. The applicant was not given the opportunity to give evidence and present arguments on the issue of whether he was in a genuine relationship prior to the separation.

Grounds 1 to 3

1. In relation to grounds 1 to 3, Mr Godwin of counsel, took the Court to the s 375A certificate dated 22 June 2016 at page 211 of the Court Book, which referred to the whole of the file OSF2013010580. Although the s 375A certificate was dated, the certificate included a printed name of the delegate with a particular position number which was not signed.

2. The Court was also taken to the undated s 375A certificate at page 212 of the Court Book that identified particular folios, referring to information regarding immigration processes and personal information of the sponsor. That s 375A certificate was signed by the delegate, but was undated.

3. There was a further document to which the Court was taken at page 270 of the Court Book. That document, dated 26 June 2018, revoked the s 375A certificate on the basis that the certificate was invalid as there were inadequate reasons for non-disclosure on public interest grounds. On a fair reading that is a reference to the s 375A certificate at page 212 of the Court Book that was not dated but referred to particular folios. This is because the s 375A certificate dated 22 June 2016 at page 211 of the Court Book identified reasons, that would be sufficient to support the non-disclosure on public interest grounds if the certificate were otherwise valid.

4. The Court was also taken to a certificate issued under s 376 of the Act that referred to particular portfolios not being disclosed on the grounds of section s 376(1)(b) of the Migration Act.

5. Mr Godwin of counsel submitted that the undated certificate identifying the particular folios at page 212 of the Court Book was invalid, given the want of reasons to support the requirements of the certificate under s 375A of the Act. The Court accepts the proposition that the certificate was invalid. The requirements of s 375A of the Act refer to applying to a document or information if the Minister has certified in writing that the disclosure would be contrary to public interest. 

6. The Macquarie Dictionary defines "certified" as follows:

   1. having, or proved by, a certificate

   2. guaranteed; reliably endorsed.

7. It was not suggested that there was any legislative form giving effect to the requirements of s 375A of the Act nor was it suggested that there was any particular provision of the Acts Interpretation Act1901 (Cth) or the Migration Act or the Legislation Act2003 (Cth) that assisted in determining the mandatory requirements required in respect of the relevant content being certified in writing.

8. Section 375A of the Migration Act is as follows:

   (1)  This section applies to a document or information if the Minister:

   (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

9. The first respondent submitted that the printed name was sufficient compliance with the requirement for writing on the s 375A certificate dated 22 June 2016. No signed certificate of that date was provided to the Court. Whilst there may be circumstances in which an electronic signature might meet the requirements of s 375A of the Act, the Court finds on its proper construction that the certification by the Minister or the delegate of s 375A of the Act required more than a printed name and accordingly, the certificate dated 22 June 2016 at page 211 of the Court Book is invalid, for want of a signature. This gives the ordinary meaning to the words certified as referred to above being proved by a certificate or reliably endorsed. This also gives meaning to the words in writing and the whole of the provision. Further, in relation to the certificate at page 211 of the Court Book that is unsigned, the Court notes that the reasoning of the learned French J, albeit in a different statutory context in Cabal v United Mexican States(No.3) (2000) 186 ALR 188 at [169] – [173], supports the proposition that there must be a signature placed on the document in order to be certified. I accept the first respondent's submission that the content claim of public interest immunity was one that otherwise did meet the requirements of s 375A of the Act. 

10. In relation to the undated certificate at page 212 of the Court Book concerning the identified particular folios, that certificate is clearly invalid for want of reasons supporting the disclosure being contrary to public interest. Further, the issue arises as to whether the certificate is invalid for want of a date. The certificate at page 212 of the Court Book in the present case identifies the name of the delegate, the delegate's position and bears the delegate's signature. On one view, that might be sufficient to meet the requirement of being "certified in writing."  However, given the powers of delegation identified in the Migration Act at s 496, that power of delegation expressly refers to “writing signed by him or her” in respect of the power of delegation.

11. Section 495 of the Act also refers to the power of the Minister to approve forms used. In the present case no evidence was adduced as to the date that the Minister exercised the power under s 495 of the Act. Given the importance of the existence of a valid delegation in respect of any exercise of power by a delegate under s 496 of the Act, the Court finds on its proper construction that the requirement to be certified in writing referred to in s 375A of the Act necessarily required a date of the certification. The Court considers that this also gives effect to the ordinary meaning of the words to prove by a certificate or to reliably endorse as well as meaning to the words “in writing”. Otherwise the validity of the power of delegation and the exercise of that delegated power on a particular date could not otherwise be ascertained.  Accordingly, the undated certificate at page 212 of the Court Book is also invalid for want of a date. 

12. Mr Godwin did seek access to the unredacted documents, the subject of the certificates however the Court in a separate decision El Jejieh v Minister for Home Affairs & Anor [2019] FCCA 838 upheld the claim for public interest immunity by reason of an application of the informant rule. Mr Godwin submitted that the material supported an inference identifying the informant. The Court did not accept that submission supported there being no continuing public interest immunity as the Court did not find that the identity of the informant had been made public and that the submission advanced was one based on unsupported inference and/or speculation.

13. I accept that the s 376 certificate at page 271 of the Court Book on its face is valid. Mr Godwin of counsel on behalf of the applicant, referred to what occurred in the transcript that was tendered at the hearing before the Tribunal in respect of disclosure of the certificate. In that regard, the Tribunal referred to the issue of a certificate under s 375A of the MigrationAct. The content of the certificate was expressly referred to in a manner that clearly identifies the certificate at page 212 of the Court Book being the undated certificate identifying particular folios. That is because of the particular content of information identified in subparagraphs (a) and (b) matching the content of the certificate at page 212 of the Court Book. 

14. The Tribunal expressly invited any submissions the applicant wanted to make about the validity of the certificate and the Tribunal gave the applicant the opportunity to make any submissions and write to the Tribunal after the hearing. Mr Godwin of counsel submitted that the invalid certificates contained information which was material to the outcome of the review. In that regard, Mr Godwin submitted that the information was material because it supported the applicant and sponsor having previously been in a relationship contrary to the finding made by the Tribunal that the parties were never in a genuine relationship, a finding which had not been made by the delegate.

15. Mr Godwin referred to the folio in which the sponsor claimed the applicant was threatening the sponsor to come back to him.  Mr Godwin submitted that the observation by the Tribunal that it placed no weight on the documents the subject of the certificate at page 212 of the Court Book did not mean that there was not a breach of the procedural fairness requirements. In that regard, Mr Godwin referred to the revocation of the certificate at page 212 of the Court Book on the same day that the Tribunal delivered its reasons being 26 June 2018. Mr Godwin submitted that the applicant had been adversely affected by reason of the loss of the opportunity to rely upon favourable information the subject of the documents in the certificate, but advanced the alleged genuineness of the relationship between the applicant and the sponsor. 

16. A schedule was handed to the Court and marked MFI1 in relation to the documents in respect of which Mr Godwin contended that the applicant had suffered a practical injustice by reason of the absence of access to the documents the subject of the invalid certificate. The documents referred to, emanate from information provided by either the applicant or the sponsor.  It is apparent from the material in the Court Book and in particular, a letter dated 3 November 2013, from the sponsor who asserted that they had a genuine committed relationship with the visa applicant whilst in Lebanon, including the confirmation of their marriage and their emotional connection with each other. Further, the letter asserted that the applicant and sponsor were in a devoted relationship and referred to the benefit of that alleged relationship and the understanding of each other.

1. In circumstances where the Tribunal had that information before it and the information provided in the hearing by the applicant concerning the relationship both in Lebanon and in Australia, the Court does not accept that the applicant has suffered any practical injustice in the present case by reason of the failure to disclose to the applicant the documents the subject of the certificate for which no claim for public interest immunity is maintained. It is apparent that the applicant referred to the attempts by the applicant to maintain the relationship and contrary to the applicant’s desire, the sponsor wanted to end the relationship. 

2. The Court accepts there may be circumstances in which there is material information that is not adverse that can give rise to a practical injustice. None of the documents the subject of the certificates in the present case are the subject of any submission as to being adverse information. Rather, Mr Godwin’s submission is that the applicant lost the benefit of beneficial information in support of the relationship. Given the content of the transcript and the issues raised with the applicant, including whether the applicant ever got companionship and emotional support from his wife and the answer “No.  Maybe in Lebanon.  Yeah.  Here, no”, taken together with the limited period of two and a half months living together in Lebanon, as well as the communications between the applicant and the sponsor in which the applicant was being threatened by the sponsor with information being given to the Department to take away the applicant’s visa, the applicant wanting a more stable life, and that the total length of time they lived together, both in Lebanon and Australia, was five to six months, the Court is not satisfied that the non-disclosure of the invalid certificate at page 211 of the Court Book, and the documents the subject of the certificate at page 211 of the Court Book did not give rise to any practical injustice in the conduct of the review by the applicant. 

3. The Court has taken into account the limited disclosure of only one certificate and the Court has also taken into account the failure to disclose the certificate under s 376, and the documents the subject of that certificate. The Court has found the s 376 certificate was valid, and that the documents the subject of that certificate had been the subject of a successful claim for public interest immunity in circumstances where the Tribunal expressly identified it had placed no weight on the documents the subject of the certificates, and where the documents had otherwise been put into evidence, the Court has considered whether the information not disclosed to the applicant gave rise to an impractical injustice.

4. For the reasons already given, no such practical injustice occurred in the circumstances of the present case. Nor did the invalidity of the certificates give rise to any practical injustice in the circumstances of the present case. This is because the documents the subject of this evidence cannot be said to be material in the circumstances of the present case to the determination of the review by the Tribunal. No jurisdictional error as alleged in grounds 1 to 3 are made out.

Ground 4

1. In relation to ground 4, Mr Godwin of counsel drew the Court’s attention to the reasoning of the delegate that did not address whether there was a genuine relationship at the time of application. It is however, apparent from the material provided in the Court Book that the applicant was on notice of the criteria that had to be made out by reason of a letter dated 7 January 2016 at page 144 of the Court Book. That letter invited the applicant to comment on information received by the Department as to a change in relationship status. The letter outlined that such information is “likely to result in the refusal of your application”.

2. Further, it is apparent, on the face of the transcript of the Tribunal hearing that the Tribunal explored with the applicant whether or not the applicant met the relevant criteria in the context of the relationship criteria under the Regulations, both in Lebanon and in Australia. On a fair reading of the transcript of the Tribunal hearing as a whole, the Court was satisfied that the applicant was on notice of the issue as to whether there was a genuine relationship at the time of application. The Court’s reasoning is supported by the questioning at line 15 on page 29 of the Tribunal hearing transcript as to whether the applicant ever had any companionship or emotional support from his wife to which the applicant responded: 

   “No.  Maybe in Lebanon.  Here, yeah, no.”

3. That same issue was re-agitated at page 34 of the transcript of the Tribunal hearing, albeit the applicant in that regard in referring to the degree of companionship and emotional support responded:

   “Lebanon was good but here no. After one month like everything is gone.”

4. The Court accepts the first respondent's submission that it ought to have been plain to the applicant having regard to the matter in which the Tribunal conducted the hearing, and the questions the Tribunal asked that the Tribunal was actively considering the question of whether the relationship between the applicant and the spouse was even a spousal relationship under cl 100.211(2) of Schedule 2 of the Regulations. The nature of the questioning engaged in by the Tribunal ensured the applicant was, in this case, invited to give evidence and present arguments on the issues arising in relation to the decision under review. 

5. The Court is satisfied the applicant had a real and meaningful opportunity to give evidence and present arguments in relation to the issue of whether the relationship was even genuine. No jurisdictional error as alleged in ground 4 is made out. 

Conclusion

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

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 April 2019