El Mohamad v Minister for Immigration & Anor
[2007] FMCA 345
•6 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL MOHAMAD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 345 |
| MIGRATION – MRT – Judicial review – Spouse Visa – domestic violence – whether genuine spousal relationship within the meaning of regulation 1.15A must exist at some time. WORDS & PHRASES – “Relationship” – migration Regulations – spouse visa – term to be interpreted by reference to the definition of “spouse” in the context of the regulations in which it appears. |
| Migration Regulations 1994, regs 1.15A, 801.221, 820.111 |
| Guven v The Minister for Immigration [2006] FMCA 311 Zaouk v The Minister for Immigration [2006] FMCA 1607 Collins v Minister for Immigration [2003] FMCA 571 Tang v Minister for Immigration [2006] FMCA 60 Ho v Ministerfor Immigration [2006] FMCA 1285 Shaikh v The Minister for Immigration and Multicultural Affairs [2005] FCAFC 174 Sevim v The Minister for Immigration and Multicultural Affairs [2006] FCA 1567 Nouv v The Minister for Immigration and Multicultural Affairs [2006] FCA 1474 |
| Applicant: | MOUNIRA EL MOHAMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1154 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 30 January 2007 |
| Date of Last Submission: | 30 January 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the First and Second Respondents: | Mr Mosley |
| Solicitors for the First and Second Respondents: | Australian Government Solicitors |
ORDERS
The application filed 14 September 2006 be dismissed.
The applicant pay the respondent’s costs fixed at $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1154 of 2006
| EL MOHAMAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Lebanese woman born on 3 January 1969.
On 8 October 2001, the applicant applied for a Class TO (prospective marriage) (temporary) visa on the basis of a proposed marriage to her first cousin who is an Australian citizen.
Background
The applicant’s first cousin was born in Lebanon on 10 March 1972 and had become an Australian citizen on 30 August 2001.
On 20 March 2002, the application for the sub-class 300 visa was granted and the applicant came to Australia on 5 May 2002. The applicant and her cousin (the sponsor) were married on 16 May 2002.
On 9 August 2002, the applicant applied for a class UK (partner) (temporary) visa and a (partner resident) (Class BS) visa on the basis of her marriage to the sponsor. In the application form, the applicant stated that her sponsor (and now husband) had not previously been married or been involved in a de facto relationship nor had any children. She was granted a visa.
In June 2005, the Department received anonymous information alleging that the relationship between the parties was contrived and that the sponsor in fact lived with another woman, Ms O, to whom he had four children and that the applicant was in a relationship with another man in Lebanon.
The Department conducted a home visit on 15 September 2005 and interviewed the parties on 19 September 2005. On 24 October 2005, the applicant’s representative advised the Department that the applicant was a victim of domestic violence perpetrated by the sponsor and sought that the visa be granted on the basis of the relevant provisions relating to domestic violence.
On 13 February 2006, the Department refused to grant the permanent visa to the applicant on the basis that the applicant and the sponsor had never been in a ‘spousal relationship’ within the meaning of the regulations.
The applicant applied to the Migration Review Tribunal (‘the tribunal’) on 8 March 2006 for a review of this decision. On
16 May 2006, the tribunal refused the application.
The regulations
The relevant parts of sub-clause 80.221 are as follows:
801.22 Criteria to be satisfied at time of decision
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored…
…
(c) the applicant is the spouse of the sponsoring spouse; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
(5) An applicant meets the requirements of this subclause if the applicant:
…
(c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died; and
(6) An applicant meets the requirements of this subclause if:
…
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and…[the applicant]
(c) has suffered domestic violence committed by the sponsoring spouse;
The term “spouse” is defined in Regulation 1.15A as follows:
1.15A Spouse
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A)Persons are in a married relationship if:
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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.
…
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
Ground 1
The Tribunal concluded that a relationship in the nature of a spousal relationship within definition of Reg 1.15A was required before a visa could issue, even if it were based upon the domestic violence provisions. The Tribunal said:
In Guven v Minister for Immigration and Anor [2006] FMCA 311 (26 March 2006) the Court heard that the Tribunal was only required to make findings in relation to a domestic violence claim where it was first satisfied that a spousal relationship existed between the parties.
The Tribunal applies Guven and will first determine whether a genuine and continuing spouse relationship existed between the parties, The Tribunal will determine whether a spousal relationship existed at some time before the review applicant claims she first suffered domestic violence. If the Tribunal finds that the spouse relationship what genuine and continuing at the time the review applicant claims to have suffered domestic violence, then and only then will it assess whether the evidence provided by the review applicant satisfies the domestic violence provisions in division 1.5 of the regulations.
The applicant takes issue at the correctness of the decision in Guvan v The Minister for Immigration [2006] FMCA 311. In that case Hartnett FM said:
24. … the Tribunal found the visa applicant was not the spouse of the sponsoring spouse within the meaning of Regulation 1.15A, as was required by paragraphs 100.221(4)(b) and 100.221(2)(b) of Schedule 2 to the Regulations. The Tribunal noted that only where it found that such a relationship existed - that is, a spousal relationship - was it required to make a further finding in relation to claims of domestic violence.
25. On the evidence before it, it was open to the Tribunal to make such a finding.
26. I do not find an error in the Tribunal's construction of paragraph 100.221(4)(b), nor do I find that were there such error, it could have materially affected the Tribunal's decision. As indicated earlier in these reasons, the Tribunal made alternate findings which provided an independent basis for the Tribunal's rejection of the applicant's claims. Any error, therefore, in respect to the Tribunal's construction of paragraph 100.221(4)(b) could not affect the outcome of this application.
The question was answered differently in Zaouk v The Minister for Immigration [2006] FMCA 1607 where Scarlett FM, with respect to a comparable provision, said:
38. What I find persuasive in the argument put forward on behalf of the Applicant is that it appears that the term “sponsoring spouse” is given its own definition for the purposes of Subclass 820 in 820.211:
820.1.1INTERPRETATION
820.111.1In this Part:
Sponsoring spouse means:
(a) for an applicant who is, or was, the holder of a prospective marriage (temporary) visa – the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for that visa as the person whom the applicant intended to marry after entry into Australia; or
39. The definition is complete in itself. There is no need to import any other material into the definition for it to make sense. In my view, the Court should follow the ordinary English meaning of the words. If it had been intended to import the criteria set out in Regulation 1.15A into the definition, then either a reference would have been made to the regulation or the identical wording to Regulation 1.15A would have been used.
40. I am satisfied that the Applicant’s first ground succeeds. The Tribunal applied a wrong test to the meaning of the word ‘relationship’ in cl 820.211(8)(c) of the Migration Regulations. The Tribunal was not obliged to apply to that word the test in reg 1.15A.
In Collins v Minister for Immigration [2003] FMCA 571 McInnis FM also considered the provision stating:
42. It is not necessary for me to then further consider the matter of domestic violence as that no doubt may be the subject of further consideration by the MRT when the matter is remitted for further consideration. The determination of whether there is a genuine spousal relationship however in my view as a matter of law is properly to be considered by the MRT as a primary issue. So that there is no misunderstanding I did not otherwise accept the submissions by the Applicant but having made an adverse finding in relation to that matter it is still necessary for the MRT to consider the evidence of alleged domestic violence for the purposes of the regulations. My reading of sub-regulation 8 is that the clear inference and basis upon which that regulation is to be applied is that applies to the relationship which at least at one point could be regarded as a genuine spousal relationship. Otherwise the purpose and intent of the regulation and its meaning on a proper reading would make little sense particularly in circumstances where there may be a finding that there has never been a genuine spousal relationship and a tribunal or delegate then be required, in applying the regulations, to consider amongst other things the issue of domestic violence which would only be a saving grace in circumstances where the genuine spousal relationship had already been established.
In Tang v The Minister for Immigration [2006] FMCA 60, Connolly FM said:
‘The Tribunal was not required to consider domestic violence under 820.211(8)(d) (Migration Regulations) unless it was satisfied of the existence of the necessary relationship at one point in time. There is no error disclosed.’
As can be seen from the above references three Federal Magistrates have concluded that a relationship as defined by the regulations is required as a pre‑condition.
In Ho v The Minister for Immigration [2006] FMCA 1285
FM Phipps considered the use of the word ‘spouse’ with respect to a sub-class A20 visas stating:
[26] The relevant regulations require the Tribunal to determine whether the applicant was the spouse of the nominator, as that is defined in r 1.15A, at the time of decision. The applicant's first argument is, in effect, that the Tribunal must accept the Minister's decision on the subclass 820 visa as correct. If the argument is correct it means that the Tribunal, no matter what the evidence before it is, must accept that at time of decision for the subclass 820 visa the applicant met the requirements for spouse in regulation 1.15A.
[27] This requirement is not contained in regulation 801 setting out the requirements for a subclass 801 visa. If the applicant's argument is correct then it must be a requirement by implication. A requirement is that the applicant is the holder of a subclass 820 visa. It is a long step to imply a requirement that the Tribunal must accept that the requirements of regulation 1.15A were met at the time that visa was granted.
[28] The Tribunal must consider the requirements of regulation 1.15A. It must consider whether they are satisfied at the time of decision. Necessarily that involves looking at the history of the relationship between the applicant and the nominator. Usually that will require an understanding of the relationship at the time of and before the grant of the subclass 820 visa. The Tribunal may have, and often will have, different and additional evidence bearing on the parties’ relationship at the time of the grant of the subclass 820 visa. It must make its own assessment of this evidence. To say that it must accept as correct a previous decision based on different evidence is inconsistent with this requirement.
Whilst I was referred to Shaikh v The Minister for Immigration [2005] FCAFC 174 the ultimate decision turned on other issues. The Full Court did not remark positively or negatively on this aspect of the case.
In Sevim v The Ministerfor Immigration [2001] FCA 1597 Gray J concluded:
67. It appears from the Tribunal's reasons for decision that it also considered this issue in the context of its determination of the question whether the applicant should have been granted the subclass 820 visa. In so doing, the Tribunal acted outside its powers. For the reasons I have already expressed, the Tribunal had no jurisdiction to review a decision to grant a visa. On no view could an error of fact on the part of the delegate of the Minister who made the decision to grant the subclass 820 visa be regarded as bringing about the result that the decision was a nullity. The question of the validity of the marriage was, however, relevant to the task of the Tribunal in reviewing the decision to refuse to grant the subclass 801 visa. The criterion found in cl 801.221(2)(c) in Pt 801 of Sch 2 to the Migration Act required that the Tribunal consider whether the applicant was the spouse of the nominating spouse, even if only as a step to considering whether the criterion in clause 801.221(6)(b) was met, namely that the relationship between the applicant and the nominating spouse had ceased. The Tribunal therefore again considered the right question in the wrong context and for the wrong purpose.
Most recently in Nouv v The Minister for Immigration 2006 FCA 1474 Heerey J said:
12. The appellant’s argument involved two interrelated points. One of the requirements for the permanent visa is that the applicant is the holder of a provisional visa. Therefore, it was said, although the Tribunal had to consider other criteria as at the time of its decision, it should not have ‘re-agitated’ the issue whether at the time of the grant of the provisional visa the criteria for the grant of that visa were or were not satisfied. In effect, the Tribunal should have proceeded on the basis that when the provisional visa was granted the appellant was a ‘spouse’ of the sponsoring spouse, that is to say they were in a ‘married relationship’ as defined in reg 1.15A. The Tribunal failed to identify the point in time at which the married relationship had to exist.
13. It seemed implicit in counsel’s argument that the grant of the provisional visa created some kind of presumption and that the Tribunal could only refuse the permanent visa if it was satisfied that what was a genuine married relationship had ceased by the time of the death of the sponsoring spouse.
14. As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28], the Tribunal may have, and often will have, different and additional evidence bearing on the parties’ relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence.’
The question ultimately depends upon the meaning of the phrase ‘the relationship’ that appears in reg.801.221(6)(b). Taken in context the clause requires the decision maker to consider whether the requirements of sub-cl.(2) would have been satisfied, except that ‘the relationship’ has ceased. An essential requirement of sub-cl.(2) is that the applicant is (or was at a previous time) the ‘spouse’ of the ‘sponsoring spouse’: see 802(2)(2)(c).
The reference to ‘the relationship’ in sub-cl.(6)(b) can not be read in isolation. A relationship is simply a connection or particular connection: see The Macquarie Dictionary (3rd ed.) at p1596. The terms must be read in context. The ‘relationship’ to which the clause is addressed must be the type of relationship referred to in the earlier sub-clauses. That is, the relationship of a ‘spouse’. The term ‘spouse’ is given an extensive definition in reg.1.15A, from which the type of relationship becomes clear.
Whilst the term ‘sponsoring spouse’ may have a specific definition for the purpose of the regulations (as set out in reg 820.111), the term ‘sponsoring spouse’ must be read as a ‘spouse’ of a particular type: that is, one who satisfies the further definition of a ‘sponsoring spouse’. It is the term ‘relationship’ that must be considered here, and the nature of the relationship that is referred to in the context of the clause must be a relationship of the type set out in the earlier sub-clause.
To hold otherwise would mean that a conspiracy to obtain a visa involving contract to be married would be sufficient to be a ‘relationship’ within the meaning of the provisions. Read as a whole the provisions are clearly not intended to refer to any relationship whatsoever, restricted only by the definition of ‘sponsoring spouse’ which requires only that there be a formal marriage. Rather the provision refers to a relationship in the nature of a ‘spouse’ as referred to in the earlier sub‑regulations.
I therefore find no error in Ground 1.
Ground 2
The second ground argued by the applicant was that the Tribunal had failed to take into account that she had suffered domestic violence in order to determine whether or not she had been in a spousal relationship with the sponsor.
It was pressed by counsel for the applicant that the fact of domestic violence, of itself, is not necessarily inconsistent with a spousal relationship existing. There could be no dispute with respect to this proposition.
However, counsel sought to take the argument further in arguing that the violence as alleged by the applicant, of itself, evidenced the existence of a spousal relationship under the regulations.
The central focus of the Tribunal was necessarily on the question of whether or not the relationship was to the exclusion of all others. As the Tribunal pointed out at page 10 of its decision, reg.1.15A does not include polygamous relationships (whether by legal marriage or de facto arrangements). This is undoubtedly correct.
In this regard the Tribunal said:
The Tribunal finds that the nominator has four children in Australia, all of whom share the same mother, Ms O. The Tribunal observes that the nominator’s third child was born after the parties’ relationship commenced in July 2001 and his fourth child was conceived in December 2002/January 2003, after the parties’ marriage on 16 May 2002 and during a period when the review applicant was present in Australia. The Tribunal notes that the nominator advised the Department that in his view, he was entitled to engage in casual sexual encounters despite his relationship with the review applicant. The review applicant’s migration agent submitted that, despite the nominator’s casual sexual encounters, including the encounter which led to the conception of his fourth child during the parties’ marriage, he maintained a genuine commitment to the review applicant.
However, regardless of when the review applicant became aware that the nominator had four children from another relationship with the nominator, it is clear to the Tribunal that the nominator did not at any time consider himself to be bound by any expectations of fidelity or trust in his relationship with the review applicant, such as might be expected in a genuine relationship, and that he did not have a commitment to a shared life with the review applicant as husband and wife to the exclusion of all others at any time after the marriage.
The Tribunal makes no findings in relation to information received by the Department that the review applicant is involved in another relationship with a man in Lebanon, whom she hopes to sponsor if she is granted permanent residence.
The Tribunal did not look at this information in isolation but considered the financial aspects of the marriage, the nature of the household the social aspects of the relationship and the nature of the parties’ commitment to each other. In the context of this particular case the domestic violence issue was not of such central relevance that it would have been a jurisdictional error on the part of the Tribunal to fail to make formal findings as to the domestic violence in determining whether or not the relationship was ever a spousal relationship within the meaning of reg.1.15A.
The other matters referred to by the Tribunal were of much more significant moment in the context of this case.
Ground 3
The next ground was a claim that a delegate had previously found that the parties were in a genuine spousal relationship as at 9 August 2002 at the time of the initial visa grant. It was argued that it was not open to the Tribunal to reconsider the same question as the Delegate and effectively overturn the Delegate’s Decision. This misconceives the nature of administrative decision making. The Delegate's initial decision does not create a res judicata or issue estoppel in the way that a decision of the Court would create such an estoppel when exercising judicial power.
The question is at large for the Tribunal and the Tribunal is entitled to consider the matter for itself on the acts and circumstances then before the Tribunal. As Heerey J pointed out Nouv v The Minister for Immigration [2006] FCA 1474 14: (Approving similar comments by Phipps FM in Ho v The Minister for Immigration and Multicultural Affairs [2006] FMCA 1285).
The Tribunal may have different and additional evidence bearing upon the parties' relationships at the time of the grant of the permanent visa and it must make its own assessment of that evidence. It is not required to accept a previous decision as being correct.
Ground 4
The final ground relied upon was there was a failure to take into account reg.1.15A(5). It was argued that reg.1.15A(5) is the equivalent to a statutory presumption. It appears to me that this argument puts the regulation far higher than its actual terms which are simply:
If two persons have been living together at the same address for six months or longer that fact is taken to be strong evidence that the relationship is genuine and continuing.
Living together does not create a legal presumption, it is simply strong evidence that the relationship is genuine and continuing. Indeed even without the section it is likely that such evidence would be strong circumstantial evidence of the proposition referred to.
There is no doubt that the Tribunal in this case was aware of this sub-regulation, however, this evidence had to be weighed against the other evidence in this case. The evidence that the sponsoring spouse had fathered two children to a third party prior to the marriage and two further children subsequent to the marriage (and to the same mother) in the circumstances of this case was also strong evidence against a spousal relationship.
On the material available I am not satisfied that the Tribunal has failed to have regard to relevant factors nor failed to properly consider the effect of reg.1.15A(5). The decision that was ultimately made by the Tribunal was open to it on the material.
In the circumstances I therefore dismiss the current application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Averil Tan
Date: 6 June 2007
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