ELKASHIF v Minister for Immigration

[2015] FCCA 677

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELKASHIF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 677

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary)(Class UK) visa – whether parties intended to live together and not live separately and apart on a permanent basis – whether parties in a genuine and continuing spousal relationship.

Legislation:
Family Law Act 1975
Migration Act 1958 ss.5F, 12
Migration Regulations 1994 reg.1.15A

Cases cited:
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 139 ALD 181; (2013) 249 CLR 332; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16

Applicants:

AHMED FATHI DOUAD ELKASHIF

MAUREEN ELKASHIF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 880 of 2014

Judgment of: Judge Riley

Hearing date: 24 February 2015

Date of last submission: 24 February 2015

Delivered at: Melbourne

Delivered on: 24 March 2015

REPRESENTATION

Advocate for the Applicant: Des Leyden

Solicitors for the Applicant: Des Leyden Law & Migration

Counsel for the First Respondent: Timothy Goodwin

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 6 August 2014 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 880 of 2014

AHMED FATHI DOUAD ELKASHIF

MAUREEN ELKASHIF

Applicants

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. 

2. Section 5F of the Migration Act 1958 (“the Act”) provides as follows:

   (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.

   Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

3. Section 12 of the Act provides as follows:

   For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.

4. Regulation 1.15A of the Migration Regulations 1994 provides as follows:

   (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)If the Minister is considering an application for:

   (a) a Partner (Migrant) (Class BC) visa; or

   (b) a Partner (Provisional) (Class UF) visa; or

   (c) a Partner (Residence) (Class BS) visa; or

   (d) a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (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.

   (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Background

1. The applicant was born in Sudan in May 1955. He was married from 1979 until 2008 when he was divorced. He applied for a protection visa on 27 March 2007 which was refused on 21 June 2007. The applicant applied unsuccessfully for review by the Refugee Review Tribunal and also applied unsuccessfully for Ministerial intervention. The applicant lived in the community in Canberra from November 2008 until January 2010 as an unlawful non-citizen.

2. The applicant’s sponsor was born in Australia in 1957. She was married from 1986 until 1999 when she was divorced. She lived in Melbourne.

3. The applicant and his sponsor said that they met through a mutual friend in Canberra on 15 April 2009 and began a relationship one month later. They said that they became a de facto couple on 27 November 2009 and married on 16 December 2009.

4. In March 2010, the applicant lodged an 8503 waiver request to permit him to lodge a partner visa application. The applicant said in the waiver request that he needed to remain in Australia as his spouse needed his care and support due to her significant health issues. The waiver request was approved. The applicant lodged the application for a partner visa on 12 July 2010.

5. The applicant and his sponsor were interviewed by a departmental officer on 24 January 2012. The delegate noted that the couple did not live together. The applicant claimed that he maintained the relationship by travelling from Canberra to Melbourne to visit the sponsor as often as he could and by providing some financial assistance when the sponsor requested it. The applicant said that he had visited his sponsor in Melbourne for about a week at a time on six occasions during the previous two years. The applicant claimed that he could not relocate to Melbourne as he could not get employment there. The delegate noted that the department had received an allegation that the applicant had entered into the relationship for the sole purpose of obtaining the visa to allow him to remain in Australia. The applicant and the sponsor denied that allegation. The delegate concluded that the applicant and his sponsor were not in a genuine and continuing spousal relationship.

6. The Tribunal conducted a hearing on 19 February 2014. The applicant appeared by videoconference and his sponsor gave evidence by telephone. The applicant was represented throughout the Tribunal proceedings by a registered migration agent.

The Tribunal’s reasons

1. The Tribunal had concerns about the credibility of the parties’ evidence. Although the parties claimed to have met on 15 April 2009, they provided a letter written by the sponsor on 16 October 2009. The Tribunal considered that the sponsor was clearly introducing herself in that letter. Additionally, the applicant claimed at the Tribunal hearing that they had met a year before that letter was written and the sponsor claimed that they had met in August or November 2008. The Tribunal accepted that people could forget the exact date of their first meeting. However the Tribunal did not accept that there could have been such a discrepancy if the parties had been telling the truth.

2. The Tribunal found it implausible that the parties would have stayed at their friend’s home both before and after their wedding in circumstances where the friend did not attend the wedding. Given their language differences, the Tribunal did not accept that it was credible that the applicant and his sponsor would have been able to communicate by telephone to the extent that they claimed between the time they met and the time of their wedding.

3. The Tribunal noted that, in his waiver application, the applicant had said that he needed to provide care and support to his sponsor due to her significant health issues. However the Tribunal noted that the applicant had not lived with the sponsor in over four years except for some brief visits to Melbourne.

4. Overall, the Tribunal found the applicant’s and the sponsor’s evidence to be unconvincing and lacking credibility.

5. The Tribunal found that the applicant and his sponsor were validly married to each other.

6. The Tribunal found little evidence of a shared financial relationship. The Tribunal noted that the sponsor continued to receive a disability support pension at the single rate.

7. In relation to the nature of the household, the Tribunal considered that there was no evidence that the applicant and the sponsor resided together other than on an intermittent and temporary basis.

8. In relation to the social aspects of the relationship, the Tribunal noted that two statutory declarations had been provided by the applicant’s friends in Canberra. However, the Tribunal noted that there was no supporting evidence from the sponsor’s family members or friends in Melbourne or the friend who was said to have introduced the applicant to the sponsor.

9. Regarding the nature of the parties’ commitment to each other, the Tribunal considered that there was little evidence that the parties provided companionship and emotional support to each other. In particular, the Tribunal noted that the applicant knew little about the sponsor’s son’s situation.

10. In relation to whether the parties lived together, the Tribunal noted that, except for very brief visits, they have never lived with each other during the four years of their marriage. The Tribunal considered that the applicant had made minimal effort to find work in, and move to, Melbourne. Consequently, the Tribunal was not satisfied that the applicant and his sponsor intended to live together in the future and to not live separately and apart on a permanent basis.

11. The Tribunal concluded that the marriage was contrived for the purposes of the applicant gaining a visa, and the applicant and his sponsor were not in a genuine and continuing spousal relationship.

Ground 1

1. The first ground of review in the application filed on 6 August 2014 is:

   The applicant was unlawfully denied the grant of a Partner (Temporary) (UK) 820 Visa under S 65 of the Migration Act 1958

2. The applicant argued firstly that the Tribunal had made a jurisdictional error by interpreting s.5F of the Act without regard to the provisions of the Family Law Act 1975. That argument is without substance. It is the definition of “spouse” in the Migration Act 1958 that the Tribunal was required to apply.

3. The applicant also argued that it was possible to have a genuine relationship, even where one of the parties worked away from home for prolonged periods, such as some people in the military or the mining industry. The first respondent argued that in such cases there would generally be other indicia of an intention to live together on a permanent basis such as having established a house together prior to one of the parties leaving for work reasons. In any event, it seems to me, on the material that was before the Tribunal, that it was open to it to conclude that the applicant and his sponsor did not have an intention to not live separately and apart on a permanent basis. There was no indication that they intended to cohabit except during occasional and brief visits.

4. The applicant then argued that the Tribunal had not considered all of the relevant material. In particular, the applicant said that the Tribunal had failed to consider a statutory declaration made by Alameidin Mohamed Talib.  However, the Tribunal clearly did consider that statutory declaration.  It was referred to in paragraph 67 of the Tribunal’s reasons for decision. The Tribunal said it placed little weight on it, because it expected evidence to be provided by the sponsor’s family and friends in Melbourne. The Tribunal is entitled to place such weight on particular items of evidence as it sees fit. It is not for this court to interfere with decisions of that type.

5. The applicant also argued that the Tribunal had failed to consider a tenancy agreement in joint names dated 28 January 2010.  The Tribunal did in fact refer to a tenancy agreement in paragraph 63 of its reasons for decision.  That tenancy agreement was said by the Tribunal to be dated 24 March 2011.  It appears that the Tribunal was mistaken about the date of the tenancy agreement.  It is not suggested that there was another one.  The mistake in the date does not appear to me to in any way invalidate the Tribunal’s decision.  In relation to the tenancy agreement, the Tribunal said it placed no weight upon it because both parties gave evidence to the Tribunal that only the applicant had ever lived in the apartment the subject of the tenancy agreement.  It was open to the Tribunal to give the tenancy agreement no weight.

6. The applicant also argued that the Tribunal had failed to consider two letters dated 18 and 21 December 2009 from doctors in Canberra regarding foot problems suffered by the sponsor.  Those letters show her address as 33/177 Strathgordon Crescent Lyons ACT.  However, those letters did not advance the matter. The sponsor claimed to have married on 16 December 2009 and remained in Canberra, living at a friend’s place, until Christmas Eve. The letter of 18 December 2009 was consistent with that account. However, the issue for the Tribunal was whether the applicant and sponsor had lived together for more than very brief periods.

7. The applicant argued that there was no factual evidence that the marriage was contrived. This submission asks the court to impermissibly engage in merits review. The Tribunal assessed the evidence before it, and considered that the marriage was contrived. That conclusion was open to the Tribunal.

8. The applicant argued that the Tribunal had failed to take into account a number of items of evidence. The Tribunal is under no obligation to expressly mentioned and deal with every item of evidence. The Tribunal did refer to a number of the documents that the applicant has mentioned but was not persuaded that they justified a conclusion that the marriage was genuine and continuing. There was no jurisdictional error in the Tribunal proceeding as it did.

9. The applicant argued that the Tribunal failed to put any weight on the applicant being absent from the home due to his employment and failed to put any weight on the evidence of the applicant’s travel to Melbourne to spend time with his wife. The Tribunal did accept that the applicant sometimes travelled to Melbourne to spend time with his wife. However, the Tribunal considered that those visits were very brief and did not amount to the applicant and sponsor living together. The Tribunal noted that the applicant continued to work in Canberra and also noted at paragraphs 73 and 76 of its reasons for decision that there was minimal evidence of any effort on the applicant’s part to obtain work in Melbourne.

10. The applicant argued that the Tribunal had taken an unduly narrow view of the concept of care and support. The applicant argued that he had supported the sponsor by travelling to Melbourne when he could and communicating with her by telephone. The Tribunal considered the evidence about the times that the parties spent together and the telephone contact between them, particularly at paragraph 71 of the reasons for decision.  However, the Tribunal concluded at paragraph 74 of its reasons for decision that there was little evidence that the applicant and sponsor provided companionship and emotional support to each other. That conclusion was open to the Tribunal on the evidence before it.

11. The applicant argued that the sponsor returned to Melbourne because she needed medical treatment and was comfortable with her health care providers in Melbourne.  The Tribunal was clearly aware that the applicant had significant health issues.  However, there was no material provided to the effect that the sponsor would not have been able to receive adequate health care in Canberra if she had remained there with the applicant. In any event, the Tribunal appears to have proceeded on the basis that the real question was why the applicant did not come to live with the sponsor in Melbourne.  The Tribunal found the reasons offered by the applicant for remaining in Canberra namely, work commitments, to be unpersuasive. The Tribunal noted that the applicant provided very little evidence that he had genuinely sought work in Melbourne, except for a period in April and May 2013. The Tribunal’s approach to this matter does not appear to involve jurisdictional error.

12. The applicant also argued that the Tribunal’s conclusion that the marriage contrived was unreasonable. A well-known statement of the circumstances in which illogicality or irrationality will amount to jurisdictional error is at [130] to [131] of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, where Crennan and Bell JJ said:

    In the context of the Tribunal's decision here, “illogicality”
    or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

1. However, in Minister for Immigration and Citizenship v Li (2013) 139 ALD 181; (2013) 249 CLR 332; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18, the High Court modified the SZMDS test somewhat, at [27], [28], [66], [72], [75] and [76]. Those paragraphs are as follows:

   27.In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:

   “If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.” 

   That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred. (footnotes omitted)

   28. Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”.  In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense. (footnote omitted)

   …

   66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. (footnotes omitted)

   …

   72.The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”.  Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. (footnotes omitted)

   …

   75.In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”.  House v The King holds that it is not enough that an appellate court would have taken a different course.  What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration.  The analogy with the approach taken in an administrative law context is apparent. (footnotes omitted)

   76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”.  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnote omitted)

2. In Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1, at [44], the Full Court of the Federal Court said:

   In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

   It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

3. Paragraph [47] of Singh, although obiter, is also noteworthy:

   This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499; 10 ALJR 202, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a

   
   

   decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the

   
   

   decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

4. In view of those authorities, it is not appear to me that the Tribunal’s decision in this case was unreasonable in the legal sense.

Ground 2

1. The second ground of review in the application filed on 6 August 2014 was withdrawn at the hearing.

Ground 3

1. The third ground of review in the application filed on 6 August 2014 is:

   The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

2. The applicant argued that the Tribunal had based its conclusion that the parties did not live together in a genuine and continuing relationship on incorrect facts. In particular, the applicant noted the Tribunal’s mistake in relation to the date of the tenancy agreement, saying it was 24 March 2011 rather than 28 January 2010. The applicant argued that the Tribunal had failed to take into account that the parties lived together in Canberra until medical problems required the sponsor to return to Melbourne.  However, the Tribunal’s mistake about the date of the tenancy agreement made no difference to the Tribunal’s decision, not least because the sponsor in fact said that she had returned to Melbourne on Christmas Eve 2009.

3. The applicant also argued at length about the applicant’s medical problems.  However, even assuming that the sponsor did need to be in Melbourne for medical reasons, the Tribunal was not persuaded that the applicant had made real efforts to obtain work in Melbourne. The Tribunal does not appear to have made a jurisdictional error in connection with this matter.

4. Otherwise, the applicant again sought to impermissibly engage in merits review.

Ground 4

1. The fourth ground of review in the application filed on 6 August 2014 is:

   The exercise of power was in a way that constitutes abuse of power

2. The applicant’s arguments in relation to this ground appeared to be a repeat of his arguments in relation to the other grounds.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 24 March 2015