Elsharkawi v Minister for Immigration

[2015] FCCA 3192

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELSHARKAWI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3192

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Refugees and Migration Division) – Partner (Temporary) (Class UK) visa – whether reg.1.15A allows the Tribunal to consider the credibility of the applicant – whether the Tribunal was obliged to consider each factor in reg.1.15A in isolation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.15A(3), cl. 820.211

Applicant: HATEM ALI ABDELMAABOUD ELSHARKAWI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1713 of 2015

Judgment of: Judge Street

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Sydney

Delivered on: 1 December 2015

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Counsel for the First Respondent: Mr M Smith

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1713 of 2015

HATEM ALI ABDELMAABOUD ELSHARKAWI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of the decision of the Tribunal made on 25 May 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant’s last substantive visa ceased on 13 June 2010 and the applicant, in order to meeting the requirements of subclause 820.211(2)(d)(ii) at the time of application had to satisfy each of the Schedule 3 criteria.

3. It was common ground before the Tribunal that the applicant ceased to hold a substantive visa more than 28 days before lodging the application for the visa in this case which occurred on 20 September 2012 approximately two months after the applicant married the sponsor. 

4. The delegate identified that if the applicant was unable to meet the Schedule 3 criteria, consideration had to be given to determining whether there were compelling reasons for not applying the Schedule 3 criteria.  The delegate was not satisfied taking into account the reasons advanced by the applicant that there were compelling reasons not to apply the Schedule 3 criteria.

5. By letter dated 20 February 2015 the applicant was invited to attend a hearing before the Tribunal on 27 March 2015 at which the applicant appeared to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s sponsoring partner and from two other witnesses.  The applicant was also represented by his migration agent at that hearing.

6. The Tribunal identified the issue in the present case was whether the requirements of cl.820.211(2)(a) at the time of application was made out in relation to the applicant being the spouse of the de facto partner. The Tribunal identified the requirements of s.5F of the Act in relation to that definition and referred to the subject matters identified in s.5F and the requirement to take into account the matters identified in s.5F(a)-(d) and the matters identified in reg.1.15A(3). That regulation was extracted and attached as an attachment to the decision identified relevantly as page 18 of 20.

7. The Tribunal accepted that there was a valid marriage for the purpose of s.5F(2)(a) of the Act. The Tribunal under the heading of “Consideration of All Aspects of the Party’s Relationship” addressed the subject matter of reg.1.15A(3), which topic hearings were consistent with the subject matters of the substantive subparagraphs of reg.1.15A(3).

8. The grounds of the amended application are as follows: 

   1. The Tribunal erred in construing and applying Migration Regulation 1.15A(3)(b).

   Particulars

   (a) Error in construing Migration Regulation 1.15A(3)(b) as permitting the Tribunal to make findings on the nature of the applicant’s household by taking into account matters going to the applicant’s credit which were not specifically concerned with the nature of that household.

   (b) Error in applying matters going to the applicant’s credit which were not concerned with the nature of the applicant’s household in making findings about that household.

   (c) The structure and content of s.5F of the Migration Act, read with Migration Regulation 1.15A required the Tribunal to consider the evidence going to each factor stated in sub regulation 1.15A(3) in isolation prior to drawing overall conclusions as to whether the relevant persons were in a “married relationship” within the meaning of s.5F of that act.

9. The substance of the argument developed by counsel for the applicant was that the Tribunal had misconstrued reg.1.15A(3)(b) by failing to take into account the structure, text and purpose of the Migration Act 1958 and the provision. It was argued upon the proper construction considerations of credit in respect of the mandatory requirements identified in reg.1.15A(3)(b) had to be either confined to the subject matter identified in reg.1.15A(3)(b) or the subject of identified global or general adverse credit findings.

10. Nothing in the structure, text or purpose of the regulation supports such a construction of the regulation. It was further submitted that there must be an express identified individual consideration of each of the roman subparagraphs identifiable on the reasons under reg.1.15A(3)(b). I reject that submission. Whilst express identification of each roman subparagraph will more readily reveal compliance with the mandatory requirement of regard to each matter in reg.1.15A(3), the reasons can make the apparent that there has been compliance with the mandatory consideration required by the regulation in many different ways. It is apparent from the reasons in this case that the Tribunal complied with the mandatory obligation to consider each of the requirements under reg.1.15A(3) and the Tribunal is not obliged to identify in its reasons each individual consideration of the roman subparagraphs, so long as it is clear or can be inferred that there has been an intellectual engagement with the substance of the regulation. It is clear there has been an intellectual engagement with each of the mandatory matters in reg.1.15A in the present case.

11. There is nothing in the language or structure of the reasons of the Tribunal to support any contention that the Tribunal misconstrued reg.1.15A(3)(b) insofar as the topics identified in reg.1.15A(3)(b) are concerned. It is clear from the Tribunal’s reasons that include reference to the nature of the household, care and support of the children, that the applicant or sponsor had not ever lived together and the reference to the responsibility for housework that, in fact, this Tribunal did consider each of the requirements under reg.1.15A(3.

12. It was argued that a misconstruction of the provision could be gleaned from what was said by the Tribunal in paras.80 and 81 as follows:

    80. Given the Tribunal’s concerns about the parties’ credibility and the numerous inconsistencies in the evidence, the Tribunal does not accept that the applicant and sponsor have ever lived together at the Riverwood address as they claim.  Consequently, the Tribunal does not accept that the parties share the responsibility for housework. 

    81.  The Tribunal finds that the evidence presented as to the nature of the parties’ household is not consistent with the applicant and his sponsor being in a genuine and continuing relationship. 

13. In essence, the submission was that the taking into account of the adverse findings in respect of the party’s credibility and numerous inconsistencies in finding the absence of a genuine and continuing relationship was not part of the subject matter required under reg.1.15A(3)(b) and therefore it should be inferred that the Tribunal had misconstrued or misunderstood the mandatory requirements of that regulation. I reject that contention.

14. It is was open to the Tribunal to take into account adverse credit findings in relation to the applicant and the sponsor, as to the Tribunal’s finding as to whether there was a genuine and continuing relationship in the context of determining the matters identified in reg.1.15A(3)(b). Further, the word “including” in relation to the nature of the household means that a narrow construction of reg.1.15A(3)(b) that excludes considerations of findings as to the parties’ credit and inconsistencies, as well as a finding as to whether there was a genuine continuing relationship would not be correct. Given the word “including” these are not matters that can be said to be irrelevant or give rise to a finding that the Tribunal has misconstrued the regulation.

15. In relation to the particulars to the alleged jurisdictional error, the Tribunal was entitled to take into account matters going to the applicant’s credit beyond the confined nature of the subject matter of reg.1.15A(3)(b). Accordingly, ground 1(a) fails to identify any jurisdictional error.

16. In relation to ground 1(b), this is, in substance, the same contention, that matters going to the applicant’s credit, given that they were not confined to the nature of the household of the applicant, supported a misconstruction of the regulation. This is, in essence, the same coin as advanced by ground 1(a). It was open to the Tribunal to take into account other matters going to the applicant’s credit in considering the mandatory criteria under reg.1.15A(3)(b). Ground 1(b) fails to establish any jurisdictional error.

17. Insofar as ground 1(c) contends that the Tribunal had to consider each factor in isolation, I reject that submission. Further, this is a case where it is clear that the Tribunal did consider each of the factors identified in reg.1.15A(3)(b). The structure, text or purpose of the Act or regulation, as a matter of construction does not support a confinement to evidence specifically referable to each factor in isolation in considering the mandatory criteria identified under reg.1.15A. Ground 1(c) fails to establish any jurisdictional error.

18. The amended application fails to establish any jurisdictional error.  The amended application is dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 December 2015