Elzir v Minister for Immigration

[2016] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELZIR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 700

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner Temporary (Class UK) visa – extension of time application – whether Tribunal erred in making adverse credit findings – no arguable case of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476, 477

Migration Regulations 1996 (Cth), reg.1.15A, cl.820.211

First Applicant: TAWFIK FAWZY AHMED ELZIR

Second Applicant: HABIBA TAWFIK AHMED ELZIR

Third Applicant: YASMINE TAWFIK FAWZY AHMED ELZIR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3243 of 2015

Judgment of: Judge Street

Hearing date: 31 March 2016

Date of Last Submission: 31 March 2016

Delivered at: Sydney

Delivered on: 31 March 2016

REPRESENTATION

The applicants appeared in person

Solicitors for the First Respondent: Ms B Griffin
Australian Government Solicitors

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

2. The first applicant pay the costs of the first respondent fixed in the amount of $4500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3243 of 2015

TAWFIK FAWZY AHMED ELZIR

First Applicant

HABIBA TAWFIK AHMED ELZIR

Second Applicant

YASMINE TAWFIK FAWZY AHMED ELZIR

Third 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 a decision the Tribunal made on 22 October 2015 affirming a decision of the delegate not to grant the applicant’s partner temporary class UK visas. The second and third applicants are children of the first applicant. The application was filed out of time and an extension is required under s.477 of the Migration Act1958. In order to obtain an extension of time under s.477 the applicant has to proffer a satisfactory explanation for the delay in filing the application, as well as identifying a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

2. In the present case the only reference to an explanation for the delay in the material provided by the applicant is a reference to having faxed the application four times on 20 November 2015 and on 29 November 2015.  When the issue was raised by the Court with the applicant as to the explanation for the delay, the applicant said that he gave the papers to his lawyers and did not know what the problem was.  The Court does not regard this as a satisfactory explanation for the delay.  More importantly, however, the grounds of the application fail to identify any arguable ground of jurisdictional error.

3. The grounds are as follows: 

   1. I first came to Australia in 2007 on a student visa. Under that and subsequent student visas I remained studying legally in Australia unti12013. I studied English, Business Administration, Certificate III in Process Manufacturing and a Diploma in Business Studies. I was a diligent student and passed all these courses. I departed Australia on time at the completion of my studies.

   2. I married my first wife, an Egyptian national, in 2009. She and I split-up in November 2012.

   3. My second wife and I met in 2012, in a butcher shop I was a partner in, in Auburn, NSW. She is a childcare worker and cared for my eldest child. We became close and decided to marry. We were married in February 2013. The MRT Decision accepts (at para. 46) that this is a legally valid marriage.

   4. My second wife has four children from a previous marriage, which was from 2007 to 2011. We live together in a privately rented house in Auburn. She was born in Sudan, but has obtained Permanent Residency as a refugee from Egypt.

   5. My children live with their mother (my first wife), also in Auburn. In the event that I am granted Permanent Residence in Australia at some future date, the children will then reside with my second wife and myself.

   6. My current wife corroborated the evidence I gave at the MRT- as is demonstrated by the MRT Decision in my case.

   7. On 12 April 2013 I applied for a Partner (Temporary) (Class UK) visas for my two daughters, Miss Yasmine Tawfik Fawzy and Miss Habiba Tawfik Ahmed Elzir and myself.

   8. My second wife, who resides in Auburn NSW, sponsored these applications.

   9. The Departmental Delegate refused these three applications on 14 August 2014, on the basis that he was dissatisfied with the genuineness of my ongoing spousal relationship with my Sponsor, to the exclusion of all others.

   10. I subsequently appealed this decision on 26 August 2014 to the Migration Review Tribunal (MRT). The appeal hearing was on 16 October 2015.

   11. On 22 October 2015 the Migration and Refugee Division of the Administrative Appeals Tribunal (MRT/AAT) decided to reject my application for a Partner (Temporary) (Class UK) visa. The reason stated for this was the Member's perception that my wife and I do not have a genuine ongoing spousal relationship.

   12. When questioned concerning my first marriage by the MRT Member, I responded that I had initially been married to Ms. Souad Saleem. My two daughters, Yasmine and Habiba, are from this marriage.

   13. The MRT Member conceded (at para. 49) 'some degree of social recognition' between my wife and I. He classified these as 'limited', however, on the basis that he believes my wife have not 'shared' our marriage with any of our respective family members. In fact, my wife and I explained this at the MRT: both of us have had bad experiences of interference in marital affairs by our respective families in our previous marriages. We therefore resolved not to involve them in our marriage. It is, of course, unfortunate that we cannot share our marriage with our respective families, but we believe that we have no other choice, as we are determined not to repeat any past errors, and to safeguard our marriage. So far, this approach has worked very well and is undoubtedly a positive factor in the strength of our marriage.

   14. The Member evinced much concern about the fact that my first wife was about to give birth with my second child at the time when my first marriage broke down and I began a relationship with my current wife. All this, the Member argues, shows that my current marriage cannot be a genuine ongoing spousal relationship to the exclusion of all others. However, this was also explained to the MRT Member at my hearing. I explained (at paras. 10, 12 & 17) that the parents of my ex-wife and myself arranged my first marriage. I clarified that she and I could never communicate and had no common life. Our marriage was a dismal failure. In contrast, meeting my future wife was a tremendous blessing in my life; for the very first time I was in love. I remain very much in love with her; this cannot be doubted. Despite our different cultures (Sudanese and Egyptian) we have therefore adapted easily to each other and to each other's children. We have a real common life together and share the same hopes and dreams. This is the real proof of the genuine ongoing nature of our spousal relationship, to the exclusion of all others.

   15. Furthermore, with respect specifically to the Member's claim that my wife and I do not have a relationship that excludes all others, I respectfully point out that no evidence or argumentation has been brought forward by either the Department or the MRT that the relationship of my wife and I is not strictly monogamous, therefore excluding all others. Both my wife and I presented evidence at the MRT of our common social life, and our common struggle to meet life's challenges. And, as previously noted, even the MRT Member accepts (at para. 46) that this is a legally valid marriage. Indeed it is not only valid de jure, but in every other practical and loving sense. Neither my wife nor myself need additional conjugal partners; we are completely satisfied and happy with each other.

   16. The Member doubts that my wife and I actually live together in the rented house I named in evidence at the MRT. The Member accepts that my wife and I signed the lease document for this house. Neither he- nor any other person- has ever suggested that my wife and I live anywhere else. It should be apparent in the circumstances that my wife and I live together in the house where we pay $560 rent every week.

   17. The Member is also concerned that my wife and I do not have a lot of money in our joint bank account, believing, apparently, that this is a ground for suspicion that we do not share an ongoing, common life. A moment's reflection upon the current economic realities that my wife and I must juggle shows that the Member, it is respectfully suggested, is in error here, as well. In fact, my wife and I no sooner obtain money from her work or from Centrelink than it is immediately expended on immediate, pressing expenses. We do not have the luxury of allowing money to rest in an account.

   18. My current wife corroborated the evidence I gave at the MRT- as is demonstrated by the MRT Decision in my case. I am an honest person and have never broken Australian law. I previously departed Australia on time at the completion of my studies. Respectfully, I suggest that my evidence deserves to be believed.

   19. I respectfully suggest that all of the concerns of the MRT Member have been answered herein, and request that you grant the visas I request to my daughters to myself, so that we might live in harmony together.

4. On 28 January 2016 a Registrar of the Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  The applicant did file an affidavit annexing the transcript.  No amended application or submissions were filed.  The Tribunal found it was not satisfied that at the time of the visa application was made and at the time of the decision the parties were in a spousal relationship.

5. The Tribunal found that the applicant did not meet the requirements of cl.820.211(2) and it was in those circumstances that the Tribunal affirmed the decision of the delegate. The delegate was also of the view that there was not sufficient evidence to demonstrate that the applicant was in a genuine continuing spousal relationship as defined under s.5F and in accordance with the criteria in reg.1.15A. The transcript identifies the Tribunal at the commencement of the hearing that took place on 16 October 2015 raising with the applicant whether he and his current wife were in a genuine continuing relationship to the exclusion of all others.

6. The applicant’s evidence was that when his wife was pregnant with his second child and before the second child had been born he split up with his then wife and divorced her in accordance with the laws of Egypt.  16 weeks later the applicant asserted he was in a fresh genuine relationship with his now current wife, who he had met as a customer in his butcher shop and who was a carer for his children.  The evidence given to the Tribunal member was that the applicant had not told his parents of the marriage and the evidence of the applicant’s second spouse was that she had not told her parents of the alleged marriage.

7. There was ample evidence upon which the Tribunal could make the adverse findings made in relation to the want of a spousal relationship at the time of the visa application and at the time of the decision.  The adverse findings of the Tribunal were open on the material before the Tribunal.  I am satisfied that the applicant had a genuine hearing and nothing said by the applicant from the bar table identified any basis on which there could be said to be an arguable jurisdictional error. 

8. The grounds of the application failed to identify any arguable jurisdictional error.  To the extent that the contents of the application might be said to raise a failure to consider all of the evidence, it is apparent from the Tribunal’s reasons that the Tribunal had regard to the evidence adduced by the applicant including the statutory declarations and financial records.  In that regard, the delegate had noted that the account that had been opened on 19 February 2013, which was a joint account, showed no evidence of being used as at the date of the delegate’s decision. 

9. The proposition that there was no evidence upon which the Tribunal could make the adverse findings is without substance.  The circumstances referred to above and in particular the failure of either applicant or his now spouse to have informed their parents of the relationship, the date that the applicant’s wife said that they started living together, the circumstances relating to the applicant’s first wife at the time the applicant allegedly left her, were ample evidence upon which the adverse findings of the Tribunal were open. 

10. The adverse findings cannot be said to lack an evident and intelligible justification and so far as the applicant seeks to challenge the adverse findings of fact it was a matter for the Tribunal to determine the applicant’s credit on the material before the Tribunal. The adverse credit findings were open in relation to the criteria that the applicant had to meet in respect of spousal relationship under s.5F and in particular under the reg.1.15A. The Tribunal’s reasons identify that the Tribunal dealt with the mandatory requirements under reg.1.15A and the assertion that the reasons were illogical has no substance.

11. Nothing said by the applicant from the bar table identified any basis for which there could be said to be an arguable jurisdictional error.  In these circumstances I am not satisfied that there is any sufficiently arguable ground to warrant an extension of time in the interests of the administration of justice. 

12. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016