ESAWY v Minister for Immigration

[2015] FCCA 341

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESAWY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 341

Catchwords:
MIGRATION – Migration Review Tribunal – Application for Partner (Provisional) (Class UF) visa – Whether the Tribunal had regard to the circumstances in support of a relationship – Application dismissed.

Legislation:  

Migration Act 1958

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788

Applicant: SAFA MOHAMMED ATTIA ESAWY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2079 of 2014

Judgment of: Judge Street

Hearing date: 16 February 2015

Date of Last Submission: 16 February 2015

Delivered at: Sydney

Delivered on: 16 February 2015

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The Court orders the applicant to pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2079 of 2014

SAFA MOHAMMED ATTIA ESAWY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ on grounds identified in the application. 

   1. The Migration Review Tribunal decision is not reasonable and it is a denial of natural justice and fairness as my husband and I are legally married and provided sufficient evidence in support of our relationship yet the Tribunal ignored the personal circumstances and the explanation given in support of the relationship.

2. The visa applicant applied for a Partner (Provisional) (Class UF) visa on 31 January 2013 and the delegate refused that application on 29 October 2013.  The review applicant applied for a review of the delegate’s decision on 6 November 2013 and the Tribunal conducted a hearing on 9 May 2014, which the review applicant attended and at which the visa applicant was contacted and gave evidence by telephone. 

3. Following at a hearing the Tribunal received further material from the review applicant on 19 May 2014 and the Tribunal affirmed the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa on 27 June 2014.  The Tribunal carefully identified the criteria for the grant of a visa and, materially, in this case, identified the definition of “spouse” in s.5F and the information that must be taken into account under r.1.15A(3). 

4. The review applicant and the visa applicant legally married in Egypt on 21 January 2013, the review applicant having arrived in Egypt with her ex-husband and children on 15 January 2013. The review applicant left Egypt to return to Australia on 12 February 2013. 

5. None of the review applicant’s family attended the wedding.  Subsequent to the wedding, it is clear from the Tribunal’s decision that there has been no financial support from the visa applicant.  The Tribunal identified that the visa applicant was the review applicant’s sister-in-law’s ex-husband.  Both the review applicant and the visa applicant asserted albeit at different dates, that an engagement occurred prior to their respective legal divorces at the end of 2011. 

6. The asserted engagement prior to the divorces allegedly took place before a transfer on 23 September 2011 of $9,520 via the Arab Bank Australia from the review applicant to the visa applicant in which the beneficiary contact details record the reason for transfer as “paying debt back”.  The review applicant was asked by the delegate where that money came from and was told, “it was Centrelink paying me money” in relation to the review applicant’s newborn baby daughter, so that the sum included the baby bonus that the review applicant had received as well as some other saved money.  The review applicant apparently stopped working in February 2014 and has since been receiving financial support from Centrelink.

7. The review applicant made a further payment to the visa applicant about five months after the first payment in the sum of $6,000 sent on 21 February 2013 in which, again, the reason for the transfer is identified as “paying debt back”.  The Tribunal accurately identified in its findings in para.22 that the review applicant could not explain the description of those two not insubstantiated transfers of money and, materially, the Tribunal found there was no arrangement of finances such as to indicate a spousal relationship.  The Tribunal also found that there was no information as to household arrangements in the context where the review applicant had asserted that the first payment was because she wanted the visa applicant to buy furniture for the flat.  No evidence was adduced about the purchase of any furniture for the house, but the visa applicant did say that the second payment was for the purpose of him buying a phone.

8. Relevantly, the Tribunal turned to consider the social aspects of the relationship and found that the marriage is known by very few people and the Tribunal said:

   25. …The visa applicant's four friends attended the wedding with their wives. His siblings and mother know of it. None of the review applicant's family are aware of the marriage. She has deliberately refrained from telling them, because of the social and other implications.

9. In these circumstances, the Tribunal found that there is very limited recognition of the relationship as a marriage.  The Tribunal found in relation to the nature of each person’s commitment to the other that they were married very soon after they were divorced and, materially, that the review applicant and the visa applicant have spent very little time together.  The Tribunal expressly raised with the review applicant the visa applicant’s responses at the department interview which were inconsistent and the review applicant responded sending in a written submission suggesting that the visa applicant was under stress or may have had a problem interpreting.

10. The Tribunal, after carefully considering the circumstances, found, quote:

    29. …the Tribunal is of the view that there is not a genuine spousal relationship between the visa applicant and the review applicant. There is no financial commitment; extremely limited social recognition; no information as to the nature of the household; they have spent very little time together before and since the marriage; there is some communication between them but no indication as to the nature of this.

    30. Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.

11. It was in these circumstances that the Tribunal found that the visa applicant did not meet the criteria under cl.309.211 and cl.309.221 and that, accordingly, the visa applicant did not satisfy the criteria for the grant of a visa and the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa was affirmed.

12. Insofar as the grounds of application raise an issue of unreasonableness, I am satisfied a reasonable Tribunal could have come to the findings made in the review and that the decision was clearly one on which it was reasonably open for the Tribunal to come to the findings made after taking into account the principles identified in the Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131]. Further, I am satisfied that there is an evident and intelligible justification for the findings made and, accordingly, there is no substance in the contention that the decision was unreasonable. The findings were open on the material before the Tribunal and reveal no jurisdictional error or non-compliance with the statutory requirements of procedural fairness.

13. Insofar as it is suggested that the review applicant was denied natural justice and fairness, I am satisfied that the Tribunal conducted the review in accordance with the statutory requirements and, relevantly, complied with the requirements of s.359A and s.359AA of the Act.  It is clear that the Tribunal not only gave the review applicant and the visa applicant an opportunity to be heard, but in fact received further information from the review applicant after the hearing.  There is no substance in the contention that there was any denial of procedural fairness or denial of natural justice or non-compliance with the statutory requirements of procedural fairness.

14. The submissions of the review applicant also raised the suggestion that there was an error by relying upon the decision of Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788. It is clear that in that case the Tribunal was found to have erred because there was said to be no identification of the application of the factors under reg.1.15A(3), whereas in this case it is crystal clear that the Tribunal both identified and had regard to the factors in reg.1.15A(3). In these circumstances the decision of Nassouh is plainly distinguishable and does not assist the review applicant in identifying any jurisdictional error.

15. Further, to the extent that it is suggested that the Tribunal ignored the circumstances and explanation given in support of a relationship, it is clear from the reasons of the Tribunal that the Tribunal had regard to the whole of the information before it and it was a matter for the Tribunal what weight it sought to give the particular explanations.  There was no jurisdictional error in relation to the Tribunal’s approach to the findings concerning the circumstances and explanations proffered by the review applicant or the visa applicant.

16. I am satisfied that it was entirely open to the Tribunal to make findings to the effect that it was not satisfied that at the time of the visa application or at the time of the decision the parties were in a genuine spousal relationship, taking into account the criteria under rule 1.15A(3).  For these reasons there is no jurisdictional error of the kind identified by the review applicant. 

17. The Court was provided with a supplementary submission which was marked exhibit C and which does not take further the establishment of any jurisdictional error.

18. For these reasons the 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:  23 February 2015