Habbabe v Minister for Immigration
[2006] FMCA 163
•17 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HABBABE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 163 |
| MIGRATION –– Migration Review Tribunal –– prospective spouse visa –– failure to properly consider future intent of parties –– relevance of existing family court order. |
| Migration Regulations 1994, reg.1.15A; Sch 2, cl.300.216 |
| Minister for Immigration & Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 MBGM v Minister for Immigration [2004] FCA 1373 MZWDX v Minister for Immigration [2004] FMCA 881 Paul v Minister for Immigration [2001] FCA 1196; (2001) 113 FCR 396 V04/05116 [2005] MRTA 694 |
| First Applicant: | RIMA C HABBABE |
| Second Applicant: | RAED MOHAMAD MATAR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG771 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 22 December 2005 |
| Date of Last Submission: | 22 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 17 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 2 June 2005.
That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG771 of 2005
| RIMA C HABBABE |
First Applicant
| RAED MOHAMAD MATAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal of 2 June 2005. The decision is with respect to a visa application by the second applicant, Raed Mohammed Matar. The application was brought and pursued by the review applicant at the Migration Review Tribunal, Rima C Habbabe. The review applicant is the spouse of the visa applicant.
The application arises out of an application by the second applicant for a Prospective Marriage visa (Class TO), sought on 12 February 2004. This application was refused by a delegate of the Minister on
1 September 2004.
At the hearing of the matter, the visa applicant was not able to attend, as he is not within Australia and he has not been granted a visa. The first applicant advised that the second applicant was aware of the proceedings, and that she was appearing to pursue the proceedings on his behalf, with his consent. The first applicant was unrepresented at the hearing.
The first applicant is a 31-year-old woman, who was born in Lebanon. She came to Australia on a Partner visa, when she was married to Yahyah Zaydan. During the course of her marriage to Mr Zaydan, she had a daughter, who was born on 18 October 2000. This marriage came to an end and a divorce issued on 12 March 2004.
The second applicant is a 31-year-old Lebanese citizen, who currently resides in Germany. The second applicant and the first applicant say that they have been known to each other since childhood and reunited in Lebanon on 5 September 2003 (after the first applicant had separated from her husband), and were married, under Islamic law, in Berlin on 4 January 2004 (a religious ceremony only). The visa application for the second applicant to travel to Australia for a prospective formal marriage was lodged on 12 February 2004, with the first applicant as the sponsor.
At the time that the visa application was lodged, the first applicant was a permanent Australian resident, having received citizenship on 15 April 2004.
The Tribunal outlined the material provided to it for the purpose of the hearing in its decision V04/05116 [2005] MRTA 694:
13.On 1 October a submission was received from the visa applicant’s migration agent (T1, f17-23). Included in that submission were, among other things, a letter from psychologist (T1, f18-20). That letter briefly outlined, among other things, the inception and development of the couple’s relationship. The letter also stated that the review applicant speaks with the visa applicant on a daily basis.
14.On 12 April 2005, a hearing was held, at which oral evidence was given by the review applicant and a friend, assisted by an interpreter and a registered migration agent. At the commencement of proceedings the review applicant handed up a parcel containing a large quantity of telephone service statements, telephone cards, photographs and letters, which the Tribunal noted and returned to the review applicant for safekeeping. She also provided a copy of her Islamic divorce certificate, and some Australian Family Court documents.
15.The review applicant briefly described the circumstances leading to the renewal of her friendship with the visa applicant, who was a former neighbour in Lebanon, following the demise of her arranged marriage to Yahyah Zaydan. She said that after “being bothered by some people”, he left Lebanon in 2001 and travelled to Germany as a tourist, subsequently lodging a protection visa application, which had not yet been determined by the German authorities. He had no work permit, but received a small pension, which he supplemented by working for friends on a casual basis, generally in the automotive trade.
16.The review applicant said that having known each other personally as neighbours in Lebanon, they had developed an appreciation of each other as people, and that all that she had since learned about him strengthened her belief that the relationship would be successful and that he would provide emotional support for her daughter. The review applicant contrasted the beginnings of the relationship with the visa applicant with the circumstances of her marriage to her ex-husband, of whom she knew nothing at the time of her betrothal. She said that she spoke with the visa applicant on a daily basis, that he telephoned her at 7.00pm every evening, and they exchanged letters and cards. She said that she had only been able to visit the visa applicant twice, because she had no family in Australia to care for her child, and had been prohibited by the Family Court from removing her from Australia. On the sole occasion that she had entrusted the child to the care of her in-laws, they claimed that she had abandoned the girl, and the review applicant became concerned that they may initiate change of custody proceedings in the Family Court. The review applicant confirmed that the decree absolute of dissolution of marriage became effective on 12 March 2004.
The applicant also set out a claim that her former husband had threatened to create trouble for her if she attempted to remarry, which is recounted by the Tribunal at paragraph 22 of the decision.
In the period leading up to her hearing before the tribunal she received a letter, on 28 April 2005, inviting her to comment upon information received by the tribunal. That letter included the following quote:
Anonymous information received by the Department in January 2004 indicates that you were planning to bring a male Lebanese national to Australia, via a contrived relationship. It was alleged that you had been paid AUD10,000, which was deposited into your daughter's account.
Not surprisingly, this issue was significant during the course of the hearing. It is not clear from the review decision just what the formal findings of the Tribunal were with respect to the allegation, the Tribunal stating:
39.The Tribunal is not satisfied with the explanations provided by the review applicant for the movements of large sums of money from and into her daughter’s bank account in 2004. In her solicitor’s letter of 16 May 2005, it is claimed that AUD$10,000 was withdrawn from her Westpac account on 11 November 2002, and lent to a friend, Mr Fakhoury. It is also claimed that that amount was repaid by cheque to the review applicant on 10 July 2003. Documents have been provided from Westpac and the Commonwealth Bank (T1, ff.116-7) verifying the date of withdrawal and the date of deposit into the child’s account on 10 July 2003. The solicitor has, curiously, described these funds as having been “paid back” into the daughter’s account (T1, f.120). There is, however, no evidence that the funds ever came from that source. Rather, the evidence indicates that the funds came from the review applicant’s Westpac investment account. The Tribunal accepts on the evidence that the AUD$10,000 was withdrawn from the review applicant’s Westpac account in November 2002, and was paid into the child’s Commonwealth account in July 2003.
40.However, that claim is inconsistent with the earlier statement by the review applicant in her covering note attached to her solicitor’s letter of 26 April 2005(T1, ff.106-7), in which she sought to explain the AUD$10,000 in the child’s account in January 2004 as being funds of her own that she transferred when opening an account in the child’s name shortly after her birth in 2000. There is no mention in that covering note by the review applicant of a repaid loan for a similar amount being deposited in July 2003. If the review applicant’s statements are taken at face value, she appears to have deposited about AUD$20,000 in her daughter’s account (when she allegedly established the account and when she ‘repaid’ the amount lent to Mr Fakhoury), which was whittled away to a balance of AUD$78.42 by 1 December 2004.
41.Quite apart from its misgivings regarding the provenance of the funds in the child’s account, the Tribunal finds completely implausible the review applicant’s assertion that she opened the account for the child’s benefit soon after her birth. In reality, it appears to have simply functioned as a concealed subsidiary account of her own, on which she appears to have drawn at will, often in quite substantial amounts. Whatever its intended function, the Tribunal rejects the review applicant’s claim that the account was established to benefit her child.
It appears that the Tribunal accepted that the parties had a genuine relationship, concluding at paragraph 42:
42.The Tribunal has given the review application careful consideration, and accepts that the parties have met in person, maintained regular telephone contact and have spent time together in Germany. Nonetheless, the Tribunal finds very limited evidence of social and familial recognition of the relationship, of financial and material exchanges, or that the parties are mutually committed to each other and to a shared life as husband and wife to the exclusion of all. Nor is it satisfied that they regard their relationship as long-term, as a source of emotional companionship and support, or that it is genuine and continuing. The Tribunal is not satisfied that the parties genuinely intend to live together as spouses within the meaning of regulation 1.15A at the time of application or at the time of this decision. The visa applicant therefore fails to meet the requirements of clauses 300.216 and 300.221 of Schedule 2 to the Regulations.
The Tribunal, however, concluded that the second applicant was not able to satisfy the relevant criteria. In this regard the Tribunal referred to clause 300.216, which requires that the parties genuinely intend to live together as spouses, and that the definition of "spouse" is set out in regulation 1.15A. That regulation provides as follows:
Regulation 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:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(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.
(4)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(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.
The Tribunal correctly identifies, at paragraph 34 of the decision, the question as to whether or not the applicants ‘have a genuine intention to live together as spouses’.
In analysing this issue, on the material before it, the Tribunal said as follows:
The financial aspects of the relationship
35.The Tribunal has seen very limited evidence pertaining to this criterion, even allowing for the fact that the parties reside in different countries and are engaged, rather than married. There is no evidence of joint assets or liabilities, of remittances of money or material assistance. There is no evidence that either party owes any legal obligation in respect of the other. It is claimed that the visa applicant is subject to work restrictions in Germany, and receives a small pension, which he supplements with occasional work as a mechanic. The review applicant is understood to be in receipt of a pension, and appears to have access to other sources of funds (see paragraphs 39-41 below), the provenance of which is unclear. An assurance of support has been issued by Mr Hassane Nahas in respect of the visa applicant.
The nature of the household
36.The Tribunal has seen no evidence in relation to this criterion, while noting that the visa applicant lives in Germany, whereas the review applicant lives in Australia, and they have not had the opportunity to establish a household together. Moreover, the review applicant has no family in Australia to care for her four year old daughter, whom she cannot lawfully remove from Australia. The review applicant’s capacity to visit the visa applicant is therefore limited, and she has managed to visit him on only two occasions. Accordingly, the Tribunal gives this factor little weight. However, there is some limited evidence before the Tribunal of the parties’ cohabitation in Germany.
The social aspects of the relationship
37.The review applicant has no family in Australia, and is alienated from her in-laws. The visa applicant has no family in Germany. Their respective families reside in Lebanon. They have provided photographs depicting themselves alone in a variety of locations and situations during the review applicant’s visits to Germany, and have supplied statutory declarations of support from a number of friends of the review applicant in Australia. The Tribunal finds very limited evidence that the parties present themselves and are recognised as a couple in Germany, Australia or Lebanon, or that they plan and engage in social activities together.
The nature of the persons' commitment to each other. Whether the relationship is genuine and continuing
38.The visa applicant claims to have met the sponsor in Lebanon on 5 September 2003, having known him previously as a neighbour, and were married in Berlin on 4 January 2004. They have provided evidence of continuing contact by letter and telephone, and the review applicant said that she felt more comfortable forming a relationship with someone that she knew, contrasting this situation with her marriage to Mr Zaydan, which was arranged by others.
Grounds of the application
The grounds of the application are:
a)The tribunal erred in treating reg.115A of the Migration Regulations as being applicable to the question posed by clause 300.216 namely whether at the time of application the “parties genuinely intend to live together as spouses” and thereby asked itself the wrong question;
b)The tribunal wrongly asked itself whether the parties were “spouses” as that term is used in reg.115A and not whether or not they intended to live as spouses once they were married;
c)The tribunal applied a test that answers the question of whether or not the parties are spouses rather than whether or not they intend to live as spouses in the future as required by cl 300.216;
d)The tribunal took into account irrelevant considerations namely the present financial aspects of the relationship, the present nature of their household and the present social status of their relationship; there was no evidence on which the tribunal could be satisfied that the parties did not genuinely intend to live together as spouses;
e)The decision of the tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds; and
f)The tribunal failed to accord procedural fairness.
Ground One
The first ground of the application is that the Tribunal erred in treating regulation 1.15A as relevant to the question posed under condition 300.216. The relevant condition requires that “(t)he Minister is satisfied that the parties genuinely intend to live together as spouses.”
There is nothing to indicate that the definition provided for in regulation 1.15A should not be applied, so far as it is reasonably able to be applied, to interpret the relevant clause. I do not find any basis for concluding that the Tribunal erred in having regard to regulation 1.15A, in order to define the nature of the relationship referred to in clause 300.216, when deciding whether or not the parties genuinely intended to live together in a relationship of that type. In these circumstances I find no merit in the first ground for review.
Grounds Two, Three and Four
In support of grounds 2 and 3, the applicant says that the Tribunal wrongly asked itself whether the parties were spouses within the meaning of regulation 1.15A, and not whether or not they intended to live as spouses once they were married.
The Tribunal, as set out above in paragraph 34 of their reasons, does correctly state the test that must be applied, namely whether or not the parties had a genuine intention to live together as spouses. There can be no argument that it is appropriate for the Tribunal to look at conduct in the past or events in the past as a guide, when the question of what the future is likely to hold. However, such a process requires care when the test to be applied is whether the parties intend to effect a significant change in their relationship or circumstances.
As referred to above in paragraphs 35 to 38, the tribunal considered various aspects of the applicants’ relationship. With respect to the financial aspects of the relationship, it is difficult to see what weight could be placed upon the lack of mingled finances when the parties are living in Germany and Australia respectively, both on very limited means, and therefore in circumstances where it would not be expected that at this stage of their relationship there would be remittances of money between them or intermingling of their finances. The Tribunal has not identified what weight it placed upon this aspect of the relationship, although presumably it places some significance upon it, as it was one of the limited matters recounted and discussed in the reasons. As I discussed in MZWDX v Minister for Immigration [2004] FMCA 881, past conduct may be relied upon when assessing the likelihood of future conduct, as was confirmed in the High Court in Minister for Immigration & Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.
In considering the nature of the household it appears that the tribunal has focused on a part of the definition of regulation 1.15A that is difficult to apply in the context of a prospective marriage visa case. To the extent that it is relevant to identify the nature of the households the parties are living in at present, primarily from the perspective of determining whether or not they appear to be in spousal relationships with others, the current circumstances are important. However, the past provide very little guide for the future once it is found that the parties are not living in a spouse like or intimate relationship with anyone else. The Tribunal does not appear to have considered under this heading the question of the nature of the household that the visa applicant and the first applicant intend to set up once the visa applicant comes to Australia.
The third matter considered by the Tribunal was the social aspects of the relationship. It would be very difficult for the parties to establish a social aspect to the relationship, given their respective living arrangements have provided very limited opportunity for them to spend time together.
The discussion by the Tribunal of the allegations relating to the payment of $10,000 does not make it clear whether the Tribunal finds that there was such a payment due which would characterise the application as a ruse. The findings of the Tribunal at paragraph 42 militate against a finding by the Tribunal that there was a payment for the purpose of entering into an arrangement to assist the second applicant to obtain a visa. The financial dealings of the applicant do not appear to have so impeached her credit that she was rejected generally.
When read as a whole, the considerations of the Tribunal appear to be almost entirely focused upon the past events and not upon the future intentions of the parties. In this regard, despite the Tribunal stating the correct test at paragraph 34, it appears not to have proceeded to apply it. I am not satisfied that this is an example of the Tribunal placing different weight upon the evidence before it, in the nature of that discussed in MBGM v Minister for Immigration [2004] FCA 1373 at 54, or Paul v Minister for Immigration (2001) 113 FCR 396 at 79.
For example, there was no consideration of:
a)What the incidents of the proposed relationship would be: whether it was intended to be monogamous, what relationship either has with others, what role the second respondent was to play with the applicant’s child, etc.
b)What arrangements the applicants intended to make to live together, if any. Whether they intend to stay with friends, obtain a house or flat together, live in Melbourne or in another city or town.
c)What roles each would take in the relationship. Would the second applicant work full time, was it intended the first applicant would work or be a homemaker. Do they intend to have children in the near future (given the first applicant has a child from a previous relationship).
d)Who would do the housework and how would it be divided.
e)The extent of emotional support. In a letter dated 27 September 2004, Juliette Hooper, the first applicant’s treating psychologist wrote:
She lives alones with her daughter and has no help from anyone. Rima suffers from a debilitating condition with (sic) causes her significant and severe back pain. This requires surgery and Rima has had to cancel this as she has no one to care for her daughter and no one to care for her post operatively as she needs to remain in bed for at least a week after the operation. Rima was hoping her new husband would be able to help her and look after her daughter and care for her during this difficult period. In addition, Rima’s daughter needs an operation to remove a prominent lump in her neck and is on the waiting list at the Royal Children’s Hospital. The worry about her daughter’s medical condition and her own medical problems, both of which require surgery and post operative care is causing Rima a great deal of anxiety and distress.
…
Rima speaks to her husband daily and there is nothing in her presentation to indicate that she is telling anything other that the trust about their relationship.
…
It is my opinion that this lady requires immediate support and assistance and this could best be provided to her by her husband whose application has been rejected but is appealing this decision. Rima is unable to have surgery until she has this support and in the meantime her physical and mental health is under enormous pressure.
f)Whether the parties see the relationship as long term.
All of these are matters arising from reg.1.15A when applied to the future.
As a result, I find that the tribunal has not asked itself the correct question, namely what is the ‘future’ intention of the parties, but, rather, appears to have limited its considerations to the current nature of the parties' relationship. Whilst the current nature of the relationship is clearly relevant, it is only one factor and is not determinative in the context of the case.
Ground Five
In support of this ground, the applicant argued that there was no evidence upon which the Tribunal could be satisfied that the parties did not intend to live together as spouses. The way in which this ground is drawn misconceives the function of the Tribunal. It is not for the Tribunal to be satisfied that the parties do not intend to live together as spouses in the future, but, rather, for the applicant to satisfy the Tribunal that she and the second applicant do intend to live together as spouses in the future.
As expanded upon at the hearing, it appears that the gravamen of this ground was not the question of whether or not the Tribunal could have been satisfied that they did not intend to live together as spouses, but, rather, the failure of the Tribunal to properly consider the facts and circumstances concerning proceedings that the applicant has been involved in, in the Family Court of Australia.
At paragraph 14 the Tribunal sets out that the applicant provided the Australian Family Court documents, and at the hearing she outlined that these included the materials and orders which restrain her from taking her child outside of Australia. The applicant says that the Family Court proceedings have been litigated on the basis of concerns by her current husband that if she leaves Australia with the child, she will take up her relationship with the second applicant and not return the child to Australia. However, the tribunal decision does nor recount the contents of the documents and they were not tendered at the hearing.
It is difficult to conclude that the circumstances surrounding the Family Court orders in this respect could not be significant and relevant in determining this visa application if they are as alleged by the applicant. The orders and material provide relevant evidence as to the applicant's current circumstances and significant explanation for the limited amount of time that she has with the second applicant. Whilst the Tribunal have identified that they received such documents, they have not mentioned them in the reasoning process, nor, it seems, retained any copies of them.
Whilst the tribunal is not bound by the findings or orders of the Family Court of Australia in other proceedings, a tribunal member would not lightly make findings inconsistent with facts or circumstances accepted by a court, either overtly, or implicitly, even if such findings were in other proceedings.
In this regard it appears to me that the Tribunal may well have failed to take into account significant relevant material which the applicant attempted to place before it.
However, in the absence of any evidence of the content of the material I am not able to make such a finding. Having regard to my findings above I do not need to consider adjourning to allow the applicant to file that material as she has succeeded on an alternative basis in any event.
Ground Six
In support of ground six, the applicant alleges that the Tribunal decision was irrational, illogical and not based on findings or inferences of facts supported by logical grounds. This was not expanded upon at the hearing and it does not appear to go beyond the matters set out above.
Ground Seven
The final ground raised by the applicant in her application was that the Tribunal failed to afford her procedural fairness. There is nothing on the material before me to indicate that the applicant was denied procedural fairness in this case (save the potential argument that may have flowed from Ground 5 if the applicant had produced the evidence referred to above).
Conclusion
I have found that the Tribunal has failed to, in substance, apply the correct test and ask itself the correct question with respect to this visa application.
In the circumstances, it is appropriate that writ certiorari issue, together with a writ of mandamus, requiring the matter to be reconsidered by the Tribunal, according to the law. In the circumstances of this case, it appears to me to be appropriate that the matter be heard and determined by a differently-constituted Tribunal.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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