Haiba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 250
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haiba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 250
File number(s): SYG 2794 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 12 November 2021 Catchwords: MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant partner visa – whether open to Tribunal to find it was not satisfied the applicant considered his marriage with the sponsor to be genuine or long term – no jurisdictional error. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth), ss 5F, 476
Migration Regulations 1994 (Cth), reg 1.15A, Sch 2, cl 820.211(2)(a), Sch 3, criteria 3001, 3003, 3004
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 5 November 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Counsel for the First Respondent: Ms N Laing, by telephone Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 2794 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAID FATHALLA ABDELGHAFFAR AHMED HAIBA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,328.
THE COURT NOTES THAT:
3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).
BACKGROUND
The applicant is a citizen of Egypt. He entered Australia in October 2011 as the holder of a Business (subclass 456) visa, which was valid until 13 November 2011. In November 2012 the applicant applied for a Protection (subclass 866) visa, and this was refused on 1 March 2013. On 27 March 2014 the applicant applied for a Partner visa on the basis that he was married to an Australian citizen (Sponsor).
To have been entitled to be granted a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that 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 have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
According to the Tribunal’s reasons for decision,[1] the applicant claimed he and the Sponsor met at an RSL club. The Sponsor used to attend the RSL club with her mother when her mother played the poker machines, although the Sponsor did not play the poker machines. The Sponsor went with her mother because the Sponsor suffered from mental illness, and could not stay at home alone. The applicant and the Sponsor developed a relationship and married each other.
[1] CB228, [10]
The applicant supported the application for a Partner visa with statutory declarations made by two supporting witnesses, both of whom stated they are neighbours of the Sponsor and applicant. One said he has known the Sponsor for about five years; and the Sponsor and applicant “are our neighbours and I see them often and we spend a lot of time in each others [sic] home”. The witness also said: [2]
I think this is a genuine marriage. [The Sponsor] is very happy now and she and [the applicant] love each other. They were both very sad when their baby died but they helped each other.
[2] CB58
The second supporting witness said:[3]
I know then [sic] because we are neighbours and spend a lot of time together having coffee. I really believe that they have a good marriage because I see them together all the time. I think they love each other and this marriage will last.
[3] CB60
TRIBUNAL’S REASONS
The Tribunal accepted the applicant and Sponsor were validly married on 14 June 2013.[4] The Tribunal also accepted or assumed or found the following:
[4] CB228, [9]
(a)The applicant has a son born in 2010 to a woman in France. The applicant did not disclose this in his application for a Partner visa.[5]
[5] CB228, [14.a.]
(b)The applicant and Sponsor both answered “no” to the question whether the Sponsor had sponsored another spouse. The Sponsor had sponsored her first husband.[6]
[6] CB228, [14.b.]
(c)At times during the hearing the applicant was evasive when answering questions, and gave self-contradictory answers. The Tribunal referred to the applicant stating that the applicant’s mother-in-law’s husband introduced the Sponsor to the applicant, but the applicant did not know the husband’s last name; the applicant changed the evidence he had given about the frequency with which he went out at night; and the applicant said he had won $30,000 at the RSL club “about four or five months ago”, but later said he had not been to the RSL club for two years.[7]
[7] CB225, [15]
(d)In 2009 the applicant and his first wife in Egypt separated, and the applicant went to Paris with the intention of working and living there. At that time the applicant and his first wife had three children. While in Paris the applicant had a relationship with a woman. The applicant returned to Egypt in 2010 and reconciled with his first wife.[8]
[8] CB229, [16]
(e)While in Egypt the woman with whom the applicant had a relationship in Paris gave birth to a son, and in 2011, when the applicant was living with his first wife in Egypt, the applicant had a fourth child with his first wife.[9]
(f)The applicant divorced from his first wife in October 2011, a month before he arrived in Australia.[10]
(g)The applicant had “two periods of unlawfulness since arriving in Australia” in 2011, one from 14 November 2011 to 6 November 2013, and one from 10 April 2013 to 15 January 2014.[11]
(h)The applicant lacks credibility. The Tribunal relied on findings that the applicant had lodged a protection visa application in which the applicant made false claims, and gave evidence of this of his own accord to the Tribunal; the applicant disregarded Australian migration laws by remaining in the country unlawfully; and the applicant gave evidence that at times was internally inconsistent. The Tribunal said: [12]
If he is willing to misrepresent his circumstances or mislead in one visa application, and to live in Australia non-compliant with his visa conditions as an unlawful non-citizen, it is not unreasonable to think that he may be misrepresenting himself in some matters with regard to the application that is the subject of this review, that is, claiming to be in a genuine married relationship when he is not.
(i)When the applicant met the Sponsor he was aware of her mental illness, and “he entered into the marriage with her for the purpose of pursuing a positive migration outcome”.[13]
(j)The applicant’s time in France was for the purpose of migrating there; and the reason the applicant did not apply for permanent residency in France “is because the mother of the child that was born there (and is his child) has refused to provide him with a birth certificate with his name on it as the father”.[14]
(k)The applicant and Sponsor have a daughter who was ten weeks old at the time of the Tribunal’s decision.[15]
[9] CB230, [17]
[10] CB230, [17]
[11] CB230, [20]
[12] CB230, [20]
[13] CB230, [21]
[14] CB230, [21]
[15] CB233, [37]
The Tribunal’s findings and observations in relation to the matters identified in reg 1.15A(3) of the Regulations are as follows.
Financial aspects of the relationship
The Tribunal did not consider the parties share or have joint finances and manage their finances in a way that is considered commensurate with that of a genuinely married couple in a long term relationship. The Tribunal found the applicant controls the finances, and that he may not fully disclose his financial position to the Sponsor.[16] The Tribunal appeared to rely on the applicant’s claiming to have won a jackpot of $30,000, $28,000 of which was paid to him by cheque, and $2,000 in cash. The applicant said the $28,000 was not paid into a joint bank account, but the Sponsor banked the $28,000 into the applicant’s personal bank account. The Tribunal found the applicant gave no reasonable explanation why he would not share the jackpot with the Sponsor.[17] The Tribunal recorded the applicant’s evidence that he used $8,800 of money he inherited to buy a car, and the Tribunal also noted the Sponsor’s evidence that she was aware her husband had bought a car.[18]
[16] CB232, [30]
[17] CB232, [29]
[18] CB231, [28]
The Tribunal noted the applicant and Sponsor had provided bank statements in relation to a joint bank account they held with the Commonwealth Bank of Australia, joint electricity statements, joint car insurance, and joint Family and Community Services statements.[19] The Tribunal also noted the applicant and Sponsor gave consistent evidence they live in the same apartment “that is provided to the applicant [sic] by the government and that the rent is deducted from her fortnightly Centrelink pension payments”. The Tribunal gave little weight to this evidence; and the Tribunal appears to have relied on what it said earlier in its reasons:[20]
The Tribunal acknowledges that some documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine. The fact that the parties reside at the same address does not mean they have established a joint household. The fact that they put their names on various documents, bills or receipts does not mean they genuinely share their financial resources. Oral evidence was given at the hearing that seems to indicate there are significant financial matters about the applicant of which the sponsor is unaware. Utilities companies and phone companies that issue receipts in joint names make no assessment whether both parties had contributed the funds or are jointly liable to pay any invoices. The fact that they took some photographs together does not mean they are committed to the relationship. That is, if the relationship was not genuine but a person wished to obtain evidence to convince Immigration that it was, the same documents could have been obtained. As such, the Tribunal does not consider the documentary evidence to be dispositive of the issues at hand.
[19] CB231, [27]
[20] CB231, [22]
Nature of the household
The Tribunal was not satisfied the parties share a household in a manner commensurate with that of a genuine married couple with a mutual commitment to the relationship.[21] The Tribunal made that finding in light of the following:
(a)The Sponsor did not know where in Egypt the applicant’s four children lived; and, after the Tribunal informed the Sponsor that if she was unsure of anything she could say so, but if she remembered later she could give an answer, the Sponsor later said she remembered the applicant has a child in Paris.
(b)The Sponsor’s two children used to visit the applicant and Sponsor, but they ceased visiting because the Sponsor started to have feelings she would harm them. (In a separate statement the Sponsor said the Department of Family and Community Services had taken her children away.) In response to the Tribunal’s question why the applicant would be having children with the Sponsor if he was fully aware of the Sponsor’s mental state and that she might harm their children, the applicant said it was not all the time the Sponsor had these episodes; that she was fine at the moment; and that sometimes he joked with her that he is going to take their daughter and live in Egypt, in response to which the Sponsor said the applicant could not because the Sponsor could not live without her daughter. The Tribunal found this to be an “extraordinarily cruel thing to say to a woman with a serious mental illness and has had two children already taken away”; and the Tribunal did “not consider that a suggestion such as this, and that he thinks it is a joke, is indicative of the applicant being caring and supportive of his wife”.[22]
(c)The Tribunal found inadequate the evidence the applicant gave in relation to the Tribunal’s question why, given he already had five children, he would have a child with a woman “who cannot care for them”. The applicant said he was living alone, getting bored, he had nothing to do, so a child is always good in a person’s life; and that even when married people have differences, they can get over it for the sake of the child. The evidence the Tribunal found to be inadequate was the applicant’s response to the Tribunal’s putting to the applicant that the applicant did not get over the difficulties he had with the mothers of his other children for the sake of those children. The applicant said that the Sponsor “has got special circumstances and no-one supports her but him”. The Tribunal said it considered the applicant’s answer about children helping couples get over their difficulties did not support his claim “and he simply deflected the question and did not adequately answer it when pressed as he divorced his previous wife, claims to have no contact with her, and has little if any contact with the mother of his child in Paris”.[23]
[21] CB233, [38]. At [31] the Tribunal said it was satisfied the applicant and Sponsor share a household in the manner of a couple in a genuine married relationship. That is an obvious typographical error.
[22] CB232, [34]
[23] CB232-233, [35]
The Tribunal made the following finding:[24]
The Tribunal has serious concerns about the applicant's motivation for having a child with the Australian citizen sponsor and considers it probable, in the circumstances and having considered the oral evidence he gave, that the applicant had a child with her to help his visa application and not because he considers they are in a genuine married relationship.
[24] CB233, [36]
The Tribunal also referred to evidence about who was present when two women from a government agency come to the house to help the Sponsor manage medical conditions of the applicant’s and Sponsor’s daughter. The Tribunal made the following findings:[25]
The parties were asked if they are both present when the women come over and said only the applicant [sic] sees them because the sponsor [sic] is asleep during the day because he looks after the baby at night. The baby was in hospital for four days from Monday 21 August 2017 and it is accepted on the evidence that she has some health problems, including that she is losing weight and has now been referred to a specialist because of some swelling on one side of her heart. The Tribunal considers it reasonable to think that the applicant would make an effort to participate in these sessions with the women who help his wife and places negative weight against the fact he doesn't because he is asleep.
[25] CB233, [37]
Social aspects of the relationship
The Tribunal was not satisfied the applicant and Sponsor undertake or plan joint social activities together, or that they represent themselves to both their families as being genuinely married.[26] This finding was made in light of the following specific findings:
(a)The applicant gave self-contradictory answers to questions about when and with whom he went to the RSL club.[27]
(b)The Tribunal accepted the Sponsor probably does not go out socially unless she has to, which the Tribunal considered to be “entirely reasonable in the circumstances”, given the Tribunal accepted the Sponsor suffers from schizophrenia and takes medication and is monitored by medical professionals at least once a month, and that she has a ten week old daughter.[28]
(c)The parties provided no evidence their relationship is declared socially. The Tribunal gave no weight to the statements given by the supporting witnesses other than to accept the witnesses were neighbours; and the Tribunal gave no weight to those statements “[b]ecause of the credibility concerns the Tribunal has about the claims and evidence of the applicant”. The Tribunal also noted that the applicant and Sponsor do not live near the witnesses anymore, and no additional evidence was provided that indicates they socialise together with them.[29]
(d)The Tribunal noted there was “adverse information put to the applicant”, being an allegation that the relationship between the applicant and Sponsor was contrived. The applicant said he believed the allegation was made by the Sponsor’s brother who has schizophrenia. The Tribunal said “[n]o negative weight has been given to the allegation, as it is not considered to be reliable evidence”.[30] The Tribunal accepted, on the basis of evidence put before it that the Sponsor’s brother is a schizophrenic. The Tribunal said that if, as claimed, the Sponsor’s brother was the person who made the allegation “there has been no indication he supports the relationship or considers [it] to be genuine in the form of evidence from him”;[31] and the Tribunal did not consider the Sponsor’s brother’s seeing the Sponsor every day, while the applicant is asleep (on the Sponsor’s evidence) as supporting the relationship and considering it genuine.[32]
(e)There was no evidence from the Sponsor’s mother or the Sponsor’s mother’s husband that supports the marriage, or any evidence from the Sponsor’s mother or the Sponsor’s mother’s husband that they consider the marriage to be genuine.
(f)The Sponsor gave evidence that her brother takes her and her daughter to the Sponsor’s mother, and the mother loves the Sponsor’s daughter, but there was “no claim that the applicant goes with them and no evidence provided that he does”. The Tribunal found the applicant does not accompany the Sponsor, her brother, and the Sponsor’s daughter, when they visit the Sponsor’s mother.[33]
[26] CB234, [47]
[27] CB233, [40]
[28] CB233, [41]
[29] CB232-233, [42]
[30] CB234, [44]
[31] CB234, [45]
[32] CB234, [45]
[33] CB234, [46]
Nature of persons’ commitment to each other
The Tribunal made the following findings:[34]
The parties had a baby in 2014 who was stillborn and, on the evidence, the Tribunal accepts this. They have now had another baby . . . born on 19 June 2017. Whilst this may, on the face of it, demonstrate a commitment to the relationship, given the concerns the Tribunal has expressed in this decision and the conclusion that has been reached about the applicant's lack of credibility, in this matter the birth of these two children is not considered to be strong evidence that the parties have a mutual commitment to a genuine married relationship. The Tribunal's view is that the sponsor is committed to the relationship, but the applicant is not and does not consider it to be long-term.
[34] CB234, [49]
Waiver of Schedule 3 criteria
The applicant did not hold a substantive visa at the time he applied for the Partner visa. That meant that Schedule 3 criteria 3001, 3003, and 3004 of the Regulations applied unless the Minister is satisfied there are compelling reasons for not applying those criteria.
The Tribunal found that although it made findings that the applicant does not meet cl 820.211(2)(a) of Schedule 2 to the Regulations, it considered that, on the evidence, the birth of the applicant’s daughter justified waiving the criteria.
GROUNDS OF APPLICATION
The applicant, who is not legally represented, relies on the following grounds of application:
1.Contrary to the Tribunal's decision I do meet compelling reasons as I have a child and the Tribunal misapplied the law and misinterpreted the term “compelling”.
2.The Tribunal erred in law because it misunderstood the operation of 820 and I believe that the Tribunal made an error of law and failed to conclude that our relationship is not genuine instead our relationship is indeed genuine and such constitutes compelling reasons which were overlooked by the Tribunal.
At the hearing before me the applicant submitted he has been married since 2013, and he is living with his wife; he had a boy who passed away in 2014; and he has a daughter who is five years old “living with us”; the applicant looks after his daughter when his wife takes medication; he and his wife have a happy life; and there are no problems between them. The applicant said he wanted to provide a medical report to show that both his wife and his wife’s brother are taking medication, and they are better. I indicated to the parties that, subject to relevance, I will assume what the applicant said about the contents of the medical report is true. I read out each of the two grounds contained in the application, and asked the applicant whether he wished to make any submissions in relation to those grounds. The applicant repeated the substance of what he had already submitted, namely, that he and his wife are living together as a family, and there are no problems between them.
Ground 1
Ground 1 appears to misunderstand the Tribunal’s decision. The Tribunal found that the birth of the applicant’s daughter was a compelling circumstance for the purposes of deciding to waive the Schedule 3 criteria.
It is possible that ground 1 is intended to claim the Tribunal failed to consider, or failed properly to consider, the fact that the applicant and Sponsor had a child. If that is what ground 1 is intended to claim, I would not accept it. The Tribunal accepted the applicant and Sponsor have a daughter; and the Tribunal made specific findings about the applicant’s motivation for deciding to have a child with the Sponsor.
Ground 1, therefore, fails.
Ground 2
This ground claims the Tribunal misunderstood the operation of subclass 820 of Schedule 2 to the Regulations, and made an error of law. Ground 2 does not, however, identify the understanding the Tribunal had of the subclass, and the manner in which any such understanding did not conform to subclass 820 of Schedule 2 to the Regulations; nor does the ground identify the error of law the Tribunal made.
Ground 2 also claims the Tribunal failed to conclude the applicant’s and Sponsor’s relationship was genuine when the relationship is genuine. That is an appeal to the merits and, for that reason, the ground does not disclose any jurisdictional error.
Ground 2 may be taken to claim it was not reasonably open to the Tribunal not to accept the applicant and Sponsor were in a genuine spousal relationship. I would not, however, accept such ground. The Tribunal identified the matters on which it relied for concluding it was not satisfied the applicant considered the relationship with the Sponsor to be genuine or long term. The Tribunal particularly relied on the applicant’s migration history in France in 2009 and 2010; on the Tribunal’s finding that the applicant’s decision to marry the Sponsor, a person whom he knew suffered from mental illness, and to have a child with the Sponsor in circumstances where the Sponsor could not look after, or had difficulties looking after, the children she had from a previous marriage, was motivated by his desire to achieve a migration status in Australia; on the absence of evidence that the applicant accompanied the Sponsor, the Sponsor’s brother, and the Sponsor’s daughter, when they visited the Sponsor’s mother; the applicant’s not knowing the surname of the Sponsor’s mother’s husband; and the Tribunal’s finding, based on the matters the Tribunal identified, that the applicant lacked credibility.
Ground 2 also fails.
Other matters
The applicant’s submission to me that he and his wife are married, they live together, they have a child, and they have no problems between them, is an appeal to the merits of the applicant’s application for a Partner visa, and, for that reason, discloses no jurisdictional error. It was for the Tribunal to determine whether the applicant satisfied the criteria for the grant of a Partner visa.
The medical report to which the applicant referred at the hearing before me about the current condition of the Sponsor and the Sponsor’s brother, is not relevant to whether the Tribunal made a jurisdictional error, because these are not matters that were before the Tribunal.
Finally, at the hearing I asked counsel for the Minister whether the Tribunal’s finding that the Sponsor was committed to the relationship was relevant in assessing whether the applicant also was committed to the relationship and, if so, whether the Tribunal took its finding into account. Counsel for the Minister submitted the Tribunal did take into account its finding that the Sponsor was committed to the relationship. In my opinion, it is not possible to be satisfied the Tribunal did not take into account that finding. On the contrary, I am satisfied that, in assessing whether the applicant considered his marriage with the Sponsor to be genuine or long term, and in making the adverse credibility findings it made against the applicant, the Tribunal did take into account its finding that the Sponsor was committed to the relationship.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
The Minister applies for costs, and that I should fix those costs in the amount of $7,328. The applicant said that he would have to borrow money to pay an order for costs. I informed the applicant that an inability to pay costs is usually not an adequate reasons for not making an order for costs in favour of a successful party. I am satisfied the applicant should pay the Minister’s costs, and that $7,328 is a fair indemnity of the costs the Minister would have incurred in successfully resisting the application. I propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,328.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) does not constitute or continue any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 12 November 2021
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