Hanna v Minister for Immigration & Border Protection

[2015] FCCA 2856

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANNA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2856

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal gave information to the applicant at the hearing in accordance with s.359AA of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal erred in determining it was not required to consider the applicant’s application for a partner visa under the family violence provisions if it was not satisfied that the applicant and the sponsor were in a spousal relationship – whether the Migration Review Tribunal erred in finding that the applicant and the sponsor were not in a spousal relationship – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 357A, 359A, 359AA, 360, 474,
Migration Regulations 1994 (Cth) reg.2.01, 1.15A, Schedule 2 – cls.100.22, 100.221

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Kaur v Minister for Immigration and Border Protection [2014] FCA 1251
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant: JOSEPH HANNA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 800 of 2014

Judgment of: Judge Emmett

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

The applicant appeared via video link and had the assistance of an Arabic interpreter.

Counsel for the Respondents: Ms Rachel Francois

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 800 of 2014

JOSEPH HANNA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 4 March 2014 and handed down on 5 March 2014 (“the MRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a Partner (Migrant) (Class BC) visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. The background to this matter is accurately summarised in the first respondent’s written submissions, as follows:

   “2.    The applicant is a 33 year old male citizen of Lebanon.[1]  The applicant married the sponsor in Lebanon on 22 August 2010 after a short courtship of 22 days.[2]  The applicant applied for the visa on 5 October 2010.[3]  The sponsor returned to Australia without the applicant on 28 October 2010.[4]  On 10 June 2011, the applicant was granted the Partner (Provisional) (Subclass 309) visa which enabled him to travel from Lebanon to Australia on 28 June 2011.[5]  By letters dated 20 and 28 July 2011 the sponsor withdrew her sponsorship and claimed family violence.[6]

   By letter dated 9 August 2011, the Department notified the applicant that it had received information that his relationship was no longer continuing and invited him to comment or provide additional information in support of his application for the visa.[7]

   By letters dated 14 October 2011 and 14 December 2011, Mr Toufic Laba-Sarkis responded on behalf of the applicant and accepted that the relationship was no longer continuing but claimed the applicant was the victim of family violence and provided supporting evidence.[8]

   On 17 May 2012, the delegate referred the applicant’s ‘non-judicially determined claim of family violence’ to an independent expert pursuant to paragraph 1.23(10)(c)(i) of the Migration Regulations 1994 (Cth) (Regulations).[9]

   On 29 October 2012, after interviewing the applicant (among other things), the independent expert formed the opinion that the applicant was not the victim of family violence.[10]

   By letter dated 31 October 2012, the delegate wrote to the applicant and invited him to comment upon the independent expert’s adverse conclusions.[11]  The applicant responded by letter dated 27 November 2012 and, among other things, claimed the independent expert was biased and that there were problems with the interpreter.[12]

   The delegate refused the application on 2 January 2013.[13]  The delegate did not accept that the applicant’s letter of 27 November 2012 contained any new information or that there had been any problems with the interpreter or the independent expert.  Accordingly, pursuant to regulation 1.23(10)(c)(ii), the delegate was bound to accept the independent expert’s opinion as correct and refused the visa.

   On 16 January 2013, the applicant lodged an application for review of the delegate's decision with the Tribunal.[14]  On 5 February 2014, the applicant attended a hearing before the Tribunal.  The transcript indicates that [the applicant’s authorised representative] also attended the hearing.[15]  During the hearing, the Tribunal put to the applicant certain adverse information contained in a letter from a Dr Selim[16] and gave the applicant further time to respond.  On 19 February 2014, the Tribunal received further documents and evidence in support from the applicant.[17]

   On 4 March 2014, the Tribunal affirmed the delegate’s decision and relevantly found that there had never been a mutually shared commitment from the sponsor’s side of the relationship and that, accordingly, the applicant had never been the ‘spouse’ of the sponsor.[18]  That finding was based on the applicant’s evidence at the hearing about his wife’s behaviour and her reasons for the marriage.[19]

   [1] CB 39.

   [2] CB 37, T23.29

   [3] CB 1 to 42, cf 57.

   [4] CB 154.

   [5] CB 57.

   [6] CB 61 – 62.

   [7] CB 64

   [8] CB 67 to 76 and 83 to 94.

   [9] CB 98 to 108.

   [10] CB 112 to 129.

   [11] CB 132 to 135.

   [12] CB 136 to 146.

   [13] CB 149 to 164.

   [14] CB 165 to 177.

   [15] T3.38 (spelling of name), T4.10 (attendance).

   [16] CB 95, cf CB 121, CB 273 [30] and T29 to 31.

   [17] CB 275 [43], CB 210 to 266.

   [18] CB 268 to 277 at [52].

   [19] CB 276 [47] to [48].

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Partner (Migrant) (Class BC) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. At the time of the decision to grant or refuse a partner visa, the applicant was required to satisfy the requirements in cl.100.221 of Schedule 2 to the Regulations.

3. Clause 100.221(1) of Schedule 2 to the Regulations requires an applicate for a partner visa to meet one of the five alternative requirements provided at cls.100.221(2) to (4A) of Schedule 2 to the Regulations.

4. Relevantly, cl.100.221(2) of Schedule 2 to the Regulations requires that an applicant for a partner visa be the spouse or de facto partner of the sponsoring partner. Further, cl.100.221(4) provides for an exception to the requirement that an applicant for a partner visa be the spouse or de facto partner of the sponsoring partner in circumstances where the applicant has suffered family violence committed by the sponsor.

5. Clauses 100.221(2) and (4) of Schedule 2 to the Regulations are as follows:

   “100.22 Criteria to be satisfied at time of decision

   (2) The applicant meets the requirements of this subclass if:

   …

   (b) the applicant is the spouse or de facto partner of the sponsoring partner;

   …

   (4) The applicant meets the requirements of this subclass if:

   (c) after the applicant first entered Australia as the holder of a visa mentioned in paragraph (a) – either or both of the following circumstances applies:

   (i) either or both of the following:

   (A) the applicant;

   (B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner.”

6. Section 5F of the Act defines ‘spouse’ as follows:

   “(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2) For the purposes of subsection (1), persons are in a married relationship if:

   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i) live together; or

   (ii) do not live separately and apart on a permanent basis.”

7. Further, r.1.15A of the Regulations prescribes matters that must be taken into account in determining whether a person is the spouse of another person. These include the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

8. Under s.338 of the Act, a decision to refuse to grant a partner visa is a decision which may be reviewed by the second respondent.

9. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A, 359AA and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   359AA Information and invitation given orally by Tribunal while applicant appearing

   (1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) if the Tribunal does so--the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

   360  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. The Delegate considered whether the applicant met any of the alternative criteria in cl.100.221 of Schedule 2 to the Regulations for the grant of a partner visa.

2. The Delegate found that the applicant was not, at the time of the Delegate’s decision, the spouse of the sponsoring partner. Accordingly, the Delegate found that the applicant did not satisfy the criteria at cl.100.221(2) of Schedule 2 to the Regulations.

The MRT’s review and decision

1. On 16 January 2013, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 24 December 2013, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 5 February 2014 to give oral evidence and present arguments.

3. On 5 February 2014, the applicant attended the MRT hearing and gave evidence.

4. The MRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

5. On 19 February 2014, the applicant provided post-hearing material in support of his review application, including a statement from the applicant, various letters in support, and photographs of the applicant and the sponsoring partner together in Lebanon.

6. The issue before the MRT was whether or not the applicant was the spouse of the sponsoring partner for the purposes of cl.100.221(2) of Schedule 2 to the Regulations.

7. The MRT explained to the applicant that, to establish a spousal relationship, it had to be satisfied that the applicant and his sponsoring partner were mutually committed to a shared life as husband and wife, to the exclusion of all others. The MRT explained that, if it was not relevantly satisfied, it was not required to consider the issue of family violence advanced by the applicant.

8. The MRT took into account the matters prescribed in r.1.15A of the Regulations in determining whether the applicant was in a spousal relationship with the sponsor, and found as follows:

   a)That on the evidence before the MRT, it appeared that the applicant’s sponsoring partner had decided that she was not committed to the relationship soon after the marriage.

   b)In relation to the financial aspects of the relationship, the MRT was not satisfied that “there was a joint financial plan”.

   c)In relation to the nature of the household, the MRT found that though the evidence indicated that the applicant and the sponsor cohabitated for a short period of time immediately after their marriage, they were ultimately unable to establish a household. The MRT also found that the applicant and the sponsor did not live together, and were in fact living separately and apart on a permanent basis.

   d)That the MRT could not place much weight on the social aspects of the relationship.

9. Ultimately, the MRT was not satisfied on the evidence before it that the applicant and his sponsoring partner had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing. Accordingly, the MRT found that the applicant was not the ‘spouse’ of the sponsor for the purposes of the Act and the Regulations.

10. Given the above, the MRT found that the applicant did not meet the requirements in cl.100.221(2)(b) for the grant of a Partner (Migrant) (Class BC) visa. Therefore, the MRT affirmed the decision of the Delegate to not grant the applicant a Partner (Migrant) (Class BC) visa.

The proceeding before this Court

1. The applicant was unrepresented before this Court and appeared via video conference from Long Bay Correctional Centre. The applicant had the assistance of an Arabic interpreter who was present in Court. 

2. On 27 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I explained to the applicant that the only issue before this Court was whether or not the decision of the MRT was made according to law. The applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

3. The applicant then confirmed that he wished to continue with his application for judicial review of the MRT’s decision. Accordingly, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support. The applicant was also provided with the contact details of legal services providers and interpreting and translation services.

4. At the commencement of the hearing, the applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court in support of his application.

5. The applicant confirmed that he relied on the grounds contained in his initiating application, filed on 26 March 2014, as follows:

   “1. The Migration Review Tribunal had evidence that indicates that I was committed in my marriage and that my wife and I lived together and the evidence I submitted cannot be disputed. The tribunal erred in law on the basis of the material before it does not satisfy the commitment.

   2. The Tribunal failed to take into consideration the issue of domestic violence.”

6. The applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. At the heart of the applicant’s complaints is his disagreement with the findings of the MRT that the applicant and the sponsor were not, both at the time of the visa application, and at the time of the decision, mutually committed to a shared life as husband and wife to the exclusion of all others, and that their relationship was not genuine and continuing.

8. The applicant’s complaints may be summarised as follows:

   a)the MRT did not take his evidence into consideration;

   b)a letter from Dr Selim, submitted by the applicant’s wife to the Department of Immigration and Border Protection (“the Department”), was forged;

   c)that an Apprehended Violence Order (“AVO”) against him was later dismissed; and

   d)that the MRT, at the behest of the sponsor, ignored his claim that he had suffered family violence.

9. A fair reading of the MRT’s decision record does not support any of the applicant’s complaints. For the reasons below, the MRT’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave.

10. The MRT accepted that the applicant and the sponsor had married in Lebanon on 28 August 2010, and that the sponsor returned to Australia on 28 October 2010. However, the MRT referred to a letter from the sponsor to the Department, dated 28 July 2011, informing the Department that she wished to withdraw her sponsorship for the applicant’s partner visa as their relationship had broken down.

1. On 17 August 2011, the New South Wales Police applied for an AVO against the applicant on behalf of the sponsor. An interim AVO was made against the applicant and remained in force for twelve months.

2. On 17 October 2011, the applicant’s authorised representative wrote to the Department requesting that the applicant’s application for a partner visa be considered under the family violence provisions. The material provided in support was forwarded by the Delegate to an independent expert to assess whether the applicant had been the victim of family violence.

3. The MRT referred in some detail to the report of an independent expert, dated 29 October 2012, as to whether the applicant had experienced family violence perpetrated by the sponsor. The independent expert’s report concluded that the applicant had not experienced family violence from the sponsor.

4. The MRT also referred in some detail to the evidence the independent expert had relied on in forming the independent expert’s opinion, and in particular, a letter from Dr Selim dated 28 October 2011. Dr Selim’s letter referred to complaints made by the sponsor to her mother whilst the sponsor was still in Lebanon that the sponsor was severely stressed and unable to cope with her new husband, the applicant, who was said to have restricted her from all activities and locked her up inside the house. Dr Selim’s letter also referred to a statement by the sponsor’s mother that, since the applicant’s arrival in Australia, the sponsor’s family had been threatened by the applicant, and that such threats included life threats.

5. The information in Dr Selim’s letter was given to the applicant in accordance with s.359AA of the Act for comment during the hearing. The MRT noted the applicant’s response that what was stated in that letter was not true.

6. In his oral submissions to this Court, the applicant appeared to assert that the MRT should have given to him a copy of Dr Selim’s letter for his consideration and comment. However, it is well established that information that may relevantly undermine an applicant’s claims may be given to the applicant for comment either in writing in accordance with ss.359A of the Act, or orally at the hearing in accordance with s.359AA of the Act.

7. It was conceded by counsel for the first respondent, Ms Francois, that the information in Dr Selim’s letter contained adverse information that may have undermined the applicant’s claims. Accordingly, the requirements under s.359A of the Act were triggered. However, if the MRT gave that information to the applicant at the hearing in accordance with s.359AA of the Act, there was no requirement on the part of the MRT to give that information in writing to the applicant in accordance with s.359A of the Act.

8. Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. In support of the first respondent’s submission that the MRT complied with the requirements of s.359AA of the Act in giving the information in Dr Selim’s letter to the applicant for comment at the hearing, the first respondent read the affidavit of Katherine Nicole Hooper, affirmed on 5 June 2014. Ms Hooper’s affidavit annexed a copy of the transcript of the hearing before the MRT.

10. The transcript makes clear that the information in Dr Selim’s letter was given to the applicant in accordance with s.359AA of the Act. In explaining the relevance of the letter to the applicant, the MRT stated that the letter could lead it to affirm the Delegate’s decision if the contents of the letter were accepted by the MRT. Whilst by itself that explanation may be brief, the MRT also asked the applicant if he and the sponsor had experienced any problems in Lebanon. The MRT informed the applicant that he could respond to the MRT’s question during the hearing, or alternatively, that he could respond in writing after the hearing. The MRT explained to the applicant that it was the MRT’s usual practice to give an applicant two weeks to provide further evidence. The applicant was then given two weeks to provide any further information. The applicant provided post-hearing material to the MRT, including a statement from the applicant dated 8 February 2014. The MRT referred to the applicant’s post-hearing material in making its findings.

11. In the circumstances, I am satisfied that the MRT complied with s.359AA of the Act in giving the adverse information in Dr Selim’s letter, which had the potential to undermine the applicant’s claims, to the applicant for comment.

12. In any event, for the reasons that follow, I accept counsel for the first respondent’s submission that the MRT’s decision record makes clear that its ultimate adverse findings in respect of the applicant arose primarily from the applicant’s own evidence and were not based on Dr Selim’s report. In particular, the MRT noted that the applicant agreed that the sponsor was not committed to the applicant, and that the sponsor had decided that the marriage would not succeed even before the applicant had arrived in Australia. The MRT noted that the evidence before it strongly indicated that the sponsor had rejected the applicant. The MRT explained to the applicant that his and the sponsor’s commitment to the relationship had to be mutual, and that the commitment of the applicant alone was insufficient to establish a genuine spousal relationship for the purposes of the Regulations.

13. The MRT noted the applicant’s evidence that, once he had arrived in Australia, the couple did not have a relationship and that it was clear to him that the sponsor was no longer interested in him as a partner. The MRT also noted the applicant’s evidence that the sponsor’s mother had told him that the sponsor had gone back to her ex-boyfriend after she came back to Australia from Lebanon. Further, the MRT noted that the applicant told the MRT that the couple had married quite quickly, and indeed, the evidence before the MRT was that the courtship between the applicant and the sponsor was some twenty-two days.

14. The independent expert’s report also referred to evidence from an individual, Tony Barakat, as well as a psychiatrist who had seen the sponsor on two occasions, Dr Allam. However, the evidence of Mr Barakat and Dr Allam was not information that was capable of amounting to a rejection, denial or undermining of the applicant’s claims (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]). Accordingly, it was not information that the MRT was required to give to the applicant for comment.

15. In the circumstances, the MRT’s finding that the sponsor was never genuinely committed to the applicant, had married the applicant due to family pressure, and then left the marriage as soon as she reasonably could, was open to the MRT on the evidence and material before it, and for the reasons it gave. Such findings led inevitably to the MRT’s conclusion that the relationship was not genuine and continuing and, based on the evidence of the applicant alone, was not to the exclusion of all others.

16. Having regard to the considerations prescribed in r.1.15A of the Regulations, the MRT found that the applicant and the sponsor were not mutually committed to a shared life as husband and wife to the exclusion of all others, that the relationship was not genuine and continuing, and further, that the applicant and the sponsor were not living together, and were in fact living separately and apart on a permanent basis. Accordingly, the MRT found that the relationship between the applicant and the sponsor did not satisfy any of the requirements for a married relationship in s.5F(2)(b) - (d) of the Act. Accordingly, the MRT found that, at the time of its decision, the applicant did not satisfy the definition of ‘spouse’ within the meaning of s.5F(1) of the Act and therefore did not meet the requirements in cl.100.221(2)(b) of Schedule 2 to the Regulations for the grant of a partner visa.

17. Having concluded that the applicant and the sponsor were not in a spousal relationship, the MRT did not proceed to consider whether or not the applicant had suffered family violence committed by the sponsor. The MRT made that course clear to the applicant at the outset of its hearing. This is clear from the transcript of the MRT hearing, whereby the MRT member said as follows:

    “40.  I will be considering whether this was a genuine relationship, so I will be talking to you about how you met the sponsor and how the relationship developed. Before I could look at the exception relating to family violence, I need to be satisfied that this was a genuine marriage. If I am not satisfied that you married the sponsor because you were mutually committed to one another, and there is no need for the tribunal to consider the issue of family violence.

    Now, under regulation 1.15A, I have to be satisfied that there was, at the time of application, a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and the couple live together and do not live separately and apart on a permanent basis. Do you understand?”

18. The MRT’s finding that the applicant and the sponsor were not mutually committed to the relationship was dispositive of the applicant’s claims. The applicant was not capable of satisfying cl.100.221(4) of Schedule 2 to the Regulations, being the sub-clause relating to family violence, in circumstances where the MRT had found that the applicant was never the spouse of the sponsor within the meaning of the Act.

19. Accordingly, the MRT was correct to find that the question of family violence did not arise in those circumstances. In Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 at [43] – [44], Murphy J stated as follows:

    “[43] As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence: see Alsalem at [17]; Yang v Minister for Immigration and Border Protection and Another [2014] FCCA 20 at [28]–[36]; Guven v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 311 at [24]–[25]; Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [42].

    [44] In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.”

20. It is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J).

21. The MRT’s findings were open to it on the material and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

22. A credit finding is sound if it was “open to [the MRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

23. In the circumstances, the grounds of the applicant’s application and the claims made by the applicant in oral submissions do not identify any jurisdictional error on the part of the MRT and appear more to be a disagreement with the findings and conclusions of the MRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

24. It was for the applicant to satisfy the MRT, being the relevant decision-maker, that he was the spouse of the sponsor. If the MRT, as the relevant decision-maker was not so satisfied, pursuant to s.65(1)(b) of the Act, the relevant visa application must be refused.

25. There is nothing in the MRT’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

Conclusion

1. A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 November 2015