Hijazi v Minister for Immigration

[2018] FCCA 2925

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIJAZI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2925

Catchwords:
MIGRATION – Application for judicial review – Partner (Temporary) (Class UK) Subclass 820 visa – Subclass 801 visa – whether the Tribunal fell into jurisdictional error – whether the Tribunal denied the Applicant procedural fairness – no error apparent – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Cases cited:

R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Re Reufgee Tribunal; Ex Parte Aala [2000] HCA 57
SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69

Applicant: FAHEEM HASSAN HIJAZI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1056 of 2016

Judgment of: Judge McNab

Hearing date: 13 June 2018

Date of Last Submission: 13 June 2018

Delivered at: Melbourne

Delivered on: 17 October 2018

REPRESENTATION

Applicant in person

Counsel for the Respondents: Mr B. Petrie

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 20 May 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1056 of 2016

FAHEEM HASSAN HIJAZI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 20 May 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 29 April 2016. The decision of the Tribunal affirmed the decision of a delegate of the First Respondent dated

   
   

   19 November 2014 in respect of a refusal to grant the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘Visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal decision appealed from concerned a finding that the Applicant and Sponsor were not in a de facto relationship for 12 months prior to the date of the application.

2. The Applicant had also applied for a Subclass 801 visa; both visa applications were considered by the delegate.[1] The Applicant sought to have the decision in relation to both visas reviewed.[2]

   [1] Court Book 176 – 181.

   [2] Ibid 202.

3. The Applicant relies on thirteen grounds of review, which are extracted from his originating application and replicated exactly below:

   1. I am applying Judicial Review at Federal Circuit Court under the s.476 of the Migration Act 1958 related to Federal Circuit Court Regulations as Tribunal decision has Judicial Error.

   2. This is an application for review of a decision of a delegate of the Minister for Immigration on 19 November 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

   3. I have applied for the visa on 2 July 2013 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   4.  That is the reason I have applied for the Review through the lawyers. And I have been invited by the tribunal to attend the Hearing on 16 December 2015.

   5.  AAT has taken decision to affirm to not grant me spouse 820 visa on the basis of provided information by me regarding the hearing, and arguments.

   6.  Paragraph 16 of MRT decision we are maintaining our personal accounts, also there is Joint account but it was used only limited way. There is no such regulation that Applicant and Sponsor must maintain or have their income in to Joint bank accounts. We have our personal feelings and confidential where we can hide our income from in between us.

   7.  Paragraph 20 of MRT decision, we are not living together because of sponsor mother has not declared any date in 888 Declaration, it is totally Judicial error, in 888 doesn't give any information to write exact date. Any how he mother herself , an Australian citizen came to tribunal giving evidence has been put aside by the tribunal questing me that there is some prejudice happened in my case because of I am Pakistan national.

   8.  Paragraph 25 of MRT decision, there are only limited photographs submitted to the tribunal, we never been any where apart of spending with family as we are in financial Hardship. How can go somewhere and spent the money. Everything cost fortunate. That is the reason we have submitted the photographs taken with family sponsor mother which are very vital. But tribunal disregard them easily.

   9.  "SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69" has been taken in to consideration to assess the application criterion, but I feel that that is the wrong reference has been taken wrongly AAT.

   10.    At least tribunal should have given one more chance that sponsor also would have come and would have got my case stronger, but Tribunal did not consider my case in that way. 

   11.    I hope tribunal decision has judicial Error and hopefully Tribunal has misused its Jurisdiction by taking simple decision on the basis of they have sent information to me in regard the hearing.

   12.    Now I am in trouble, now I want to get the justice from FCCA that is the reason I am bring the decision to FCCA to review by anticipating the Justice from Honourable Judge.

   13.    Why I am here in Australia? I feel like I should have left the Australia. But as last attempt I wanted to tale the decision to Federal circuit court that Honourable Member may have jurisdiction in this matter to take the positive decision where I may get Spouse visa application that we can live together.

Background

1. The Applicant is a male citizen of Pakistan who made an application for a Visa on 2 July 2013 on the basis of his relationship to his sponsor, Ms Samantha Maree Lawler (‘the Sponsor’).

2. On 19 November 2014 the delegate decided to refuse application for the Visa as the delegate was not satisfied that the applicant had been in a de facto relationship with the Sponsor for 12 months prior to the date of the application. 

3. On 8 December 2014 the Applicant applied to the (then) Migration Review Tribunal for review of the delegate’s decision. 

4. On 29 April 2016 the Tribunal affirmed the decision not to grant that Applicant the Visa. The Tribunal was not satisfied that the parties shared a mutual commitment to a de facto relationship to the exclusion of all others at the time of the decision. 

Tribunal decision

1. The Tribunal examined whether the Applicant and Sponsor were in a de facto relationship under the Act and reg 1.09A of the Migration Regulations 1994 (Cth). In determining this, the Tribunal considered:

   a)the evidence of financial aspects of the relationship;[3]

   b)the nature of the household;[4]

   c)the social aspects of the relationship;[5] and

   d)the nature of the commitment between the Applicant and Sponsor.[6]

   [3] Tribunal decision [15] – [18].

   [4] Ibid [19] – [23].

   [5] Ibid [24] – [26].

   [6] Ibid [27] – [29].

2. The Tribunal found the documentary evidence of bank accounts provided by the Applicant did not show that the Applicant and Sponsor pooled financial resources. The Tribunal placed some weight on the financial aspects of the relationship but noted that the evidence did not support the claim that the Applicant and Sponsor shared day to day expenses.[7]

   [7] Above n 1.

3. On the evidence provided, the Tribunal accepted that the Applicant and Sponsor have shared accommodation. While it found that there was sometimes a lack of evidence regarding the exact circumstances of the nature of the household, it placed some weight on this in considering whether the parties were in a genuine de facto relationship.[8]

   [8] Above n 2.

4. The Tribunal found that there was limited evidence regarding the social aspects of the relationships since the decision of the delegate. It noted that the Applicant and Sponsor had appeared to have presented themselves as a married couple to their families and the wider community.[9] It found that there was a lack of evidence to demonstrate that the couple considered their relationship long term and committed.[10]

   [9] Above n 3.

   [10] Tribunal decision [30].

5. The Tribunal was unable to question the Sponsor at the hearing, who did not appear to give evidence in person or via telephone. The Tribunal enquired about why the Sponsor had not attended and the Applicant replied that she was unable to attend due to work commitments.[11] At [30] the Tribunal stated that ‘[b]y not being able to question the Sponsor, the Tribunal is not satisfied on the available evidence that they have future plans commensurate with a couple in a genuine and ongoing de facto relationship’.[12]

   [11] Ibid [29].

   [12] Ibid [30].

6. The Tribunal found that after considering the information, individually and cumulatively, it was not satisfied that the parties were in a genuine de facto relationship.[13] In coming to this conclusion, the Tribunal also considered the additional criteria for a de facto relationship and whether any compelling compassionate grounds existed for the grant of a Visa.[14] The Tribunal did not consider there to be compelling grounds for granting the Visa, considered that the Applicant did not satisfy the criteria for a grant of Visa and affirmed the decision of the delegate.[15]

   [13] Ibid [31].

   [14] Ibid [32] – [37].

   [15] Ibid [48].

Subclass 801 Visa

1. As noted in the submissions of the First Respondent, the Tribunal did not refer to the Applicant’s application for review of the delegate’s decision in relation to the Subclass 801 Visa. The First Respondent correctly concedes that this constitutes a failure on the part of the Tribunal to exercise jurisdiction and this means the Tribunal has committed jurisdictional error.[16]

   [16] First Respondent’s submissions 8 [15].

2. The First Respondent submits that the Court should use its discretion to refuse a writ of mandamus: Re Refugee Tribunal; Ex Parte Aala [2000] HCA 57. It was submitted that under the Migration Regulations 1994,

   
   

   cl 801.221 provides that an Applicant must hold a Subclass 820 Visa or have held one to be eligible for a grant of a Subclass 801 Visa. The First Respondent submitted that a writ may be refused if the Applicant has not suffered any injustice[17] and if ‘no useful result could ensue…’: R v Commonwealth Court of Conciliation and arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400.

   [17] Re Reufgee Tribunal; Ex Parte Aala [2000] HCA 57 [57] (Gaudron and Gummow JJ).

Consideration

1. Grounds one to five are in the nature of background and do not raise any argument of jurisdictional error. Similarly grounds 10, 12 and 13 do not raise any arguable grounds of jurisdictional error.

2. Grounds six to eight refer to paragraphs [16], [20] and [25] of the Tribunal decision. Those paragraphs make findings in favour of the Applicant by placing weight on evidence of pooling of financial resources,[18] reference to a statutory declaration made by the Sponsor’s mother declaring that the Applicant and Sponsor lived together in 2012;[19] and reference to a number of photographs that showed the Applicant in a social setting with the Sponsor.[20]  However, at [30] the Tribunal found that the evidence did not support a finding the Applicant and Sponsor had future plans commensurate with a couple in a genuine ongoing de facto relationship. There is no error apparent in the way the Tribunal approached its task in relation to that evidence and these grounds are really an invitation to engage in impermissible merits review.

   [18] Court Book 329 [16].

   [19] Ibid 330 [20].

   [20] Ibid 330 [25] – [26].

3. Ground nine asserts that the Tribunal wrongly relied on SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69. The Tribunal referred to that decision at [34] for the purposes of providing authority for the proposition that parties do not have to reside together in the same premises prior to the application in order to meet the definition of de facto partnership in s 5CB of the Act. There is no error in the Tribunal’s reference to SZOXP and, having regard to [65] of the decision in that case, the Tribunal is plainly correct in its reference to that decision.

4. Ground 11 does not allege any jurisdictional error.

5. Otherwise, I am satisfied that the Tribunal has discharged its duty to consider the principal matters on specific factors that it was required to consider under reg 1.09A(3) and have regard to He v Minister for Immigration and Border Protection [2017] FCAFC 206.

6. In relation to the Tribunal’s failure to refer to or consider the application for review of the delegate’s decision to refuse the grant of the subclass 801 Visa, the delegate correctly observed that clause 801.221 provides that a pre-requisite to the grant of a subclass 801 visa was that the applicant be a holder of a subclass 820 visa. As the Tribunal affirmed the decision to refuse the grant of the subclass 820 Visa, it is inevitable that had the Tribunal considered the question of the subclass 801 visa, it would affirmed the decision to refuse the subclass 801 visa. Therefore, no injustice has been suffered by the Applicant as, had the Tribunal considered the application for a subclass 801 Visa, the delegate’s decision would have nonetheless been affirmed given the Tribunal’s finding concerning a grant of a subclass 820 visa.

7. There is no utility in the Court issuing a writ of mandamus as any Tribunal considering review of refusal to grant the subclass 801 Visa must affirm the decision of the delegate.

Conclusion

1. In light of these reasons the Court orders that the application be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 17 October 2018