Housam Slayman v Minister for Immigration & Multicultural Affairs
[1997] FCA 841
•12 August 1997
FEDERAL COURT OF AUSTRALIA
CITIZENSHIP, IMMIGRATION & MIGRATION - whether decision of Immigration Review Tribunal affected by fraud - whether Tribunal actually biased - whether Tribunal made an error of law - whether there was no evidence to support the Tribunal’s findings.
Migration Act 1958 (Cth) - s 476(1)(e), s 476(1)(f), s 476(1)(g), s 476(4)(a)
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
Wati v Minister for Immigration and Ethnic Affairs (Lindgren J, 29 November 1996, unreported)
Qui v The Minister for Immigration and Ethnic Affairs (Lindgren J, 6 May 1997, unreported)
Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321
Curragh Queensland Mining Limited v Daniel and Ors (1992) 34 FCR 212
Briginshaw v Briginshaw (1938) 60 CLR 336
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited (No 2) (1992) 37 FCR 234
HOUSAM SLAYMAN -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 854 of 1996
JUDGE: FOSTER J PLACE: SYDNEY DATED: 12 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 854 of 1996 ) GENERAL DIVISION )
BETWEEN: HOUSAM SLAYMAN
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: FOSTER J PLACE: SYDNEY DATED: 12 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 854 of 1996 ) GENERAL DIVISION )
BETWEEN: HOUSAM SLAYMAN
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: FOSTER J PLACE: SYDNEY DATED: 12 AUGUST 1997
REASONS FOR JUDGMENT
(Extempore)
This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) seeking the review of a decision of the Immigration Review Tribunal (“the Tribunal”) given on 27 September 1996. By that decision the Tribunal refused to reverse a decision given on 28 June 1996 by a delegate of the then Minister for Immigration and Ethnic Affairs (“the Delegate”) to cancel the Class 100 (Spouse) visa granted on 5 October 1993 to the applicant, Housam Slayman, a citizen of Syria.
The reason for cancellation given by the Delegate was that Mr Slayman had made false or misleading statements in the visa application form which he lodged in Damascus on 23 August 1993 and that these statements were capable of affecting the visa decision. The cancellation was effected pursuant to s 109 of the Act on the basis that Mr Slayman had falsely indicated in his visa application that his relationship with his spouse was a genuine and continuing one. In effect, the Delegate found that he had not entered into marriage with his spouse, Helen Fawor, an Australian citizen, with a view to establishing a genuine union with her but for the purpose of wrongfully obtaining a visa entitling him to permanent residence in Australia.
The legislative and regulatory provisions enabling this decision to be made are fully set out in the Tribunal's reasons for decision. It is not contested that they provide the necessary powers and discretions to found the decision and accordingly I shall not set them out in these reasons. The Tribunal conducted a hearing on three days during which it heard sworn evidence from Mr Slayman, his sponsor and spouse Ms Fawor, and Hassan Fawor her father, Michael Fawor her brother, and Amal Zidam her sister. The Tribunal also heard evidence from Sheikh Whebe of the Supreme Islamic Shiite Council of Australia and considered a statutory declaration from Yaser Zidam, the estranged husband of Amal Zidam. It had before it as evidence the relevant Departmental files relating to Mr Slayman. It also heard a recording of information provided by Mr Slayman’s mother in Syria relating to events in Syria connected with the marriage of the parties. There was considerable conflict in the evidence. Clearly the Tribunal's view of the credibility of the witnesses was critical to its decision.
The reasons for the Tribunal’s decision were given in a closely reasoned document in which the evidence is fully reviewed and necessary findings of fact made. Having regard to the grounds of the application before the Court, there is no need for me to refer to those reasons in detail. The Tribunal upheld the Delegate's decision that Mr Slayman had not entered into marriage with Ms Fawor with the intention that it be genuine and continuing. It found that Ms Fawor had intended a binding and proper marriage but had been deceived by Mr Slayman, whose true intentions were the reverse.
It is unnecessary to set out at length the findings of the Tribunal. Put simply, they were that Ms Fawor, when in Syria in June 1993 on holiday, renewed her acquaintance with Mr Slayman who was, in fact, her first cousin. A romantic attachment developed, she thought. He proposed marriage, she accepted. Her father, Hassan Fawor, who was also in Syria at the time, agreed to the marriage in accordance with custom. An Islamic marriage ceremony was performed on 5 August 1993 followed by a form of civil ceremony on 8 August. It was agreed, also in accordance with custom, that the parties should not commence married life and should have no sexual relationship until a proper wedding reception was held later in Australia after Mr Slayman had migrated to this country.
On 23 August 1993 Mr Slayman applied at the Australian Embassy in Damascus for a Class 100 (Spouse) visa. His application was supported by Ms Fawor, his sponsor. Ms Fawor then, on 2 September 1993, returned to her parents' home in Australia and resumed her employment. On 5 October Mr Slayman was granted the visa that he had sought. On 28 October he arrived in Australia. He had not advised the Fawor family of his travel arrangements, although Hassan Fawor had paid his airfare. However, the family had learnt of his travel arrangements from another source and met him at the airport. The Tribunal was satisfied that he was surprised and not pleased at their presence. He accompanied them to their home where he resided until told to leave on 18 November.
During this time, his behaviour towards Ms Fawor was cold and dismissive. His attitude to her had changed. She asked what was wrong and was told, in effect, that she had been used for the purpose of obtaining a visa and that he had no love for her but loved his girlfriend in Syria, whom he wished to bring to Australia. Photos of his girlfriend were found and seen by her. Thereafter, he was denied entry to the house. Ms Fawor reported the matter to the then Department of Immigration and Ethnic Affairs and sought a decree of nullity of the marriage from the Family Court of Australia. This was refused, apparently on the ground that there was a valid subsisting marriage.
Mr Slayman's version of events was different. He alleged that the marriage was genuine so far as he was concerned, that Ms Fawor, because of interference from the family, had become indifferent to him, and that he had been treated badly in the home and was unjustifiably removed from it. His evidence in this regard was not accepted by the Tribunal which, of course, had the advantage of hearing that evidence and observing his demeanour in the giving of it. The Tribunal accepted the evidence of the Fawor family witnesses and upheld the decision of the Delegate.
The grounds upon which the applicant seeks review of the Tribunal's decision are stated compendiously as “error or law”, “actual bias”, “no evidence” and “fraud”. These grounds follow the provisions of ss 476(1)(e), (f) and (g) and s 476(4)(a) of the Act. I shall deal with them in the order set out above.
ERROR OF LAW
Section 476(1)(e) of the Act provides:
“that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person that made the decision, whether or not the error appears on the record of the decision;”
As has been observed, these proceedings have arisen from a decision under s 109 of the Act to cancel a permanent visa. By virtue of s 115(3)(c) of the Act one of the bases for a visa cancellation under s 109 is non-compliance with s 20 of the Act as it was prior to 1 September 1994 (that is, prior to the entry into force of the Migration Reform Act 1992 (Cth)). That section applied to, inter alia, a person who made in respect of the grant of their visa a statement that was false or misleading in a material particular. Section 20 of the previous Act was considered by Wilcox J in Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570 at 572-3, where his Honour said:
“The consequences of conduct falling within s 20(1) or (2) are serious ... It follows that a court should find that a person has contravened s 20 only where the evidence establishes that proposition to a high degree of satisfaction: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Rejfek v McElroy (1965) 112 CLR 517 at 521-522.”
(See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.)
The Tribunal purported to apply the standard referred to by Wilcox J when it held that it was “satisfied to a very high degree of probability that Mr Slayman did not intend a genuine and continuing marriage to Ms Helen Fawor and that Mr Slayman undertook the marriage to obtain a right of permanent residence in Australia”.
The submissions made on behalf of the applicant under the heading “error of law” amount, in my opinion, to no more than assertions that in particular respects the Tribunal made errors of fact in assessing the evidence and the credibility of the witnesses. It is clear that the Tribunal accepted the evidence of the Fawor family witnesses and rejected the evidence of Mr Slayman in all matters material to its decision. It was its function to make the necessary findings of fact; it is not the function of this Court to review such findings except in the limited way provided for in the section. In my opinion, no error of law has been demonstrated on the part of the Tribunal in reaching these findings. This ground accordingly fails.
ACTUAL BIAS
This ground, provided for by s 476(1)(f) is of narrow ambit. It does not embrace the type of bias which is described as “perceived” or “ostensible” bias or “reasonably apprehended” bias. It refers only to bias actually present in the mind of the decision maker (see Wati v Minister for Immigration and Ethnic Affairs (Lindgren J, 29 November 1996, unreported) and Qui v The Minister for Immigration and Ethnic Affairs (Lindgren J, 6 May 1997, unreported), where his Honour reviewed this question fully, including earlier decisions in this Court).
I am completely satisfied that in order to make out this ground the applicant must establish that the Tribunal did not in fact bring an unbiased mind to the issues before it, that is, that it had a closed mind not open to persuasion. The portions in the transcript of the hearing relied upon by Mr Slayman and considered closely by myself fall far short of establishing such a state of mind in the Tribunal. Much reliance was placed upon the members’ use of the word "casanova" as suggesting that an unshakeable view had been formed that Mr Slayman was no more than a philanderer incapable of forming the genuine affection necessary to ground the marriage tie. It was also said that the Tribunal’s reference to a "picture" of Mr Slayman as a “casanova” indicated that it had a firm and unshakeable biased view of him. The transcript, in my opinion, does not convey any such impression. Viewed as a whole it indicates that evidence had been given by Mr Slayman’s cousin, Michael Fawor, which painted such a picture of him. The Tribunal, when questioning Mr Slayman, was doing no more than putting this evidence to him in order to give him the opportunity of answering it. This was a perfectly proper procedure and certainly does not evince actual bias.
In Qui Lindgren J, after consideration of the authorities, said (at 98):
“It is permissible for decision-makers to make known their preliminary views for the purpose of ventilating issues. Even where preliminary views are strongly held there will be actual bias only if they are incapable of being altered.”
The present case, in my view, does not even attain the height considered in that passage. The transcript, in my view, does not indicate that the members of the Tribunal, at the time when they were questioning Mr Slayman on these matters, had formed strong preliminary views. As the passage cited indicates, even if they had, this would not in itself indicate the existence of actual bias as required by the section. This ground must also fail.
NO EVIDENCE
This ground is based upon s 476(1)(g) as read with s 476(4)(a). These sections provide as follows:
“(1)(g)that there was no evidence or other material to justify the making of the decision.
...
(4)The ground specified in (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; ...”
This ground of review was the subject of consideration by the High Court in Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321 at 358 et seq, where the Court was considering the equivalent provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth). See also Curragh Queensland Mining Limited v Daniel and Ors (1992) 34 FCR 212 at 220-221.
It is clear that the effect of these provisions is to expand the traditional “no evidence” ground of judicial review so as to embrace the question of the existence or otherwise of evidence which could reasonably establish the matter in question. However, even this extended scope of the ground for review does not, in my opinion, avail Mr Slayman in this case. In my opinion, there was ample evidence from which the basic finding that Mr Slayman had not been genuine could be made. The submissions made on behalf of Mr Slayman really amount to assertions that this evidence should not have been accepted. This, however, was a matter for the Tribunal which in my view was clearly entitled to accept it. This ground necessarily fails.
FRAUD
This ground comes from s 476(1)(f) which reads:
“that the decision was induced or affected by fraud or by actual bias;”
In my opinion, the ground is clearly analogous to the ground upon which curial judgments may be impeached and, in my opinion, is also subject to the same strict limitations. It requires a high standard of proof for its establishment, namely, the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336). Moreover, there are undoubted limits to what a reviewing Court can have regard to when the attempt is made to impeach an earlier decision on this ground. The question was fully considered by a Full Court of this Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited (No 2) (1992) 37 FCR 234. After a full consideration of the development of this jurisdiction the Court cited with approval (at 240) earlier authority as follows:
“The principles on which an earlier judgment may be impeached on the ground of fraud were described as followed by Lord Bridge in delivering the decision of the House of Lords in Owens Bank Limited v Bracko, [1992] 2 AC 443 at 483:
‘[T]he common law rule [is] that the unsuccessful party who has been sued to judgment is not permitted to challenge that judgment on the ground that it was obtained by fraud unless he is able to prove that fraud by fresh evidence which was not available to him and could not have been discovered with reasonable diligence before the judgment was delivered.... This is the rule to be applied in an action brought to set aside an English judgment on the ground that it was obtained by fraud. The rule rests on the principle that there must be finality of litigation which would be defeated if it were open to the unsuccessful party in one action to bring a second action to relitigage the issue determined against him simply on the ground that the opposing party had obtained judgment in the first action by perjured evidence. Their Lordships were taken, in the course of argument, through the many authorities in which this salutary English rule has been developed and applied and which demonstrate the stringency of the criterion which the fresh evidence must satisfy if it is to be admissible to impeach a judgment on the ground of fraud.
I do not find it necessary to examine these authorities. The rule they establish is unquestionable and the principle on which they rest is clear.’
Later (at 489) his Lordship said:
‘An English judgment, subject to any available appellate procedures, is final and conclusive between the parties as to the issues which it decides. It is in order to preserve this finality that any attempt to reopen litigation, once concluded, even on the ground that the judgment was obtained by fraud, has to be confined within very restricted limits.’”
I have followed these principles in the hearing of this case. In doing so I have made rulings as to the extent to which Mr Slayman’s representative could revisit facts litigated before the Tribunal. Those rulings restricted his cross examination of Ms Fawor as to matters in respect of which she had given evidence before the Tribunal. He has the benefit of those rulings and the reasons which I then gave. I shall not repeat them here. I allowed certain cross-examination on credit, however, as will appear later in these reasons.
The case in fraud relied primarily on the fresh evidence of a witness, Nizar Toufan, who provided an affidavit sworn on 19 January 1997. This evidence qualified as fresh evidence within the meaning of the rule. He also gave oral evidence and was cross-examined. He asserted that he knew Ms Fawor well and that after the Tribunal hearing he had had a conversation with her in which she admitted, in effect, that she had made up the evidence about Mr Slayman’s stating that he had merely used her in order to obtain his permanent residence visa. I was not particularly impressed with this witness although it is necessary to make allowance for the fact that his evidence was given through an interpreter.
Helen Fawor gave oral evidence in which she categorically denied that this conversation had occurred. It was put that I should not accept her evidence because of discrepancies which were demonstrated in her evidence before the Tribunal and in respect of which I had allowed cross-examination. I had allowed such cross-examination as it related to the general issue of her credit which impinged upon the acceptance or rejection of the fresh evidence of Mr Toufan.
Two broad issues were canvassed. First, whether she could be believed as to her knowledge of the nature of the ceremony in which she participated in Syria, that is, was it a marriage ceremony or a betrothal ceremony? Second, whether she was truthful as to what she alleged was said to her by Mr Slayman as to his use of her to obtain his visa. In this regard extensive reference was made to and questions asked in relation to a statutory declaration provided by her to the immigration authorities and an affidavit used by her in her subsequent application for a decree of nullity. I should say it is clear that from a reading of those two documents that the affidavit was to a very large extent simply a copy of the earlier statutory declaration which had been prepared with the assistance of legal counsel.
Her answers and her demeanour in cross-examination did not persuade me that she should not be accepted as a credible witness. She was basically consistent in her assertion that marriage in the full sense according to custom would not occur, so far as she was concerned, until a reception had been held in Australia followed by a honeymoon and her living with Mr Slayman as his wife. Until this situation obtained, whatever might have been the legal position in relation to the ceremonies that she had participated in, marriage so far as she was concerned had not properly occurred. I formed the view that there was a sufficiently obvious core of consistency in what she had to say about those matters to prevent any significant criticism being made of her credibility in this regard.
In relation to the second matter I should say, perhaps, that I felt that the precise words attributed in her statutory declaration and subsequent affidavit to Mr Slayman bore the marks of a pleader's flourish. However, I am satisfied that they accurately conveyed the substance of what was said to her. I was impressed by her oral testimony in this regard which closely corresponded with her oral evidence to the Tribunal. In each case she said that Mr Slayman had said to her, "I just got what I wanted". I consider that this statement was the basis of the more elaborate words that one finds in the statutory declaration and the affidavit. Again, however, I am quite satisfied that the core statement was accurate and also truthful. The result is that the discrepancies heavily relied upon and properly explored in cross-examination with her do not satisfy me that I should not, in this regard, accept her as a credible witness. So far as the evidence of Mr Toufan is concerned, it is sufficient that I say that his evidence did not satisfy me that Ms Fawor had committed the fraud alleged in the giving of her evidence before the Tribunal.
Under the heading of fraud, reliance was also placed upon what was said to be the fraudulent testimony of Hassan Fawor. This aspect of the case did not have the same importance as was accorded to the allegations of fraud against Helen Fawor. However, it should be noted that this aspect of Mr Slayman’s case related to the following finding of the Tribunal:
“It is significant that shortly after obtaining that right [that is, the right of permanent residence in Australia of Mr Slayman] the marriage irretrievably broke down and he did not make any overtures in relation to it until after the Department took action against him.”
It had been Mr Slayman's case that the marriage had not broken down through any fault on his part and that he had indeed made overtures in relation to it before the then Department of Immigration and Ethnic Affairs had taken action against him. This assertion was rejected by the Tribunal. Hassan Fawor had expressed the view that no such overture had been made. The point, as I understand it, of this attack upon Hassan Fawor’s evidence is that such overtures were in fact made, that Hassan Fawor should have been well aware of them, and therefore his denial of them was knowingly false and constituted fraudulent testimony to the Tribunal.
Fresh evidence has been relied upon to found the assertion that Hassan Fawor's evidence in this regard was relevantly fraudulent. That evidence is in the form of letters annexed to an affidavit of Mr Slayman sworn on 2 April 1997. The letters are from Talal Mohamad, Nazir Hammoud, and Ahmad Ismael. So far as the letter from Mr Ismael is concerned it does no more than refer to an event which was quite thoroughly canvassed in the evidence before the Tribunal. This was the invitation to Mr Slayman to attend the Fawor household on an occasion after he had been denied access to it, the occasion being one of the formal presentation of condolences to Hassan Fawor for the death of his father. There is no dispute that Mr Slayman was permitted to re-enter the Fawor home on that occasion so that he might convey his condolences to the family. The material in the letter from Mr Ismael, does not carry that matter any further.
The other two letters suffer from the initial difficulty that they do not in themselves, nor from any related material, indicate that the matter related in them was not available at the time of the hearing. If I put that to one side for the moment, I note that the letters have other evidentiary blemishes. The letter from the correspondent Mr Mohamad is obviously relied upon for the passage in it that reads:
“I would like to inform you that Housam tried many times to phone the Fawor family, however, they hanged up the telephone.”
There is nothing in the letter to indicate when it was that those attempted telephone calls took place, nor is there anything in the letter which would indicate that the statement itself is a statement of personal observation. The letter from the correspondent Mr Hammoud, is obviously relied upon primarily for the statement in it that Mr Slayman requested the writer to mediate between himself and his wife. Again there is no indication as to when that request was made.
One has to weigh up in a case such as the present the significance that should be attributed to evidence of this kind. The evidence is produced to found an assertion that Hassan Fawor was not truthful to the Tribunal, in relation to what he had to say about Mr Slayman's behaviour after leaving the household, particularly in relation to attempts to contact his wife or attempts at reconciliation. I have given consideration to the very cogent submissions that have been made to me as to the use I should make of this evidence. I am not able to accede to them in my view. It falls very far short of establishing the serious charge of fraud made against Hassan Fawor. I find that the grounds sought to be established under this heading both fail.
Accordingly, the attacks that have been made upon the Tribunal's decision on these various grounds have all failed. In those circumstances there is only one order that can be made and that is that this application be dismissed with costs.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster
Associate:
Dated: 12 August 1997
Representation of Applicant: R Nair, solicitor Solicitor for the Applicant: Doran, Roberts & Co Counsel for the Respondent: R P L Lancaster Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 4, 7, 12 August 1997 Date of Judgment: 12 August 1997
17
0
0