Imran v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 749
•6 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Imran v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 749
File number(s): ADG 112 of 2022 Judgment of: JUDGE VASTA Date of judgment: 6 August 2024 Catchwords: MIGRATION – Partner Visa – review of Administrative Appeal Tribunal decision - whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application Legislation: Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) reg 1.15A
Cases cited: He v The Minister [2017] FCAFC 206
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of last submission/s: 6 August 2024 Date of hearing: 6 August 2024 Place: Brisbane Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: NB Lawyers Solicitor for the Respondents: Ms Helsdon, Solicitor of Sparke Helmore ORDERS
ADG 112 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROSABELLA IMRAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
6 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 12 May 2022 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $8,371.30
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
On 6 April 2022, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the visa Applicant, Mr Maza Imran, a partner visa. The sponsor of Mr Maza Imran is Mrs Rosabella Imran. She asked this Court, on 12 May 2022, to review that decision.
As one can see from the dates, the filing was outside of the 35-day time limit. However, the extension of time application was heard by a Registrar of this Court, who quite properly allowed the extension of time so that the hearing today proceeded upon the merits, and the merits only.
The background to this matter is that the visa Applicant and the review Applicant met through the internet. It seems they used the social media application Facebook in February 2017 to first communicate with each other.
The visa Applicant is a male who is a Pakistani citizen, and he lives in Pakistan. He has had no previous relationships. He has no children. His date of birth is 31 March 1991.
The review Applicant is an Australian citizen. She was born on 13 February 1967. She has been married before, and that marriage led to five children being born. The review Applicant was divorced on 31 May 2016.
This means that there is a 24-year age difference between the visa applicant and the review Applicant.
The review Applicant and the visa Applicant corresponded through social media for approximately five months. The visa Applicant declared his love for the review Applicant and proposed marriage on 21 July 2017. The review Applicant immediately accepted that proposal. It goes to say they had not met in person at that stage.
The first time that they actually met, in person, was nearly a year later on 13 July 2018. The review Applicant had left Australia and eventually arrived at Islamabad Airport. The next day, 14 July 2018, the visa Applicant and the review Applicant were married in front of the visa Applicant's parents, one sibling and the children of the review Applicant, and a friend of the visa Applicant. The two Applicants claim that their wedding was a simple affair to keep within their financial means.
The review Applicant stayed in Pakistan then for about another three weeks. The review Applicant then returned to Australia.
The visa Applicant applied for the spousal visa on 28 March 2019 on the basis of his relationship with the review Applicant.
The visa Applicant, it would seem, had applications for visitor visas refused.
The review Applicant went back to Pakistan on 2 November 2019 and stayed for another three weeks.
Since then, the review Applicant has not been able to go to Pakistan because of the COVID outbreak. I note that the decision of the Tribunal was made in April of 2022, which means, at the time of the decision, the review Applicant had been unable, by force of Australian regulations from the pandemic, to travel overseas.
The question for the Tribunal was whether, both at the time the visa application was made, and at the time of the decision, the visa Applicant was the spouse of the review applicant, who is an Australian citizen.
The term “spouse” is defined in s 5F of the Migration Act 1958 (Cth) (”the Act”) , and it provides that a person is the spouse of another where the two persons are in a married relationship. And persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife, to the exclusion of all others; the relationship must be genuine and continuing; and the couple must live together, or not live separately and apart on a permanent basis.
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship, and this includes all of the matters enumerated in reg 1.15A(3). The AAT looked at these matters.
The AAT was of the view that the visa applicant and the review applicant were legally married. The Tribunal had regard to the marriage certificate which was issued by the government of Punjab.
The Tribunal then looked at all of the surrounding evidence with respect to this relationship.
In particular, there was evidence given to the Tribunal, from the review applicant, which is reproduced at page 17 of a transcript which is annexed to affidavit of Krisztian Toth filed on 19 July 2024. At line 27 of page 17 of the transcript, the AAT asked the review applicant:
So tell me how much time, in total, have you been able to spend in the presence of your husband physically?
The review applicant answered:
In 2018, I went to visit my husband, got married there in July 14. And starting 13th, I met my husband. And in total, that was three weeks. And then I went to visit my husband again in Pakistan in November 2019. So altogether, that has been six weeks I have been able to live with my husband as a couple, and to physically share the responsibilities and, you know, the intimacy and the - you know, just living together. So six weeks in total, I have had in this period of time.
The Tribunal also had the departmental travel records. It had statutory declarations from the review applicant's eldest son; a statutory declaration from the review applicant's late father; a statutory declaration from, it would seem, the review applicant's mother; as well as a statutory declaration from the review applicant. There was also documentary evidence provided to the Tribunal. The Court Book is nearly 4000 pages. Much of that material were copies of text messages and other communications sent by the review applicant and the visa applicant to each other over the course of the relationship from February 2017. There were also many photographs that were included.
The Tribunal considered all of that documentary evidence that was provided to the department. The Tribunal said that there was insufficient evidence before the Tribunal to satisfy it that the relationship was, in the view of the Tribunal, both genuine and continuing, and that the visa applicant and the review applicant have an intention to live together on a permanent basis.
In going through the aspects in reg 1.15A, the Tribunal found, with regard to the financial aspects, that the parties did not jointly own any major assets, but this was not unusual for a couple of modest financial means; that the sponsor transferred the applicant small amounts of money to assist with his expenses; that the parties did not have any joint liabilities; that the parties did not pool their financial resources together, other than as the review applicant sending the visa applicant small amounts of money; that the parties did not owe any legal obligations in respect of each other; and that there was little evidence of any day-to-day sharing of household expenses in circumstances where the parties did not live together.
As for the nature of the household, the Tribunal found that the parties did not have any joint responsibility for any children; that the parties lived in different countries since their marriage, other than the six weeks that the review applicant had spent in Pakistan. The Tribunal acknowledged that COVID-19 had prevented the parties from spending more time together. And that the parties did not share responsibility for housework, other than when they were in Pakistan.
As for the social aspects of the relationship, the Tribunal found that there was no verifiable evidence to support that the visa applicant and the review applicant presented themselves as husband and wife to any of their friends or siblings. The Tribunal placed substantial weight upon the lack of evidence provided in support of the social aspects of the relationship.
As to the aspect of the nature of the commitment to each other, the Tribunal found that the applicant and sponsor married the day after they met in person and had become engaged after four months of communicating with each other without having met each other in person; that the applicant and sponsor only lived together for two short visits of three weeks in length. The Tribunal accepted that the review Applicant was emotionally invested in the relationship but did not accept that this was the case for the visa Applicant; that the visa Applicant and the review Applicant provided copies of thousands of text messages they had sent each other.
With regard to these last two aspects, the Tribunal said this at paragraph 55 of their reason:
55.The degree of companionship and emotional support that the persons draw from each other. The Tribunal acknowledges the written testimony of the couple, that the relationship is mutually emotionally nourishing, and that they draw emotional support from each other. Whilst it accepts it is plausible that the sponsor has a genuine belief that this is the case, the Tribunal has not been convinced that this is the case in relation to the visa applicant. It notes that it is counter-cultural for a young man from Pakistan without children, to marry an unrelated divorced woman 24 years his senior who already has an established family.
56.The Tribunal has not been convinced that the visa applicant's parents believe that this is an acceptable, or likely, relationship, even though they state the relationship is genuine in their affidavits. The Tribunal finds it difficult to believe that the parents of the visa applicant are accepting of a marriage between their son and a woman 24 years his senior. The fact that their son married one day after meeting his bride in person for the first time, and they, having not met her prior to her arrival in Pakistan, meeting her on the day of the marriage, when coupled with her previous marital status, with a large and established family, is counter-cultural. The Tribunal finds it difficult to reconcile these circumstances with the statements that they are accepting of the union.
57.The Tribunal has reviewed the many hundreds of pages of communications provided to it by the couple. The communications used many of the same photographs of the couple taken during the brief time that they were together, numerous times. It also showed images of the parents of the sponsor in a way that indicated they had some communication with and/or knowledge of their son-in-law. The Tribunal found many of the communications were in a style that suggested they were confected for the purposes of establishing their relationship in the eyes of others, or potentially to use for immigration evidence. It is not possible to determine if that was indeed the case. However, the Tribunal is not satisfied that they were in a style that demonstrated true relationship intimacy.
The Tribunal acknowledged that the review Applicant had shown that she had committed time and money, by travelling to Pakistan to meet and marry the visa Applicant. The Tribunal also acknowledged that the visa applicant applied for three visitor visas, which were all refused. The Tribunal noted two of those applications were prior to the marriage, and it places little weight upon them in relation to the couple's commitment to each other as spouses.
The Tribunal found minimal evidence that the visa Applicant had invested significantly in this relationship, that would satisfy it that his intentions were a commitment to a shared life as husband and wife to the exclusion of all others, in a relationship that is genuine and continuing, and that the couple will live together, or not live separately and apart on a permanent basis.
The Tribunal, having considered all of the circumstances of the relationship, found that the financial, household, social and commitment aspects of the relationship were not indicative of a couple with genuine mutual commitment to a shared life together.
Therefore, the Applicant did not meet the time of application criteria, nor the time of decision criteria. Given those conclusions, the Tribunal affirmed the decision not to grant the visa Applicant a partner visa.
The application was brought on four grounds. The Court will deal with these grounds in the order that the Applicant, through his esteemed counsel, dealt with them during the course of the hearing today.
The first ground dealt with was ground 4. Ground 4 states:
The AAT did not give proper, genuine and realistic consideration to the merits of the case including by the application of an active intellectual process and, therefore, failed to conduct a proper review under ss 347 and 348 of the Act.
Counsel for the Applicant argued in this way. The authorities are clear, he said, that the decision-maker must demonstrate that they have grappled with material facts, and that that grappling occurs within the bounds of rationality and reasonableness. Which is really a short precis of what was said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at paragraphs 24 and 25.
Counsel further spoke of s 368 of the Act, which talks about a Tribunal’s decision and written statement being one that sets out the findings on any material questions of fact. Counsel then referred to what Gaudron J had said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at paragraphs 34 and 35; that being, that if a decision maker has not referred to a material fact, it can be inferred that the absence of a reference to, or a finding with respect to some particular matter, led to a conclusion that the Tribunal did not consider that matter to be material.
All of that led to this submission: that the particular finding that was not made in this case, was that the marriage was consummated. Such a matter was an integral part of deciding whether the parties were spouses.
Whilst it is true that the reasons of the AAT do not mention at all that the marriage was consummated, that does not mean that, firstly, that aspect was not considered; but, it also does not mean that the matter automatically should be categorised as a material fact. What was argued in this case, was that the consummation of the marriage was an important aspect of the relationship, and that when the AAT was to conduct their consideration of the matters in reg 1.15A(3)(d)(iii), that the aspect of: “the degree of companionship and emotional support that the persons draw from each other” cannot be properly considered without reference to the material fact that the marriage was consummated.
It seems to me, however, that whilst the fact that the marriage was consummated was not explicitly noted in the reasons by the Tribunal, the fact is that the Tribunal was at pains to talk about the length of time that the visa Applicant and the review Applicant had lived, and spent time, with each other. That period of six weeks that was spoken of must be a reference to the six weeks that were referenced by the review Applicant, in what she said about these six weeks in lines 27 to 39 of page 17 of the transcript.
In other words, it went without saying that the period of the six weeks that the visa Applicant and the review Applicant spent together obviously included intimacy and sexual activity. There was no need to specifically speak of that.
But, in any event, it doesn’t seem to me that this is a material fact. The only material matters, that the Tribunal needed to look at, were the circumstances of the relationship and the 15 aspects in reg 1.15A(3). To me, it is very clear that the Tribunal had taken that matter (that the marriage had been consummated/that the applicant and sponsor had engaged in sexual activity after the wedding) into account, and it did not need to make a specific finding on that matter as being a material fact.
I also note that the argument that the applicant puts before this Court (that this “material fact” is relevant to reg 1.15A(3)(d)(iii)), was not how it was put before the Tribunal. I note that at CB 3956, in the submissions made by the Applicants under the heading “The Nature of the Household”, it was written:
Imran and Rosabella lived together and consummated their marriage on 14 July 2018 for approximately 17 days and, again, from 3 November 2019 to 24 November 2019.
This was not seen to be something that went to the aspect of the commitment to each other but, rather, simply to the nature of the household aspects of the mandatory considerations.
When it came to the submissions regarding the nature of the persons’ commitment to each other at CB 3958, at paragraph 41, it was written:
41.Imran and Rosabella were engaged six months after meeting on Facebook. They then married after being engaged for approximately one and a half years. They have been in a married relationship whilst living in different countries for four years now, with consistent and regular contact.
42In response to the speed at which they were married, Rosabella and Imran's faith as Muslims does not allow them to cohabitate or share intimacy in a relationship before marriage is confirmed by the applicant and the sponsor. The marriage that they entered was necessary for them to be able to live and grow together as a couple within their faith. It is not contrary to cultural norms for partners to meet and marry quickly in Pakistani culture.
43.The decision-maker did not see the relationship as genuine due to the unusual nature of the union. They did not believe the marriage to have been entered into for love by both parties: We disagree with this assertion and further highlight that while there is strong and enduring affection between the sponsor and the applicant, love is not an essential criterion for marriage and, by extension, a partner visa.
This means that the approach before the Tribunal is different to the approach here. That does not make it invalid. However, what it does, is that it can diminish the force of the argument. This is because the argument before this Court is that such an omission is a jurisdictional error because it was not considered in relation to a particular aspect of Reg 1.15A even though it was submitted to the Tribunal that such was relevant to a different particular aspect of Reg 1.15A.
But, as I have already found, the force of the argument is not such that the Court would find that it would, in any way, shape or form, amount to a jurisdictional error. It was not necessary for the Tribunal to find, as a material fact, that there had been a consummation of the marriage. The only matters that the Tribunal had to find was whether they were satisfied, on all the evidence, that the visa applicant and the review applicant were in a spousal relationship. In this case, the Tribunal was not satisfied of that.
The other aspect of this ground, according to counsel for the Applicant, was that there had been no adverse finding on credit. The Tribunal did not, at any time, say that they found that either the visa Applicant or the review Applicant were dishonest, or that the evidence was not credible. The closest the Tribunal came was to note that some of the material in the communications may have been confected for the purposes of this application, but then it said that it was not possible for this to be established.
The Tribunal does not have to come to an adverse finding. It is a misunderstanding of the role of the Tribunal to expect that there will always be some form of adverse finding against an Applicant if the Tribunal or the decision-maker does not grant them a visa.
Unfortunately, such a submission seems to be premised upon a hypothesis that whatever an applicant says in an application must be treated as (1) true or (2) sufficiently capable of causing a visa to be granted unless the contrary is shown. That is an incorrect premise. The true premise is that it is for the Applicant to satisfy the decision-maker, whether that be the delegate or the Tribunal, that the evidence, that has been presented, is sufficient to satisfy the Tribunal that all of the prerequisites for the grant of the visa have been made out and, therefore, the visa ought be granted.
There may have been no adverse findings of credit here, but that does not mean that this, in any way, vitiates the ultimate conclusion of the Tribunal, which is that on the evidence presented before it, it was simply not satisfied that the visa applicant and the review applicant were in a genuine spousal relationship.
The Applicant referred to a number of other authorities, but with respect to those submissions, those authorities were not to this point. Those authorities spoke of the way in which a Tribunal had incorrectly made a particular finding. The Tribunal here has not made any particular finding, other than to say that they are not satisfied upon the evidence that was presented before them.
Having come to that conclusion, I am of the view that ground 4 does not illustrate any jurisdictional error.
Ground 1 is that
The AAT’s failed to properly apply and interpret s 5F of the Migration Act 1958 Cth and Reg 1.15A of the Migration Regulations 1994.
As counsel for the Applicant has written, ground 1 and ground 4 inevitably overlap. What the Applicant has argued here, is that many of the aspects of reg 1.15A were irrelevant. That is because the circumstances, which weren't of the making of the visa Applicant or the review Applicant, made it impossible for them to live together any longer than the cumulative six weeks in which they had lived together.
However, that does not mean that reg 1.15A and its 15 considerations are not relevant. They are mandatory considerations, as the Full Court of the Federal Court has found in He v The Minister [2017] FCAFC 206, particularly at paragraph 52.
The AAT necessarily had to consider those matters, notwithstanding that, because of the peculiar circumstances that obtained in this case, the Applicants could not demonstrate anything worthwhile regarding those considerations. The AAT acknowledged this in their reasons. It does not seem to me that the AAT in any way misinterpreted the considerations.
It does seem to me that the true complaint that the Applicant has regarding this ground, is the weight given to these considerations by the AAT. But it is trite to say that the decision as to what weight a particular consideration should be given is a matter for the Tribunal, and the Tribunal alone. For those reasons, ground 1 fails.
Ground 2 is that
The decision of the AAT was unreasonable.
Counsel for the Applicant did not specifically go through this particular ground relying upon the matters that had been raised in grounds 4 and 1 as being illustrative of the unreasonable nature of the reasoning of the Tribunal. It seems to me that, given the conclusions I have made with regard to grounds 1 and 4, that ground 2 cannot succeed, and it therefore fails.
Ground 3 is in these terms:
In accordance with the principles in Wei v The Minister for Immigration and Border Protection [2015] HCA 51, the “satisfaction” required to found a valid exercise of the power to affirm the refusal of the visa was not formed reasonably and on a correct understanding of the law.
The counsel for the applicant wrote in these terms:
It is acknowledged that ground 3 is another way of characterising what went wrong with the AAT’s decision in this ground, as outlined in ground 4.
Given what I have said about ground 4, ground 3 then fails.
Ground 5 of the application was not pressed.
I have had regard to the decision of the AAT, independently of the submissions made by the counsel for the Applicant and counsel for the Minister.
I was not able to independently find any jurisdictional error.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 4 September 2024
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