Jibal v Minister for Home Affairs

[2018] FCCA 3370

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIBAL v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3370

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal had erred in failing to consider whether the applicant was a victim of family violence  – whether a claim of family violence was raised by a psychologist’s report – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), div.1.5, regs.1.23,1.24, sch.2, cl.801.221

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)
[2004] FCAFC 263
CSO15 v The Minister for Immigration and Border Protection [2018] FCAFC
14
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: MOHAMMAD ABOU JIBAL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1970 of 2018

Judgment of: Judge Emmett

Hearing date: 19 November 2018

Date of Last Submission: 19 November 2018

Delivered at: Sydney

Delivered on: 5 December 2018

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Jonathan Hutton
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1970 of 2018

MOHAMMAD ABOU JIBAL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. By application, filed on 16 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 June 2018.

2. The applicant is a 26 year old citizen of Lebanon. He married Dima Al Kurdi in New South Wales on 8 March 2014. Ms Kurdi (“the Sponsor”) is an Australian citizen.

3. On 26 October 2014, the applicant lodged his application for a Partner Residence (Class BS) (Subclass 801) visa (“Partner Visa”).

4. On 30 October 2014, the Department granted the applicant a temporary Partner Visa.

5. On 2 August 2017, the Sponsor withdrew sponsorship for the applicant’s Partner Visa. The Department invited the applicant to comment on this information and invited him to withdraw his application. The applicant provided a statement confirming the relationship had ceased, and stating that he would face hardship upon return to Lebanon. He did not withdraw the application.

6. On 12 October 2017, a delegate of the first respondent (“the Delegate”) refused the application for the Partner Visa.

7. On 31 October 2017, the applicant lodged an application with the Tribunal for merits review of the Delegate’s decision.

8. On 19 April 2018, the Tribunal invited the applicant to provide further comment, noting that information on the Department’s file indicated that the applicant had ceased to be in a relationship with the Sponsor.

9. In response, the applicant provided a psychological report from Dr Fayza Al Shamali on 14 May 2018. The applicant and a friend, Ms Tania Hinnaoui, attended a hearing before the Tribunal on 26 June 2018.

10. On 29 June 2018, the Tribunal affirmed the decision under review.

The applicant’s ground for judicial review before this Court

1. The applicant was unrepresented before this Court but had the assistance of an Arabic interpreter. The applicant confirmed he relied upon the ground in his application as follows.

   “1. The Tribunal received a psychological report from Dr Al Shamali in which the full circumstances were explained yet the Tribunal failed to consider that I am a victim as a result of my sponsor’s behaviour.”

2. I explained to the applicant the role of this Court. I explained that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

Relevant Legislation

1. The requirements for the grant of the visa are set out in cl.801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). At the time the applicant applied for the visa, cl.801.221(2) required, inter alia, that the applicant be sponsored by the sponsoring partner at the time of decision. An exception to this requirement is for family violence committed by the sponsoring partner, set out in cl.801.221(6) as follows:

   “(6)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the holder of a Subclass 820 visa; and

   (b)  the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (c)  either or both of the following circumstances applies:

   (i)  either or both of the following:

   (A)  the applicant;

   (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;”

2. Under div.1.5 of the Regulations, a person will have ‘suffered family violence’ only if there is evidence of a Family Law Act 1975 (Cth) injunction, a court order, a conviction, or a non-judicially determined family violence claim.

3. Relevantly, reg.1.23(9) and (10) of the Regulations provide that an application for a visa is taken to include a non-judicially determined claim of family violence if:

   “(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

   (b)  the alleged victim is:

   (i)  a spouse or de facto partner of the alleged perpetrator; or

   (ii)  a dependent child of:

   (A)  the alleged perpetrator; or 

   (B)  the spouse or de facto partner of the alleged perpetrator; or 

   (C)  both the alleged perpetrator and his or her spouse or de facto partner; or 

   (iii)  a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

   (c)  the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:

   (i)  the alleged victim has suffered relevant family violence; and

   (ii)  the alleged perpetrator committed that relevant family violence.

   (10)  If an application for a visa includes a non-judicially determined claim of family violence:

   (a)  the Minister must consider whether the alleged victim has suffered relevant family violence; and

   (b)  if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and (c)  if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

   (i)  the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

   (ii) the Minister must take an independent expert's opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.”

4. Regulation 1.24 of the Regulations requires that evidence for the purpose of reg.1.23(9) of the Regulations be presented by way of statutory declaration. An independent expert opinion must be obtained under reg.1.23(10)(c)(i) of the Regulations if a visa application includes a non-judicially determined claim of family violence and the Minister is not satisfied that the alleged victim has suffered the relevant family violence.

Evidence

1. In support of his application, the applicant read the affidavit of Toufic Laba Sarkis, without objection, that annexed a transcript of the hearing before the Administrative Appeals Tribunal.  

2. The transcript discloses that the Tribunal Member gave a detailed explanation to the applicant at the outset of the hearing as to the issues before it. The Tribunal Member stated that the applicant needed to be either the spouse or de facto partner of the Sponsor, unless one of the exceptions applied to his circumstances. The Tribunal Member informed the applicant that the Sponsor had withdrawn her sponsorship and referred to various opportunities that the applicant had to comment on that information prior to the hearing. The Tribunal Member then stated that exceptions included the sponsor’s death, family violence and also certain court orders in relation to children. The Tribunal Member noted that the applicant had also been invited to comment on that information. The applicant provided the psychological report from Dr Fayza Al Shamali dated 12 May 2018 in response to that invitation. 

3. The Tribunal Member then said to the applicant that if the Tribunal Member asks things today that the applicant did not understand to please let the Tribunal Member know. The transcript then discloses that the applicant confirmed that the relationship had ended. The following exchange then took place between the Tribunal Member and the applicant:

   “Member: OK now would you like to make any claims today about the exceptions and I will just ask you a few questions, the sponsor has she died at all?

   Applicant: No.

   Member: Children have you guys had any in the relationship?

   Applicant: No.

   Member: And do you have any formal claim pardon me you wish to make in terms of family violence?

   Applicant: You mean between me and Dima?

   Member: Mm.

   Applicant: No. The story I had submitted I had explained what happened.

   Member: OK alright OK so alright you are not making any of the claims as the exceptions I will go to your submission OK so marriage so you guys were together for one year and three months is that right?

   Applicant: Yes.”

   (Errors in original)

4. The applicant told the Tribunal that a few months after the marriage on 20 April 2014, the Sponsor started changing the way she behaved and looked and was treating the applicant “in a very unfair way”. The applicant stated that before they got divorced, the Sponsor “kept snapping away from me and talking and behaving in front of me as if I am a stranger, not like a person that she knows and a person that loves her.”

5. The applicant then stated “every time I feel unwell I want to speak to somebody I go and see her because I don’t feel safe and comfortable talking to someone else except her”.

6. The Tribunal Member then raised with the applicant that he had not claimed any of the exceptions to the Partner Visa when he was no longer in a relationship with the Sponsor. The applicant responded that he wished the Tribunal Member to listen to his story and hear his story.

7. The Tribunal Member then heard from a witness in support of the applicant who stated as follows:

   “It has ended now they're relationship but through it all what I wanted to say is a lot of people go overseas and get married but it is not always the person that comes here that is at fault it is the people that are here that abused everything that is going around them so in my opinion like he was the victim he did everything right for this marriage he did everything right by her and her family, helped the grandma and did everything possible to keep it together he just couldn't.

   …

   Sometimes look sometimes it's not physical abuse sometimes the mental abuse is worse than the scars mental abuse stays inside but the scars you can see them but he was very hard done by and I just think there is exceptions [unclear] like just like our Australian citizens she is an Australian citizen she is here she brought him they gave him the visa because he came on her grounds but there should be something else a law that actually does right by people that come out wholeheartedly do right by you and then you just decide overnight I don't want them no care in the world but anything else and then they are just left to pick up the pieces on their own.

   …

   There is a lot I can't tell you how much emotional abuse and her family too like initially the mum would say to me Muhammad is a good boy what am I going to do my daughter is doing this my daughter is doing that and then I don't know her husband spoke to her and then it turned and they are just vulgar you know just vulgar people like I don't even want to go there you can't even talk to them they are just so vulgar you know and he was living in that environment and even the grandma she used to cry all the time we didn't do anything wrong what am I going to do and he is her grandson at the end of the day but she is old and frail she can't do anything no one can do anything.”

   (Errors in original)

8. At the end of the witness’s evidence the Tribunal Member asked her if there was anything else she wished to raise with the Tribunal and she answered, “No Sir, I don’t”. The Tribunal Member then invited the applicant to raise anything further, to which the applicant responded that he was hoping for a better life and that his life had been ruined from what had happened.

9. The first respondent submitted that the applicant could not rely on sections of the transcript in his written submissions as a claim of family violence because oral evidence at the hearing cannot make out a claim of family violence under div.1.5 of the Regulations and in any event the transcript confirms that a claim of family violence was expressively disavowed by the applicant and was not otherwise clearly advanced.

10. The applicant also relied on the psychologist report as evidence of his suffering domestic violence. At its highest, the report discloses the following information:

    “Mr Abou Jibal felt that Ms Dima no longer cares about him or loves him as used to be. She wasn’t treating him nicely or with love as before marriage. He was waiting for her to come from outside for hours and when she comes; she ignores him and goes to sleep. He was suffering but very patient with her never criticized or told her stuff annoying her. He told her many times that: he loves her; and if there is any conflict or misunderstanding between them, they can resolve it.

    Ms Dima was getting changed a lot and once; Mr Abou Jibal asked her about the reason behind this but she screamed loudly and said : nothing. It was the first time she screamed at him, he got frustrated and shocked as didn’t do anything bad to her. Their sexual relationship got affected as well, Ms Dima was treating him as strange man, he felt like he lost his soul.”

    (Errors in original)

11. The report also discloses that the applicant said that when the Sponsor decided to leave him they had a big fight and she was rude and impolite to him.

12. The applicant was then diagnosed as suffering from chronic and complex anxiety stress disorder and major depressive disorder and that “on compassionate grounds; it is highly recommended that he is supported by granting him the permanent residence visa that will not exacerbate his symptoms.”

13. A letter, dated 15 September 2017, from the applicant to the Department in support of his visa application does not make mention of being a victim of domestic violence. The applicant stated that he was in shock in 2015 when the Sponsor told him she no longer wanted the relationship but that she was stubborn about that decision. The applicant then spoke of his depression as a result.

Submissions

1. The applicant also relied on a submission dated 29 October 2018.

2. By that submission the applicant stated that the Tribunal had a psychological report of a Dr Fayza Al Shamali, which explained the applicant’s background information and his depression and anxiety since his wife left him. The applicant stated that in his view he is a victim of domestic violence because he was abused by his ex-wife and that the abuse was confirmed in the psychological report.

3. The applicant stated that, “during the hearing with the Tribunal and as a result of my depression, it did not click to my mind the issue of domestic violence as I relied on the report of Dr Faiza, which demonstrated that my symptoms and depression are the result of being the victim at the hand of my ex-wife.” The applicant then identified various parts of the transcript upon which he relied as follows:

   “The transcript the Member explained on p.3 lines 1 and 2 the Member says “unless one of the exemptions applies in your circumstances” also at line 17 “if you are no longer in relationship with her, the sponsor, then there were s exemptions that you could still be granted the partner visa”.

   During the hearing with the Tribunal and as a result of my depression it did not click to my mind the issue of domestic violence as I relied on the report by Dr Faiza which demonstrated that my symptoms and depression are the result of being victim at the hand of my ex-wife. I clearly said on p. 9 of the transcript, line 19, “I don't feel safe and comfortable talking to somebody else except her” meaning Dr Faiza. My witness Tania on p.12 of the transcript clearly on line 4 talks about abused. My witness also on p.14 line 9 of the transcript spoke about not only physical abuse but the mental abuse which is worse than the scars.

   Mental abuse stays inside and she says “I just think there is exceptions” which means domestic violence. On p. 15 my witness says line 4 “there is a lot I can't tell you how much emotional abuse”. On p.15 line 26 "I have been seeing Dr Al Chamali for a few years and my witness on line 21 says “it will be very tragic”. On p.16 my witness on line 3 talks about “heals all wounds”. On p.16 I said “that from what happened got totally ruined and what I had gone through, like everything was taken away from me, everything was gone from my life.” (Line 18 onwards).

   I draw your kind attention Your Honour to the decision by the Tribunal Member p.162 para 18 of the CB the Member accepted that I was the victim of the relationship and on p.162 para 20 the Member said “the applicant does not claim he has suffered family violence”.”

   (Errors in original)

4. The essence of the applicant’s complaint before this Court is that the Tribunal failed to recognise him as a victim of domestic violence.

5. In essence, the first respondent submitted that the Tribunal did not fail to consider a claim of family violence in circumstances where the applicant expressly disavowed any claim of family violence; and a claim of family violence did not clearly arise on the materials before the Tribunal (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [61] per Black CJ, French and Selway JJ).

6. The first respondent submits that the applicant’s written submissions misrepresent the nature of the evidence presented to the Tribunal and that the Tribunal had clearly explained to the applicant that family violence was a relevant exception and invited the applicant to comment on whether he had experienced any family violence.

7. The first respondent submitted that any evidence of a claim for relevant family violence must be presented in accordance with div.1.5 of the Regulations and that no such evidence arose on the material before the Tribunal. In particular, the first respondent submitted that there had been no evidence of any non-judicially determined claim for family violence; no evidence of an injunction, court order or conviction for family violence or joint undertaking by the alleged victim and alleged perpetrator to a court; and, the Partner Visa application did not include any claim of family violence.

The Delegate’s decision

1. The Delegate referred specifically to certain circumstances in which an applicant could be considered for the grant of permanent residence where the relationship with the Sponsor has ceased. Those were stated to include “the applicant or dependent child is the victim of family violence committed by the sponsoring partner.” The Delegate was not satisfied that any of the exceptions were met including “any incidence of family violence”.

The Tribunal’s decision

1. On 19 April 2018, the Tribunal wrote to the applicant informing him that it is a requirement for the grant of his visa that at the time when the application is made and at the time of decision he is the spouse or de facto partner of the Sponsor, “unless one of the exceptions applies”. The letter went on to invite the applicant to provide information on, inter alia, “family violence”. It was in response to that invitation that the applicant provided the psychologist’s report.

2. On 28 May 2018, the Tribunal wrote again to the applicant informing him that his material had been considered but that the Tribunal was unable to make a favourable decision on that information alone. Again the applicant was invited to send any further evidence or material that he wished the Tribunal to consider.

3. In the form headed Response to Hearing Invitation, the applicant was invited to identify any issue that may affect his ability, or that of any other person attending, “to take part in the hearing (e.g. a health problem or disability)”. The applicant, in returning that Response to Hearing Invitation to the Tribunal, did not provide any further details of any health problem or disability that would affect his ability to attend or take part in the hearing.

4. The Tribunal noted that at the time of decision the applicant was no longer in a spousal or de facto relationship with the Sponsor and noted that the applicant had been invited to give comments on or respond to information in writing in relation to any exception, including on family violence.

5. The Tribunal noted that the applicant appeared before the Tribunal on 26 June 2018 together with his friend and witness. The Tribunal noted that the applicant confirmed that his relationship with the Sponsor had ceased and that the Sponsor has withdrawn sponsorship. The Tribunal found in those circumstances that the applicant could not meet cl.801.221(2) of Schedule 2 of the Regulations.

6. The Tribunal then noted that it explained to the applicant that if he was no longer in a relationship with the Sponsor, there were exceptions under which he could be granted the Partner Visa which included family violence. The Tribunal noted that it asked the applicant if he wished to make any claims in relation to any of those exceptions and noted that the applicant did not claim any of the exceptions. The Tribunal noted that the applicant said that he did not wish to make a formal claim of family violence from the Sponsor.

7. The Tribunal noted that it discussed the psychological report with the applicant and the history of his relationship with the Sponsor. The Tribunal noted that the applicant talked about “the corrosive psychological impact the loss of his relationship had upon him”. The Tribunal noted the psychologist’s diagnosis and recommendations. However, the Tribunal noted that the question before it was whether the applicant at the time of decision meets the requirement that he be in a spousal relationship and, if he fails to do so, does he meet any of the exceptions in the Regulations. The Tribunal found that the evidence and assertions of the psychologist in his assessment report did not meet any of those criteria. In particular, the Tribunal noted that there was no claim made or evidence presented in the psychologist report of the applicant meeting any of the relevant exceptions in his visa subclass.

8. The Tribunal referred to the applicant’s witness’s evidence and her evidence that the applicant was the victim in the relationship and did everything right by the Sponsor and her family “who were vulgar and had abused him”. The witness said that she was the one who recommended he see a psychologist as he was left without any family support once the relationship had ended.

9. The Tribunal noted that it had very little flexibility in the matter in circumstances where the applicant had applied for a Partner Visa, the relationship had ended and the applicant did not meet any of the specific exceptions available under the Migration Act 1958 (Cth) and the Regulations. The Tribunal again noted that the applicant did not claim that he had suffered family violence and that there was no evidence before it that the Sponsor had died or that there were any children, or responsibility towards any children that remained with the applicant. In the circumstances, the Tribunal affirmed the decision under review.

This Court’s decision

1. The psychologist report is not evidence of a claim for family violence. The applicants written claims and his evidence to the Tribunal do not and could not be taken to be making a claim of family violence at the hands of the Sponsor.

2. The issue of family violence was raised for the applicant by the Delegate. The specific legislation was provided to the applicant which refers to the criteria to be satisfied at the time of decision and which referred specifically to whether the applicant had suffered family violence at the hands of the Sponsor. Upon his lodging a review application with the Tribunal, the Tribunal wrote to the applicant on 4 November 2017, inviting him to provide material or written arguments. On 9 April 2018, the Tribunal wrote again to the applicant inviting him to provide further information about whether one of the exceptions applied to him and again referring specifically to family violence.

3. Moreover, at the hearing, the Tribunal raised with the applicant the issue of family violence in clear terms when it said:

   “Member: And do you have any formal claim pardon me you wish to make in terms of family violence?...

   Applicant: No. The story I have submitted I explained what happened.

   Member: OK alright OK so alright you are not making any of the claims as the exceptions I will go to your submission OK so marriage so you guys were together for one year and three months is that right?

   Applicant: Yes”

4. The Applicant was again asked before the Tribunal hearing closed, if there was anything further he wished to say, to which the applicant answered, No.

5. Further, there is no evidence to suggest that the applicant made complaints of family violence to the psychologist in those terms. At its highest, the applicant told the psychologist that the applicant screamed at him, did not treat him nicely, ignored him and goes to sleep and that they had a big fight where she was rude and impolite to him.

6. I accept the first respondent’s submission that an independent expert opinion may be obtained pursuant to reg.1.23(10)(c)(i) of the Regulations if an application for a visa includes a non-judicially determined claim of family violence. However, as the applicant’s application did not include a non-judicially determined claim of family violence, as the Tribunal so held, there was no requirement to obtain any expert opinion.

7. In the circumstances of the content of the psychologist report, and the Applicant’s evidence before it, it was open to the Tribunal not to infer that any such claim of family violence arose from the psychologist’s report. Moreover, I accept that the evidence in the report was not put to the Tribunal to prove any factual issue relating to a claim of family violence. Rather, it was to provide evidence of the psychological state of the applicant because of the breakdown of his relationship with the Sponsor (see CSO15 v The Minister for Immigration and Border Protection [2018] FCAFC 14 (7 February 2018) at [63] per Tracey, Mortimer and Moshinsky JJ).

8. I accept the submission of the first respondent that the applicant’s witness’s evidence was not directed towards a claim of relevant family violence. In any event, in the absence of any claim made by the applicant, oral evidence made at the Tribunal hearing by the witness was not relevant evidence for the purpose of a non-judicially determined claim of family violence.

9. On the evidence and material before the Tribunal, its findings and conclusions that the applicant did not meet the relevant criteria for the grant of the Partner Visa were open to the Tribunal for the reasons it gave. The Tribunal’s findings were logically probative of the issues before it and were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). On the applicant’s own evidence he could not meet the mandatory criteria of being in a spousal relationship at the time of decision, nor could he meet any of the relevant exceptions.

10. Accordingly, the ground of the application is not made out.

11. Otherwise, the Tribunal’s decision and the conduct of its review is not affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  5 December 2018