Lawal v Minister for Immigration

[2018] FCCA 562

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 562

Catchwords:
MIGRATION – Migration – review of decisions – non-protection visa (Pt 5-reviewable) decisions – no jurisdictional error demonstrated.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994, cls.309.211, 309.221

Applicant: LUKMAN LANRE LAWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 318 of 2017

Judgment of: Judge Jarrett

Hearing date: 2 February 2018

Date of Last Submission: 2 February 2018

Delivered at: Brisbane

Delivered on: 2 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 10 April, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 318 of 2017

LUKMAN LANRE LAWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 24 March, 2017. That decision affirmed a decision of a delegate of the first respondent not to grant to the second applicant a Partner (Provisional) (Class UF) visa.

2. The application before the Tribunal involved three applicants.  The second applicant was the visa applicant.  The first applicant was the visa applicant’s sponsor.  He is an Australian citizen.  And the third applicant is a child of the first and second applicants who was born, it seems, after the application for the visa was made.  The Tribunal determined that in respect of the third applicant, it had no jurisdiction.  The applicants before me take no issue with that finding by the Tribunal. 

3. By this application and the grounds of review set out in it, the applicant – the visa sponsor – argues that, first, the respondent made a jurisdictional error by not giving sufficient consideration to the applicant’s evidence that he was in a spousal relationship as defined by s.5F of the Migration Act 1958 (Cth) with the visa applicant, and secondly that the respondent made a jurisdictional error by not giving sufficient consideration to the visa applicant and sponsor’s evidence that the visa applicant and sponsor were in a genuine spousal relationship with each other.

4. The applicant’s grounds of review identify the central issue that troubled the Tribunal and the first respondent’s delegate before the Tribunal about the application. To succeed on her visa application, the visa applicant needed to establish that she was the spouse of her sponsor – the applicant in these proceedings. Whether somebody is a spouse for the purposes of the Migration Act is determined by reference to s.5F of the Act. Section 5F has a number of aspects to it. They were properly and accurately, in my view, summarised by the Tribunal in paragraph 10 of the Tribunal’s reasons for decision. As to those matters, the Tribunal was satisfied that the applicant and the visa applicant were validly married. They were married in 2014 in Nigeria. The Tribunal determined, then, that it needed to consider the other aspects of s.5F of the Act to make a determination about whether there was a spousal relationship between the visa applicant and her sponsor.

5. After setting out in its reasons for decision the factual matters that the applicants raised before the Tribunal, the Tribunal turned to consider the question of the applicant’s credibility.  In that respect, the Tribunal was very concerned.  The Tribunal, in some detailed reasons, found that the applicant here (the sponsor) was not a witness of truth.  The Tribunal gave six detailed reasons why it concluded that there was reason to be circumspect – and that is putting it mildly – about the applicant’s credit. 

6. Those reasons, in part at least, turned upon significant inconsistencies between:

   a)the evidence given by the visa applicant and the sponsor when the matter was before the delegate;

   b)the evidence in some documents that were completed by them for the purposes of the visa application; and

   c)what was said by them before the Tribunal. 

   Perhaps the most significant issue was the emergence of a proposition from the applicants that their relationship had not commenced when they had contended that it had commenced, but that it had, in fact, commenced at some other time.  The Tribunal found that the applicants changed their evidence about the commencement of their relationship because they needed to avoid some incontrovertible evidence that showed that at the time they first contended their relationship commenced the sponsor was married to and, for some purposes at least according to the evidence, in a committed relationship with another person.

7. In an attempt to explain the difficulties that arose out of all of that, it was suggested that there was, in fact, a surrogacy arrangement between the sponsor and a previous partner and the visa applicant.  The Tribunal explored all of that in its reasons for decision in a very detailed way.  The Tribunal rejected the applicant’s explanations for the apparent inconsistencies in his case.  The Tribunal found that both the visa applicant and the sponsor were not witnesses of truth.  In particular, it found that the sponsor was not a credible witness and, as the first respondent points out, the Tribunal considered that the sponsor was making his story up as he went along.

8. The Tribunal then, after making the observations to which I have just referred about credibility, considered the financial aspects of the parties’ relationship, the household and social aspects of the alleged relationship and the suggestion that they were committed for the relevant period of time to each other and to an exclusive relationship with each other. The Tribunal considered those matters in the detail that was permitted by the evidence before the Tribunal. However, the Tribunal concluded that none of those matters tended to suggest that there was the requisite relationship between the visa applicant and the sponsor sufficient to satisfy s.5F of the Act.

9. The Tribunal, therefore, concluded that the visa applicant did not meet the requirements of either clauses 309.211 and 309.221 of schedule 2 of the Migration Regulations 1994 (Cth), respectively time of application and time of decision criterion, for the grant of the visa.  Accordingly, the decision under review was affirmed. 

10. The grounds of review relied upon by the applicant before me demonstrate that the applicant does not assert that the Tribunal made a jurisdictional error, notwithstanding that he uses that phrase in both grounds set out in the application for review.   The real complaint is that the Tribunal determined the application against he and the visa applicant and the pleas in the grounds of review before me to the Tribunal not having given “sufficient consideration” to various aspects of the evidence is nothing more than an appeal for merits review.  That is impermissible on this application.  The authorities are set out in the first respondent’s written submissions and I need not repeat them.

11. The oral submissions made by the applicant today in support of his application do not reveal anything beyond a claim to merits review and whilst one can understand and be empathetic towards them, the proposition that he lives in Australia and his wife and child live in Africa, is not of itself, enough to demonstrate that there is a jurisdictional error attending the Tribunal’s decision sufficient to engage this Court’s jurisdiction to set it aside. 

12. No jurisdictional error is apparent from the Tribunal’s reasons, in my view.  In those circumstances, the application for review must be dismissed. 

[RECORDED: NOT TRANSCRIBED]

1. Ordinarily, in applications of this nature, costs follow the event unless there are special circumstances which indicate that that rule ought not be applied.  There are no such special circumstances here.  Costs should follow the event.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  9 March 2018