Mabirou Mounguengue v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 537
•6 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mabirou Mounguengue v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 537
File number: MLG 2694 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 6 July 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Partner (Temporary) (Class UK) visa – whether Tribunal decision was based on a narrow and inflexible interpretation of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – whether Tribunal was required to consider the best interests of a child – whether Tribunal ignored relevant material and relied on irrelevant material – whether Tribunal failed to consider the interests of the sponsor – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5F, 65, 349, 476, 477
Migration Regulations 1994 (Cth), reg 1.15A, cll 820.211, 820.221(1)
Cases cited: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 29 June 2022 Place: Perth Counsel for the Applicant: Mr S Robi Solicitor for the Applicant: Kaprivi Legal Counsel for the First Respondent: Mr M P Cleary Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2694 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRANCIS MAURICE MABIROU MOUNGUENGUE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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
JUDGE LADHAMS:
INTRODUCTION
By application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) on 11 December 2017, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 28 November 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).
The applicant advanced five unparticularised grounds of application. The main complaint of the applicant appears to be that the Tribunal failed to consider the best interests of the applicant’s daughter, who was a minor at the time of the Tribunal decision. For reasons explained below, the applicant has failed to establish jurisdictional error in the Tribunal decision and I therefore dismiss the application to this Court.
BACKGROUND
The applicant is a non-citizen who applied for the partner visa on 25 June 2014 on the basis of his relationship with Ms Doumbi Ngomo (sponsor), who sponsored him for the partner visa application. The applicant and the sponsor were married in the United States in 2003 and have a daughter who was born in 2004. The sponsor and the child left the United States in 2007. The applicant arrived in Australia in April 2014 and claimed to have lived with the sponsor and their child from that time.
On 10 November 2016 a delegate of the Minister refused to grant the applicant a partner visa.
On 16 November 2016 the applicant lodged an application to the Tribunal for review of the delegate’s decision.
The Tribunal convened a hearing on 9 August 2017 and on 28 November 2017 the Tribunal affirmed the decision under review.
TRIBUNAL DECISION
The Tribunal accepted that the applicant and the sponsor were married to each other in July 2003 in a marriage which was valid for the purposes of the Migration Act, as required by s 5F(2)(a).
The Tribunal expressed concerns about the credibility of the evidence given by the applicant and the sponsor. This was primarily due to omissions in the information the applicant included in the application and because the sponsor had married another man (in a marriage that had since been annulled) and sponsored him for a partner visa application while she was married to the applicant.
The Tribunal considered the factors set out in reg 1.15A of the Migration Regulations 1994 (Cth) (Regulations) and was not satisfied that the applicant and the sponsor were in a genuine married relationship.
The Tribunal accepted that there was some sharing and pooling of finances by the applicant and the sponsor, including in relation to the child’s school fees. However, overall the Tribunal found that the evidence in relation to the financial aspects of the relationship was not strong and gave the evidence less weight because of its concerns about the credibility of the applicant and the sponsor.
The Tribunal accepted that the applicant, the sponsor and the child live in the same household. However, due to its credibility concerns, the Tribunal was not satisfied that the applicant and the sponsor live in the same household in a genuine married relationship.
The Tribunal considered the evidence, including from third parties, in relation to the social aspects of the relationship. The Tribunal found that there was little evidence before it that the relationship was widely declared socially or that the applicant and the sponsor plan and undertake social outings together with others, other than with the child and the sponsor’s nephew. Having considered the statements and oral evidence individually and cumulatively, and taking into account its credibility concerns, the Tribunal was not satisfied that the applicant and the sponsor represented themselves widely in the community as spouses.
The Tribunal considered evidence in relation to the nature of the commitment between the applicant and the sponsor. The Tribunal did not accept that the applicant and the sponsor remained in a relationship between 2007 and 2013 and assessed the relationship on the basis that the applicant and the sponsor reconciled in late 2013. The Tribunal considered that the evidence provided to show that the applicant and the sponsor were in a married relationship at the time of the application was limited, and ultimately was not satisfied that the applicant and the sponsor were in a genuine married relationship at the time of the application. In reaching this finding, the Tribunal again took into account its ‘significant credibility concerns’ and the ‘propensity of the parties to provide information that is not correct, complete or up-to-date’.
The Tribunal was not satisfied that the applicant met s 5F(2)(b)-(d) of the Migration Act. Having found that the requirements of s 5F(2) were not met at the time of the application, the Tribunal concluded that the applicant did not meet cl 820.211(2)(a)[1] of the Regulations.
[1] This clause requires that the applicant be the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen at the time of the application.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant advances five grounds of application:
1.The decision made by the delegate of the Minister was based on a narrow and inflexible interpretation of the Migration Act and Regulations.
2.The decisions made by the delegate of the Minister and Tribunal member failed to take into account that the applicant is the father of a child that is an Australian citizen, whose best interest ought to be taken into consideration.
3.The decision made by the Tribunal member ignored relevant material and relied on irrelevant material.
4.The decision maker at the Tribunal made an error of law by not taking into account the best interest of the child.
5.The decision maker at the Tribunal made an error of law by not taking into account the interest of the sponsor Australian citizen.
The evidence before the Court comprised the court book.
The applicant’s lawyer initially indicated at the hearing that he wished to rely on an affidavit affirmed by the applicant on 29 May 2022 and filed on 31 May 2022. The Minister’s lawyer objected to this affidavit on the basis of relevance as many of the annexures post-dated the Tribunal decision and therefore could not have been before the Tribunal. The admissibility of the affidavit was discussed at the hearing and the applicant’s lawyer conceded that the information and annexures that were not before the Tribunal were not relevant to the question before the Court, namely, whether the Tribunal decision is affected by jurisdictional error. Those parts of the affidavit that comprised material that was before the Tribunal were effectively already in evidence because they were included in the court book. In these circumstances, the applicant’s lawyer agreed that it was not necessary to read the affidavit.
CONSIDERATION
The applicant filed written submissions shortly before the hearing. Those written submissions did not directly address the grounds of application. Instead, the submissions simply set out some background, gave a general explanation of jurisdictional error, and asserted, without elaboration, that the Tribunal failed to complete the exercise of its jurisdiction by not finding that the requirements of s 5F of the Migration Act were met and by failing to lawfully consider the matters set out in reg 1.15A(3) of the Regulations because it failed to consider evidence that the applicant and the sponsor had an Australian citizen child of the relationship in their care.
At the hearing, the applicant’s lawyer initially indicated that he wished to rely on his written submissions without making any oral submissions. I explained to the applicant’s lawyer that his five grounds of application did not contain particulars and it was therefore difficult to understand from those grounds the nature of the jurisdictional error asserted. I further explained that his written submissions were very general in nature and did not identify any alleged jurisdictional error with sufficient specificity to enable the Court to find that one or more grounds of application was established. I gave the applicant’s lawyer a further opportunity at the hearing to explain in greater detail the jurisdictional error that the applicant asserts was made by the Tribunal.
The oral submission advanced on behalf of the applicant was that the applicant and the sponsor have a child who was a minor at the time of the Tribunal decision and the Tribunal should have looked at the best interests of the child. When I asked the applicant’s lawyer to identify the source of that obligation the applicant’s lawyer referred to reg 1.15A(3)(b) of the Regulations. The applicant’s lawyer submitted that the Tribunal should not have ignored the fact that if the applicant is unsuccessful in his application and is required to return to the United States, this would entail separation from his daughter.
The oral submission appears to relate to grounds 2 and 4 of the application and will be treated as relevant to those grounds. The issues raised by these grounds are whether the Tribunal failed to consider that the applicant had a child who was a minor at the time of the Tribunal decision; whether it failed to take into account the best interests of the child; and if so, whether this amounts to jurisdictional error.
Any failure by the Tribunal to consider the existence of the child or the best interests of the child will only amount to jurisdictional error if it was something that the Tribunal was required to consider in the course of its review. This directs attention to the nature of the Tribunal’s task and the criteria it was required to consider.
In conducting the review, the Tribunal was required to consider for itself whether the delegate’s decision was the ‘correct or preferable’ decision: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [37]. The Tribunal was able to exercise all the powers and discretions conferred by the Migration Act on the person who made the reviewable decision: s 349(1) of the Migration Act.
In the present matter, the delegate of the Minister as the original decision-maker was required to consider a valid application for a visa. Pursuant to s 65(1) of the Migration Act, if the Minister was satisfied that, amongst other things, the applicant met the criteria for the visa prescribed by the Migration Act or the Regulations, the Minister was to grant the visa and, if not so satisfied, the Minister was to refuse to grant the visa.
Similar considerations applied to the Tribunal. Upon review, if the Tribunal had been satisfied that the applicant met the criteria for a partner visa, the Tribunal could have set aside the delegate’s decision and substituted a new decision. However, where the Tribunal was not satisfied that the applicant met the criteria for a partner visa, the Tribunal was required to affirm the delegate’s decision. There was no discretion conferred on the Tribunal to grant a visa where the criteria for the visa were not met.
The criteria for a partner visa include cl 820.211(2)(a) which requires the applicant to be the spouse or de facto partner of the sponsor at the time of application. An applicant is also required by cl 820.221(1) to continue to be the spouse or de facto partner of the sponsor at the time of the decision, subject to a few exceptions that have no application in the present case. The term ‘spouse’ is defined in s 5F of the Migration Act, which provides:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
For the purposes of s 5F(3), in determining whether the criteria in s 5F(2) were met, the Tribunal was required to have regard to the following matters in reg 1.15A(3) (emphasis added):
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of sharing any day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
It can be seen from this that, in forming a view as to whether the applicant was the spouse of the sponsor within the meaning of s 5F, the Tribunal was required to consider whether the applicant and the sponsor share the joint care of any children. There was no separate requirement to consider the best interests of any minor children in Australia.
In the present case, the Tribunal was clearly aware and took into account that the applicant and the sponsor have a child together. The Tribunal referred to the child at a number of paragraphs in its reasons including:
(a)at [13] the Tribunal noted that the child was born in 2004 and is a citizen of the United States and Australia;
(b)at [14] the Tribunal noted that the child left the United States in 2007 and arrived in Australia in May 2008;
(c)at [21], addressing the period in which the applicant and the sponsor were living in different countries, the Tribunal said:
The applicant told the Tribunal that even though he and the sponsor were separated (since 2007), “it wasn’t really separation.” He said even though they were far away from each other, they talked on the phone, kept in contact and took care of [the child]. There has been no evidence provided that this was the case and the Tribunal does not accept that from 2007 to 2013 the relationship was continuing, or that the separation was temporary, or that the parties jointly cared for [the child]…
(d)at [27] the Tribunal noted that it was not in dispute that the applicant and the sponsor are named as the parents of the child born in 2004 in Michigan;
(e)at [32] the Tribunal discussed some of the evidence given by the child and said:
[The child], who is 13 years of age, is a citizen of both Australia and the USA. [The child] gave oral evidence at the hearing ... [The child] said that if the visa is not granted she would go back to America, but would rather stay in Australia, which did not seem to indicate she thought she would suffer significant hardship in America. However, as she is a child, no weight has been given to this…
(f)at [37], in discussing the financial aspects of the relationship, the Tribunal considered that there was no evidence that the applicant provided any financial assistance to the child until he arrived in Australia in 2014, and accepted that the applicant had travelled to Australia for a visit in February 2013 and that the sponsor and the child travelled to the United States for two months from December 2013;
(g)at [38] the Tribunal acknowledged the evidence from the applicant and the sponsor that they had lived together with the child since April 2014;
(h)in addressing the nature of the household, at [44] the Tribunal referred to evidence that the applicant and the sponsor share a two bedroom flat with the child and the sponsor’s nephew and at [46] the Tribunal accepted that the applicant, the sponsor and the child live in the same household; and
(i)at [65] the Tribunal noted that the sponsor appeared to have largely raised the child as a single parent since 2007 and expressed the view that there was little evidence that the applicant had a parental bond with the child from at least 2007 to 2013.
At the hearing, I referred the applicant’s lawyer to some of these paragraphs, including those addressing the nature of the household, and invited him to explain to the Court why the applicant says they are insufficient. The applicant’s lawyer’s response was that the Tribunal should not have ignored the fact that if the applicant is unsuccessful in his visa application and is required to return to the United States this would necessarily result in a separation from his child. The consequences of the Tribunal’s decision on a child affected by the decision are not something that the Tribunal was required to consider in assessing whether the applicant was the spouse of the sponsor within the meaning of s 5F of the Migration Act. Nor was there any obligation on the part of the Tribunal to consider the best interests of the child. As the Minister submitted, and the applicant acknowledged, this can be contrasted with some of the discretionary decisions that are made under the Migration Act, including in relation to character cancellations and refusals, where the decision-maker is required to have regard to the best interests of the child.
In the present case the Tribunal acknowledged that the applicant and the sponsor have a child in its consideration of the nature of the household and the applicant has not established that the consideration of any joint care of the child by the Tribunal amounts to jurisdictional error.
Grounds 2 and 4 are not established.
No submissions were advanced by the applicant addressing grounds 1, 3 and 5. While the applicant does not appear to have pressed these grounds, he has not expressly abandoned the grounds, so I will address them briefly.
Ground 1 refers to the delegate’s decision and complains that the delegate’s decision was based on a narrow and inflexible interpretation of the Migration Act and Regulations. The Court does not have jurisdiction to review the delegate’s decision, which is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act: see s 476(2)(a) of the Migration Act.
To the extent that the ground might be interpreted as alleging error in the Tribunal decision, it is not established. There is nothing identified by the applicant, and nothing on the face of the Tribunal decision to suggest that the Tribunal did not properly apply the relevant legislation. I accept the Minister’s submission that it was open to the Tribunal, on the evidence before it, to find that the applicant and the sponsor did not meet the definition of ‘spouse’ taking into account the factors in reg 1.15A(3) and therefore that the applicant did not satisfy cl 820.211(2)(a). Further, as mentioned above, in circumstances where the Tribunal was not satisfied that the applicant met a mandatory criteria for the visa, it had no option but to affirm the delegate’s decision.
Ground 3 is an unparticularised assertion that the Tribunal relied on irrelevant material or ignored relevant material. Other than the assertion that the Tribunal did not take into account the best interests of the child, which I have addressed above, the applicant has made no attempt to identify any relevant consideration that the Tribunal was bound to take into account but did not, or any irrelevant consideration that the Tribunal took into account when it was prohibited from doing so. The applicant has not established jurisdictional error by this ground.
Ground 5 alleges that the Tribunal erred by failing to take into account the interests of the sponsor. As the Minister has identified in his submissions, there was no relevant criteria that required the Tribunal to take into account the interests of the sponsor in determining whether the applicant and the sponsor were in a genuine spousal relationship. This ground does not establish jurisdictional error and is dismissed.
CONCLUSION
The applicant has not established jurisdictional error in the Tribunal decision and I therefore dismiss the application to this Court.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 July 2022
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