Mehmood v Minister for Immigration

[2018] FCCA 1320

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHMOOD v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1320

Catchwords:
MIGRATION – Visa – partner visa – whether applicant was ‘spouse’ of sponsor – whether parties had mutual commitment to shared life – whether relationship genuine and continuing – whether applicant and sponsor had separated and were living apart – refusal to grant adjournment – no error demonstrated – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1997 (Cth), s.40(1)(c)

Migration Act 1958 (Cth), ss.5F and 65

Migration Regulations 1994 (Cth), r.1.15A(3)(a)-(d), cl.820.211(1)(d) & (2)(a) and cl.820.221(2) & (3) of Schedule 2

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant: YASIR MEHMOOD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 42 of 2017

Judgment of: Judge Heffernan

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Adelaide

Delivered on: 4 June 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms H Stanley

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant do pay the costs of the first respondent fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 42 of 2017

YASIR MEHMOOD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for constitutional writs relating to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 14 September 2015. That decision affirmed an earlier decision of a delegate of the Minister, dated 27 January 2017, refusing to grant the applicant a Partner (Temporary) (Class UK) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant has raised one ground in his application as follows:

   “Tribunal made an error in its decision by concluding that I am not spouse of my Australian wife anymore.  I admitted during the tribunal hearing that my relationship is going through a bad patch, but, whose relationship doesn’t.  That is why I requested extra time and that hearing to be adjourned.  I wanted this extra time to bring our relationship back on track.  This immigration process over the years has caused a lot of stress to our relationship.  The immigration department refused my first partner visa application.  My review application with tribunal was successful.  Tribunal ordered that I meet the grounds which Immigration believed I did not.  Tribunal overturned their decision and sent back to the Immigration.  But, the immigration department knocked it down again, stating that I am not her spouse as per their criteria.  I believe it is misuse of power since the first tribunal conducted our hearing and found us meeting the criteria.  This to-and-fro process has been the major contributor to the present state of my relationship.  The deteriorating health of my wife who has already been suffering major illnesses for the last 20 years, to name a few, but not including all;  such as Epilepsy, Depression, Sleep apnoea, made it impossible for her to cope up with this additional stress.  This process and my visa condition was making it difficult for me to find any/regular work and the resulting stress caused by financial pressures further took toll on her health.  That is the reason I did not inform her and ask her to come to this hearing.  She is mentally stressed out and has given up all her hope and decided to stay apart for a while.  This does not mean that our relationship is over.  We are still very much married.  I still see her often for a cup of coffee or so, to check on how she is doing and to try and make her better and get this relationship back to a healthy and happy state.  Therefore, I requested extra time to mend my relationship during my second tribunal hearing.  By overstepping their authority and deciding that my relationship is totally over, I think the decision maker has made a fundamental error.  We are human beings and there are going to be ups and downs in life and relationships.  I am still married to my wife and I love her.  I have not given up and I will not.  Should I be granted some time to work on my relationship I am very confident that her health and mental state will improve and we both can together present ourselves and satisfy the decision-makers that we still are in a genuine married relationship.”

   (re-produced verbatim)

3. The applicant appeared before me unrepresented.  On 17 March 2017, a Registrar of the Court gave the applicant leave to file any amended application and affidavit by 12 May 2017.  The applicant was also given leave to file and serve such further material, including the transcript of the proceeding before the second respondent, that he may rely upon at the hearing by 12 May 2017.  The applicant was also ordered to file and serve any outline of submissions 14 days prior to the hearing.  No further application, supporting materials, or outline of submissions were filed by the applicant and he did not seek to have this matter listed for further directions prior to the final hearing of the matter. 

4. The background to these proceedings is not in issue.  The applicant is a citizen of Pakistan and he arrived in Australia in January 2007.  At that time he held a Student (C class TU) (Subclass 572) visa.  When that visa expired, he was granted a succession of student and bridging visas.  Upon the expiration of those visas, he became an unlawful non-citizen between 24 April 2012 and 26 September 2013. 

5. The applicant lodged an application for a spouse visa on 29 September 2014.  This was based on his relationship with an Australian sponsor, Donna Faith Mehmood.

6. That application was initially refused by a delegate of the Minister but ultimately that decision was overturned by the Tribunal with an indication that the applicant did, in fact, meet the requirements of cl.820.211(1)(d) of the Migration Regulations1994 (Cth) (‘the Regulations’), and for that reason compelling reasons did exist to waive the Schedule 3 criteria.[1]

   [1]      Court Book (‘CB’), pp 158 to 163.

7. After the matter had been remitted to the delegate there was further refusal to grant the visa because the delegate did not believe there was sufficient evidence demonstrating that the applicant was, in fact, the spouse of the sponsor.  That led the applicant to apply once again to the Tribunal and a finding by the Tribunal that it should affirm the decision of the delegate not to grant the visa.  It is that decision which is the subject of these proceedings.  The date of that decision was 27 January 2017.

8. In support of his application, the applicant relies on the materials in the Court Book and his affidavit dated 9 February 2017 which, in large part, repeats the matters referred to in his grant of application.  It also annexes a copy of the decision relating to these proceedings and the earlier decision dated 14 September 2015, which related to the successful proceedings before the Tribunal, which are not the subject of these proceedings. 

9. The ground of application is extremely lengthy and raises matters that, properly understood, are in the nature of submissions. I accept the submission of the first respondent that that ground appears to raise two distinct issues. Firstly, that there was an error on the part of the Tribunal in failing to grant an adjournment to the applicant in order for him to have an opportunity to reconcile and reunite with his wife, the sponsor. Secondly, that the Tribunal made an error of law in reaching the conclusion that it was satisfied that the applicant and his sponsor were not spouses for the purposes of s.5F of the Act at the time of the decision. To the extent that the ground of application seeks to challenge the decision made by the delegate of the Minister, dated 15 December 2015, I am not able to hear that challenge as this Court does not have jurisdiction to review a primary decision.

Legislative Scheme

1. The visa sought by the applicant is a prescribed class of visa for the purposes of r.2.01(1) and Schedule 1 of the Act. Part 801 of Schedule 2 to the Act prescribes the criteria for a residence partner visa. Clause 801.22 sets out the primary criteria that must be satisfied at the time of the decision. Pursuant to subcl.(2) of that clause, the criteria includes that the applicant must be the holder of a temporary partner visa. The applicant must continue to be sponsored by the sponsoring partner, and the applicant must be the spouse of the sponsoring partner, and at least two years must have passed since the application was made.

2. With respect to the criterion that the visa applicant must be the “spouse” of the sponsor, that term is defined in s.5F of the Act as follows:

   “(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.”

3. In order to determine whether or not the applicant is the spouse of the sponsor in light of this definition it is necessary to consider r.1.15A of the Regulations:

   “(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (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 any sharing of 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.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”

4. The first respondent referred me to the authority of He v Minister for Immigration and Border Protection.[2] That decision makes clear that not only the principle matters set out in paragraphs (a) to (d) of r.1.15A(3) must be considered, but also the specific matters indicated with roman numerals that are relevant to the principle matters. The requirement that the Tribunal must consider those circumstances means that it must make findings on each of the prescribed specific matters. As held in the case of He, in effect, the specific matters require the Tribunal to pose questions to itself in order to give proper consideration to those aspects.  The regulation:

   “… poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribe matters.  The legislative intention must be that these questions will be answered, not merely thought about.  They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship. …”[3]

   [2] [2017] FCAFC 206 at [74]-[77].

   [3] Ibid at [76].

Submissions

1. The applicant made brief oral submissions before me.  He acknowledged that when he appeared before the Tribunal he was separated from his wife, but he said that he was still in contact with her and that at that time there was more than “a bit of a chance” that they would reconcile.  He submitted that he was pretty sure at the time of the Tribunal hearing that he would be able to get back together with his wife.  In those circumstances he submitted that the Tribunal should have given him more time.  He told the Court that he had met his wife more than 10 times since separation and he was hopeful of a reconciliation.  It was clear in his mind that his wife had previously stood behind him through some difficult periods for over three and a half years, and all he was asking for from the Tribunal was about a month so that he could reconcile.

2. Once the Tribunal had made its decision, he says that he told his wife that he had not been given a chance of extra time and, in his submission, that seemed to exacerbate their difficulties and nullify any chance that they would get back together.  He felt that it was almost as though the Tribunal was deliberately creating a situation in which his wife could not cope, in order to prevent a reconciliation.  He repeated that if he had had one month, then the marriage would not ultimately have broken down.  He acknowledged that he had not reunited with his wife as at the time of the hearing before me.  He maintained that his wife was still his spouse and was at the time of the Tribunal hearing. 

3. Mr Mehmood submitted to the Court that whilst he was on a bridging visa he found that there were not a lot of jobs in the area in which he was living and that this had created stress on the relationship due to financial hardship.  That was, he said, one of the reasons for the separation from his wife. 

4. For the Minister, Ms Stanley submitted that the Tribunal had taken into account all of those matters referred to in r.1.15A(3) in terms of both the primary matters and the specific matters. Having taken all of the necessary steps to give an active mental consideration to the questions, it could not be said that the Tribunal had made an error as to whether or not the sponsor was the spouse of the applicant.

5. With respect to the refusal of the adjournment, it was submitted that s.40(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) created a very broad discretionary power as to whether or not an adjournment should be granted. It was submitted that is only in exceptional circumstances that it could be established that a refusal to grant an adjournment amounted to a jurisdictional error. It was necessary to give proper consideration to the facts and circumstances surrounding the refusal to grant an adjournment and to consider whether it was unreasonable. In that regard, Ms Stanley submitted that the Tribunal member herself raised the question of an adjournment with the applicant by way of enquiring of him whether that was necessary to enable the sponsor to become well enough to give evidence. That issue had been raised with the applicant prior to the Tribunal Hearing because the Tribunal had noted that he had not indicated his intention to call the sponsor to give evidence at the time he notified it of his potential witnesses. It was when the Tribunal made the inquiry of the applicant as to whether or not an adjournment was necessary to allow the sponsor to recover that the applicant informed the Tribunal that they had broken up. It was on that basis that it refused the adjournment because the applicant’s request for an adjournment was simply to enable him to reconcile, and this was something which the Tribunal properly regarded as being speculative. It was submitted that in the circumstances, it was open to the Tribunal to refuse the request for one month’s adjournment.

Consideration

1. The Tribunal relevantly noted the requirements of cls.820.211(2)(a) and 820.221 of Schedule 2 of the Regulations, and noted that it was necessary that at the time of the decision the applicant was the spouse of an Australian citizen. It noted the relevant definition of spouse in s.5F of the Act and the relevant aspects of that section. In particular, it noted that persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act. It noted there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart, on a permanent basis. It correctly noted that in forming an opinion as to those matters, regard had to be had to all of the circumstances of the relationship and the matters referred to in r.1.15A(3) of the Regulations. I am satisfied that the Tribunal did consider the principle matters set out in r.1.15A(3) and the specific matters relevant to the principle matters as set out in the roman numerals.

2. The relevant portion of the decision record is as follows:

   “14.On the evidence, the Tribunal accepts that the parties were married to each other in May 2014 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). The existence of the formal marriage certificate is not sufficient to meet the definition of “spouse” for the purpose of the Act.

   15.In considering this matter, the Tribunal canvassed with the applicant the factors under regulation 1.15A of the Regulations. The Tribunal focussed on the evidence at the time of decision. For present purposes, the Tribunal assumes that the spousal relationship, was satisfied at the time of the visa application.

   16.The Tribunal canvassed with the applicant whether there were any joint debts of assets.  He said there were not.  He indicated that the joint account had been closed.  They did not owe anything on behalf of each other.  Mr Mehmood does not provide his sponsor with money nor does she provide him with any.

   17.As for the household, Ms Mehmood now lives at a new address on her own.  Currently there is no joint household.  There is no evidence that either member of the couple has children or the care of children.

   18.He said that he visits his wife and they meet for coffee.  In response to a question from the Tribunal the applicant indicated that he has met with his wife about 12-14 times since they separated at the end of August.  He has visited her parents.  They do not go to places as a couple.  Friends and family are aware that they have separated.

   19.The Tribunal accepts that the parties were married in May 2014.  However, even if the Tribunal accepts that the parties have lived together up until August 2016, they are not now doing so.  Whilst the Tribunal accepts that Mr Mehmood would like to try to reconcile with Ms Mehmood, in the absence of any evidence from the sponsor, it is not satisfied of a mutual commitment of a shared life together.”

1. In the absence of any further evidence, and no evidence from the sponsor, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others.  For that reason it was not satisfied that the relationship between the parties was genuine and continuing.  It concluded that the applicant and Ms Donna Mehmood, the sponsor, did not live together and had not done so since August 2016.  It was not satisfied that they did not live separately and apart on a permanent basis, in particular having regard to the closure of a joint bank account which they had previously held.  For that reason, it was not satisfied that a spousal relationship existed between the parties at the time of the decision, and accordingly it concluded the applicant did not continue to meet the requirements of subcl.820.211(2)(a) at the time of the decision.  The Tribunal also concluded, and I do not understand this to have been challenged, that the applicant did not meet the requirements of cl.820.221(2) or (3) which provide alternative pathways for the criterion to be satisfied, namely the death of a sponsor or family violence having been suffered by the applicant or a dependent child. 

2. I am satisfied that the Tribunal considered all relevant matters relating to the question of whether or not the applicant and his sponsor could be regarded as spouses.  I am not able to discern any error in the approach taken by the Tribunal and for that reason, I dismiss that aspect of the applicant’s claim.

3. With respect to the application for an adjournment, it was sought not in circumstances where the applicant was submitting that the sponsor was prepared to give evidence, and where it was his intention to call the sponsor to give evidence.  Rather, it was refused in circumstances where the applicant had acknowledged that he had been separated from his wife but that he was seeking time to reconcile with her.  I am satisfied that the conclusion reached by the Tribunal that the application for an adjournment was dependent upon matters that were speculative, and that there was no evidence before it to suggest that Ms Mehmood would be prepared to give evidence, was a conclusion that was open to it.[4]  I am not satisfied that it was unreasonable in the circumstances for the Tribunal to refuse to grant the adjournment sought, and accordingly I dismiss that aspect of the applicant’s application for review.

   [4] CB p 281 at [10].

4. I make the orders to be found at the beginning of these reasons. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 4 June 2018