Merhy v Minister for Home Affairs

[2019] FCCA 1518

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERHY v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1518

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Partner (Residence) (Class BS) visa – whether the tribunal misconstrued the requirements of subclause 801.221(6)(b) when read with subclause 801.221(2) in Schedule 2 to the Migration Regulations 1994 – whether the Tribunal failed to properly consider the evidence before it – whether the Tribunal failed to comply with its obligations under s.360 of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 360

Migration Regulations 1994 (Cth), cl.801.221 of Schedule 2

Cases cited:

Kaur v the Minister for Immigration and Border Protection [2014] FCA 1251

Applicant: OMAR MERHY

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1798 of 2018

Judgment of: Judge Humphreys

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Parramatta

Delivered on: 4 June 2019

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Michael Vassili Barristers and Solicitors

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondents costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1798 of 2018

OMAR MERHY

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. On 18 July 2014, the applicant applied for a Partner (Residence) (Class BS) visa based on his spousal relationship with Ms Chamma (“the sponsor”). On 14 August 2015, a delegate for the Minister for Immigration and Border Protection (“the Minister”) refused the application based on the applicant not satisfying cl 801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant was the spouse of the sponsor. The applicant appealed that decision to the Administrative Appeals Tribunal (“the Tribunal”).

2. On 24 May 2018, the Tribunal affirmed the delegate’s decision. The decision was affirmed on the basis that the applicant was never in a spousal relationship for the purposes of the Regulations with the sponsor. The applicant now seeks judicial review of the Tribunal decision.

Administrative Appeals Tribunal Decision

1. At the outset, the Court identified that the issue to be determined was whether the applicant was ever the spouse of the sponsor, as defined in s 5F of the Migration Act 1958 (Cth.) (“the Act”). Section 5F of the Act sets out a number of cumulative tests that are required to be satisfied to meet the definition of a spouse for the purposes of the Act. Being married to each other under a legally valid ceremony is but one of those considerations. The history of the relationship between the applicant and the sponsor is set out in paragraphs 10 to 15 of the Tribunal’s decision.

   ·    They were engaged in Lebanon in April 2013. The applicant first came to Australia in December 2013. The applicant then left and returned in mid-2014 and on 25 September 2014 was granted a Subclass 820 Temporary Partner visa following his marriage in Australia, in an Islamic ceremony to the sponsor on 22 June 2014.

   ·    During the applicant’s time in Australia, he had been living at the sponsor’s family home with her parents and her brother.

   ·    On 28 May 2015, the sponsor advised the Department that she had withdrawn the sponsorship as her relationship with the applicant had broken down. On 30 May 2015, a planned wedding reception did not proceed. On 21 February 2017, the parties became legally divorced under Australian law.

2. Allegations of family violence have been made against the applicant.  The relevance of these allegations will become apparent later in this judgment. The evidence and findings of the Tribunal concerning the relationship between the applicant and the sponsor is set out in paragraphs 21 forward of the Tribunal’s decision.

Considerations

1. I consider the following to be most relevant. The parties’ marriage of 22 June 2014, was not consummated. It was agreed that this would be delayed until after the wedding reception. Whilst living at the sponsor’s home, the applicant shared a bedroom with the sponsor’s brother. The sponsor had a separate bedroom. The applicant left the sponsor’s home briefly in September 2014, but moved back in after being invited to, as he was sleeping in his car. In December 2014, the applicant moved to the accommodation in Mount Vernon.

2. A lease was taken out by the applicant in a premises at Glenfield in early May 2014, but the parties never established a household. The sponsor considered herself finally separated from the applicant on 21 May 2015. On or about 11 June 2015, the sponsor sought to have her name removed from the lease on the premises at Glenfield. There is evidence that the purchase of a wedding ring was an issue of significant dispute between the parties, with the sponsor’s parents, particularly her mother, demanding a more expensive ring than the applicant had purchased on 19 May 2015.

3. The cancellation of the wedding reception ended the relationship. At paragraph 43 of the Tribunal’s decision, the Tribunal found the parties were not committed to each other. There were tensions with the sponsor’s parents. The applicant alleges he was threatened. The sponsor makes similar allegations against the applicant. At paragraph 45 of the Tribunal’s decision, the Tribunal found that the applicant and the sponsor shared social events but did not accept this was evidence of a genuine and continuing spousal relationship.

4. At paragraph 47 of the Tribunal’s decision, the Tribunal concluded that it was not satisfied the parties had ever, and I emphasise the word “ever”, shared a spousal relationship. At paragraph 48 of the Tribunal’s decision, the Tribunal found they had lived separately in the same household with the sponsor’s family but not in a spousal relationship. At paragraph 48 of the Tribunal’s decision, the Tribunal acknowledged the applicant’s evidence that the sponsor’s family continually threatened to cancel his visa and demanded he finance various purchases.

5. At paragraph 49 of the Tribunal’s decision, the Tribunal concludes that neither the applicant nor the sponsor considered themselves to be spousal partners. At paragraph 51 of the Tribunal’s decision, the Tribunal concluded that as a spousal relationship never existed between the parties. It was not required to consider the provisions of cl.801.221(2) of Schedule 2 to the Regulations which concerns a beneficial regulation, where a relationship ceases due to domestic violence. It found that in terms of cl.801.221(2)(c) of Schedule 2 to the Regulations, the applicant had never been the spousal de facto partner of the sponsor.

6. At paragraph 58 of the Tribunal’s decision, the Tribunal stated that as it had found that no spousal relationship existed, it did not need to consider the claims of family violence under cl.801.221(6)(c)(i)(A) of Schedule 2 to the Regulations. I simply note here, that cl.801.22 (6)(b) of Schedule 2 to the Regulations describes that the ‘applicant would meet the requirements of Subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased’.

Grounds of Appeal

1. These are set out in the applicant’s amended application before the Court. Leave was granted for this amended application to be considered. I note that there were amendments and there are only three Grounds before the Court. They are set out as follows:

   1. The second respondent (the Tribunal) misconstrued the requirements of subclause 801.221(6)(b) when read with subclause 801.221(2) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   Particulars

   a)     Subclause 801.221(6)(b) relevantly required the Tribunal to consider whether the applicant would – at the time of the decision – meet the requirements of subclause 801.221(2) of the regulations “except that the relationship between the applicant and the sponsoring partner has ceased.

   b) Properly construed, the only element of subclause 801.221(2) of the Regulations which required consideration by the Tribunal was subclause 801.221(2)(a); namely, whether – at the time of decision – the applicant was the holder of a Subclass 820 visa.

   c)   There was no requirement that the Tribunal consider the other elements of subclause 801.221(2); namely:

   d)     Subclause 801.221(2)(b), whether the applicant continued to be sponsored by his sponsoring partner, since this element was subsumed by the cessation of the relationship;

   e)   Subclause 801.221(2)(c), whether the applicant was the spouse of the sponsoring partner, since this element was also subsumed by the cessation of the relationship;

   f)   Subclause 801.221(2)(d), whether at least 2 years had passed since the application was made, since this element was relevantly subject to subclause 801.221(7), which relevantly permitted the Tribunal – less than 2 years after the application had been made – to approve the grant of a Subclass 801 visa to an applicant who met the requirements of subclause 801.221(6), including the requirement that he had suffered family violence committed by the sponsoring partner under subclause 801.221(6)(c)(i)(A).

   g) Having found – a [11] of the decision – that at the time of the decision the applicant held a Subclass 820 visa and therefore satisfied subclause 801.221(2)(a) as well as subclause 801.221(6)(a), the remaining ask of the Tribunal was to determine whether the applicant had suffered family violence within the meaning of subclause 801.221(6)(c)(i)(A) and Part 1 Division 1.5 of the Regulations.

   h)     Instead, the Tribunal undertook an unnecessary consideration of whether the applicant had been the spouse of his sponsor with reference to the period of time after the cessation of their relationship on or about 25 May 2015.

   i) In undertaking a consideration of whether the applicant had been the spouse of his sponsor with reference to the period of time after the cessation of their relationship on or about 25 May 2015, the Tribunal was diverted from and failed to undertake its remaining task, which was to determine whether the applicant had suffered family violence within the meaning of subclause 801.221(6)(c)(i)(A) and Part 1 Division 1.5 of the Regulations.

   2.   When making its finding – at [51] of the decision – that the applicant had never been in a spousal relationship with his sponsor, the Tribunal failed to consider the evidence and submissions made b the applicant and his sponsor that, immediately after the registration of their marriage on 22 June 2014 until the end of their relationship on or about 25 May 2015, the parties had been in a genuine spousal relationship within the meaning of the Act, but that this relationship was limited by cultural restrictions – which did not negate the genuineness of the relationship – including that they were unable to sleep together or have a sexual relationship until they had undergone a formal marriage celebration.

   3.   The Tribunal failed to comply with its obligation under s 360 of the Act to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   Particulars

   The Tribunal failed to notify the applicant that at issue in the application was whether the applicant and his sponsoring spouse had been in a genuine spousal relationship as at the time of the application for the visa, on 18 July 2014.

Ground 1

1. It is necessary to consider in relation to Ground 1, the wording of cl.801.221(2) and cl.801.221(6) of Schedule 2 to the Regulations.

2. The Tribunal found it was unnecessary to consider cl.801.221(6)(b) of Schedule 2 to the Regulations, as it found that the applicant and the sponsor were never in a spousal or de facto relationship at any time, that is, they never had a genuine relationship in terms of being a spousal or de facto partners. In my view, cl.801.221(6) of Schedule 2 to the Regulations, presupposes that there was a genuine relationship in the first place in order for the benefit that flows from it, where there are allegations of domestic violence to allow a further consideration of whether or not a Subclass 820 visa should be granted.

3. At the time of the decision, the applicant was no longer sponsored. There was no relevant relationship to have ceased. For a relationship to cease, in my view, it must exist at some point in time. To meet the requirements of cl.801.221(6) of Schedule 2 to the Regulations, each of the requirements must be met, not just some of them. It was put to the Court that as the applicant had been granted a Subclass 820 Temporary Spousal visa, this was determinative that a spousal relationship existed. As a result, the applicant was entitled to the beneficial consideration of cl.801.221(6) of Schedule 2 to the Regulations.

4. I do not accept this submission. The requirements in cl.801.221(2) of Schedule 2 to the Regulations are clearly cumulative, particularly at subparagraph (c), which outlines that “the applicant is the spouse or de facto partner of the sponsoring partner”. Subclause 801.221(6) of Schedule 2 to the Regulations, states “the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased”. In my view, the Tribunal was entitled to consider, that notwithstanding that the applicant held a Subclass 801 Partner visa and then a Subclass 820 Temporary Spousal visa under cl.801.221(2A) and then cl.801.221(2)(c) of Schedule 2 to the Regulations, whether or not the applicant was indeed the spouse of the sponsoring partner.

5. In coming to this conclusion I have considered the reasoning of Murphy J in Kaur v the Minister for Immigration and Border Protection [2014] FCA 1251 (“Kaur”). While Kaur deals with a grant of a Partner (Temporary) (Class UK) Subclass 820 visa, in my view, the reasoning is analogous to the current circumstances given the similarity between the requirements of Subclass 801 Partner visa and Subclass 820 Temporary Spousal visa.

6. At paragraphs [40] and forwards of that decision, Murphy J considers the requirements at cl.820.211 of the Regulations, and after setting out the requirements, Murphy J says:

   Clause 820.221(3) refers back to cl.820.211 and indicates that it must be satisfied that at the time the visa application is lodged’. Although cl.820.211(3) sets a requirement to continue to meet the requirements of cl.820.211(2),(5) or (6), in the present case only  cl.820.211(2) is relevant.

7. The Tribunal was not satisfied that the applicant and the sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence. In paragraph [44] of Kaur it goes on to say:

   In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established.

8. As the Tribunal found the applicant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence. Whilst that particular case is not directly on point, in my view, the reasoning is analogous. The Tribunal first needed to establish that there was a spousal relationship in order for it to consider the beneficial application of cl.801.221(6) of Schedule 2 to the Regulations.

9. I do not consider that the granting of a Subclass 820 Temporary Spousal visa under cl.801.221(6) of Schedule 2 to the Regulations was determinative of the issue ad infinitum. The Court was entitled to look at the whole of the evidence before it in order to determine whether or not the relevant requirements under cl.801.221 of Schedule 2 to the Regulations were met.

Ground Two

1. This ground alleges jurisdictional error by failing to take into account cultural circumstances when finding that there had never been a genuine spousal relationship. In my view, this must fail on the facts. There are clear examples of discussion of cultural issues by the Tribunal. For example, at paragraph 29 of the Tribunal’s decision the following is said:

   He told this Tribunal that on September 2014, he was encouraged by the sponsor’s parents to build a granny flat, on the property, with a view to the parties living there after their wedding reception. He started that in November 2014, the sponsor’s father told him not to continue with the granny flat. After the applicant moved from the sponsor’s home, the sponsor continued to live with her parents. The applicant previously stated this was “because in our culture, a married couple are not permitted to commence cohabitation in their own house until the wedding reception has taken place.” While he told this Tribunal that the parties didn’t live together prior to their wedding reception out of respect for the sponsor’s parents.

2. In my view, the reality is the Tribunal did not accept the submission that the applicant was in a genuine spousal relationship. There were clear consideration of cultural differences. Regulation 1.15A, which deals with the considerations that must be looked at in order to establish a spousal relationship, is not an exhaustive list, but it provides a comprehensive list of matters that should be considered. These matters were carefully considered, weighed up and evaluated by the Tribunal in coming to its decision that no genuine spousal relationship ever existed.

3. I am satisfied it was open to the Tribunal to find that, based on all of its considerations and findings, even taking into account cultural differences, a genuine spousal relationship did not exist. Ground 2 must fail.

Ground Three

1. This ground alleges that the Tribunal failed to inform the applicant that an issue in the review was whether he and the sponsor were in a genuine relationship at the time of his visa application in 18 July 2014.

2. It is submitted to the Tribunal that the Tribunal failed to comply with

   
   

   s 36 of the Act and thus committed jurisdictional error. Section 360 of the Act sets out that the Tribunal should invite the applicant to appear to give evidence and present arguments arising in relation to the issues that might be before the Tribunal. There are two issues that I find with that particular submission. Firstly, at page 444 of the Court book, there is a copy of the procedural fairness letter which was sent out to the applicant. At the second paragraph the following appears:

   One of the issues to be considered is in assessing whether you meet the criteria for the grant of a Partner (Residence) (Class BS) visa is whether you satisfy cl.801.221(6)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations). To meet this criteria the Tribunal must be satisfied that your relationship with the sponsor ‘has ceased’.

   I emphasise here, and your spouse relationship must therefore have existed before it can be determined that the relationship “has ceased”.

3. Further on in the hearing, the Tribunal member said the following (see transcript of hearing annexed to the affidavit of Danny Mikhail):

   The issue I must consider is, whether you were in a genuine and continuing spousal relationship with your sponsor and that relationship would have continued, except that family violence has taken place and that family violence has been perpetrated by your sponsor. To determine whether you were in a genuine spousal relationship, the law says I must consider whether you both had a mutual commitment to a shared life, as husband and wife to the exclusion of all others.

   I note there, that of course, the applicant was represented at his hearing before the Tribunal.

1. I am reasonably satisfied that the applicant was clearly on notice from the procedural fairness letter and the opening statement by the learned member of the Tribunal that an issue was whether or not they were ever in a genuine and continuing spousal relationship. Ground 3 must fail.

Conclusion

1. Accordingly, none of the Grounds of Appeal have been made out and the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  14 August 2019