Metwalli v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 677

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Metwalli v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 677   

File number(s): SYG 90 of 2021
Judgment of: JUDGE ZIPSER
Date of judgment: 19 May 2025 
Catchwords:  MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal failed to consider or have regard to text messages between applicant and sponsor in considering degree of companionship and emotional support they drew from each other – no jurisdictional error established – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 5F, 65, 359A, 368, 476

Migration Regulations 1994 (Cth) reg 1.15A, Sch 2 cl 820.211(2)

Cases cited:

Burgess v Minister for Immigration and Border Protection [2018] FCA 69; 259 FCR 197

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594

Plaintiff M1/2001 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582

Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [61]

SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; 125 ALD 38

Vo v Minister for Home Affairs [2019] FCAFC 108; 269 FCR 566

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757

Division: Division 2 General Federal Law
Number of paragraphs: 52
Date of hearing: 29 April 2025
Place: Parramatta
Counsel for the Applicant: Mr L Karp
Solicitor for the Applicant: Immi House Legal
Counsel for the Respondents: Mr G Johnson
Solicitor for the Respondents: Mills Oakley

ORDERS

SYG 90 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MOHAMED METWALLI

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

19 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.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 ZIPSER

INTRODUCTION

  1. On 14 January 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 December 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (class UK) (subclass 820) visa under s 65 of the Act.

  2. For the reasons that follow, the application…

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AGLC
Metwalli v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 677
Case
[2025] FedCFamC2G 677
Decision Date

CaseChat Overview and Summary

In Metwalli v Minister for Immigration and Multicultural Affairs, the applicant, an Egyptian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the delegate's decision to refuse his application for a partner visa. The applicant argued that the AAT failed to consider or appropriately weigh the text messages exchanged between him and his Australian citizen sponsor, which he contended demonstrated the degree of companionship and emotional support they shared. The primary legal issue was whether the AAT made a jurisdictional error by not considering the text messages in determining if the applicant satisfied the requirements for a partner visa under the Migration Act 1958 (Cth).

The court examined the AAT's reasoning and its consideration of the text messages. While the AAT was aware of the text messages, it did not expressly reference them when concluding that the applicant did not provide sufficient companionship and emotional support to the sponsor. The applicant argued that the AAT misunderstood or overlooked the significance of the text messages, which included expressions of love and affection. However, the court found that the AAT's failure to explicitly reference the text messages did not amount to a jurisdictional error. The AAT had considered the overall nature of the relationship, including the financial aspects, the household, social aspects, and the commitment between the parties, and determined that the relationship did not meet the required standard for a partner visa.

The court held that the AAT did not err in its consideration of the relationship's attributes, including the degree of companionship and emotional support. The text messages, while demonstrating some affection, did not alter the AAT's overall findings about the relationship's nature and the lack of mutual commitment and support. Therefore, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Clause 820.211(2) of Schedule 2 to the Regulations relevantly provided at the time of the Tribunal’s decision: An applicant meets the requirements of this subclause if:(a) the applicant is the spouse or de facto partner of a person who:(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(ii) is not prohibited by subclause (2B) from being a sponsoring partner.…(d) in the case of an applicant who is not the holder of a substantive visa--either:(i) the applicant:(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and(B) satisfies Schedule 3 criterion 3002; or(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.FACTUAL BACKGROUND The applicant, a citizen of Egypt, arrived in Australia in June 2014 on a visitor visa. In June 2015, the last substantive visa held by the applicant ceased. On 16 August 2016, the applicant applied for a subclass 820 partner visa on the basis of a spousal relationship with an Australian citizen (Sponsor). The applicant and Sponsor first met online in June 2016, married in an Islamic ceremony on 9 July 2016, and married in a civil ceremony in early August 2016. On 1 December 2016, a delegate of the first respondent refused to grant the visa on the basis that:(a)the applicant did not satisfy one of the Schedule 3 criteria in cl 820.211(2)(d)(ii) of Schedule 2; and (b)there were no compelling reasons for not applying the Schedule 3 criteria. On 20 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision. On 18 June 2018, the Tribunal (Earlier Tribunal) affirmed the delegate’s decision. Following an application to the Federal Circuit Court for judicial review of the Earlier Tribunal’s decision, on 29 January 2019 the Federal Circuit Court by consent issued a writ quashing the Earlier Tribunal decision on the basis that the Earlier Tribunal did not comply with its obligation under s 359A of the Act to invite the applicant to comment on information in an email sent to the Department on 30 January 2017. The Federal Circuit Court remitted the matter to the Tribunal for redetermination according to law. On 10 September 2020, the Tribunal invited the applicant to attend a hearing on 28 September 2020. On 28 September 2020, the applicant attended a hearing before the Tribunal, assisted by a registered migration agent. Two witnesses also gave evidence. On 10 December 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a partner visa.TRIBUNAL’S DECISION The Tribunal at [9] stated that the issue before it was whether the applicant was the spouse of the Sponsor within the meaning of cl 820.211(2)(a) of Schedule 2 at the time of application for the partner visa on 16 August 2016.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 10 December 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a partner visa.TRIBUNAL’S DECISION The Tribunal at [9] stated that the issue before it was whether the applicant was the spouse of the Sponsor within the meaning of cl 820.211(2)(a) of Schedule 2 at the time of application for the partner visa on 16 August 2016. As was evident from the evidence before the Tribunal, the relationship between the applicant and Sponsor “was tempestuous” (Tribunal at [36]) and the relationship ended by January 2017 with “the parties [then] mak[ing] serious allegations against and about each other” (Tribunal at [73]). The Tribunal at [19]-[20] noted that, in determining whether the applicant was the spouse of the Sponsor, pursuant to s 5F of the Act and reg 1.15A of the Regulations, it must consider:(a)the financial aspects of the relationship;(b)the nature of the household;(c)the social aspects of the relationship; and(d)the nature of the persons’ commitment to each other. The Tribunal at [21]-[35] considered the financial aspects of the relationship. The Tribunal at [21] noted the applicant’s claim “that the sponsor married him for his money”. The Tribunal at [23] referred to the applicant’s evidence that “the sponsor was financially abusive from the beginning of the parties’ relationship”. The Tribunal at [29] referred to the evidence of one of the witnesses “that the applicant was abused and manipulated by the sponsor” and “she questioned the sponsor’s intentions related to the parties’ marriage”. The Tribunal at [33] found that “the applicant provided inconsistent information about the parties’ financial matters”. The Tribunal at [34] found that “the parties provided inconsistent information about the financial aspects of their relationship”. The Tribunal at [35] accepted “the applicant’s evidence that he paid for everything and there was no basis of sharing of day to day household expenses”. The Tribunal at [36]-[44] considered the nature of the household. The Tribunal at [36] stated that “the parties’ household was tempestuous”. The Tribunal at [39] noted the Sponsor’s evidence that “the parties never formally lived together and spent very little time together throughout their relationship”. The Tribunal at [44] found that “the parties provided inconsistent information about their household”. The Tribunal at [44] “accept[ed] that the parties lived together for a time” but did “not accept that the parties lived together as the applicant claimed or that they shared the responsibility for housework”. The Tribunal at [45]-[54] considered the social aspects of the relationship. The Tribunal at [54] “accept[ed] that the parties represented themselves to other people as being married to each other and that they were seen as a married couple”. The Tribunal at [55]-[73] considered the nature of the parties’ commitment to each other. The Tribunal at [56] and [58] noted:(a)the applicant’s claims against the Sponsor that the Sponsor psychologically abused the applicant, the Sponsor “used the visa application to control him by constantly threatening to cancel the visa application”, and the Sponsor “never showed the applicant her commitment to the marriage”; and(b)the Sponsor’s claim against the applicant “that he married her for a visa outcome”.

Ratio Decidendi

Legal Principle Established

Mr Karp and Mr Johnson made oral submissions which supplemented their written submissions. The submissions are addressed below.CONSIDERATION Among the large amount of evidence before the Tribunal was what appears to be a complete copy of the exchange of text messages between the applicant and Sponsor from the time they commenced communicating with each other in June 2016 to December 2016: see CB 1069-1177. In many of the messages, the Sponsor communicated “expressions of love and affection” (AS [30]) to the applicant. For example: (a)On 1 July 2016, which may have been shortly prior to the first time the parties met, they exchanged text messages saying “I love you”. (CB 1069)(b)On 4 July 2016, which was shortly after the parties first met, they exchanged text messages, including “I love you”, “Miss you Habibi” and “I miss and love Lara”. (CB 1076-1077)(c)On 19 and 20 July 2016, which was between the date of the parties’ Islamic marriage (on 9 July) and civil marriage (in early August), the parties exchanged text messages, including the Sponsor sending the applicant a YouTube link to a song, the applicant replying “I still love your heart more Habibi” and “I miss your lips”, and the Sponsor replying “I miss yours too. I miss everything about you.” (CB 1096)(d)On 22 August 2016 (which was after the applicant and Sponsor married), the Sponsor wrote: “Salam my sun and stars I can’t express in words how much I love you and how grateful Allah brought you too me”. (CB 1116)(e)On 8 September 2016, the parties exchanged text messages, including the applicant writing “Habibi I love you and miss you a lot. Wish now be between you arms” and the Sponsor replying “I wish I was in your arms too”. (CB 1123) It is contended in ground 1 that the Tribunal “failed to lawfully consider” the text messages to the extent they were “relevant to the question of whether the applicant’s former marriage satisfied the requirements of paragraphs 5F(2)(b), (c) and (d) of the Migration Act”. The applicant’s written submission refines the contention in two ways as follows. First, it is contended that the text messages were particularly relevant to the matter in reg 1.15A(3)(d)(iii) of the Regulations, being “the degree of companionship and emotional support that the persons draw from each other”: see for example AS [25]-[26]. Second, Mr Karp accepts that the Tribunal “was clearly aware of” the text messages: AS [30]. The complaint is that, although the Tribunal was aware of the text messages, the Tribunal “neither understood nor appreciated the content of those text messages or their relevance to the applicant’s case” (AS [31]) or the Tribunal “did not recognise the significance of these text messages” (AS [30]). Mr Karp’s complaint can be summarised as follows:(a)The text messages contain “expressions of love and affection” (AS [30]) by the Sponsor and applicant to each other, or representations indicating “considerable mutual affection” (AS [27]).(b)The Tribunal did not expressly refer to these particular text messages in its statement of reasons in the course of making a finding at [73] that, even if the applicant provided some companionship and emotional support to the Sponsor, “there is no evidence that this was reciprocated by the sponsor”.(c)Therefore, the Tribunal either overlooked or misunderstood the text messages in considering reg 1.15A(3)(d)(iii).