Migdadi v Minister for Immigration - [2016] FCCA 2695

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIGDADI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2695

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Migration Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.5F(1), 5F(2), 5F(3), 359AA, 359AA(1)(b), 359A, 359A(1), 359A(3), 360(1), 424A, 424A(1)
Migration Regulations 1994 (Cth), reg.1.15A, 1.15A (2), 1.15A (3)
Migration Regulations 1994 (Cth), Schedule 2, cl.820.211(2), 820.211(2)(a)(i), 820.211(3)

Cases cited:

Guven v Minister for Immigration & Anor [2006] FMCA 311
SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

HAMZA ISMAIL MOHAMMAD MIGDADI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1108 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

21 September 2016

Delivered at:

Sydney

Delivered on:

19 October 2016

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner of

Turner Coulson Immigration Lawyers

Solicitor for the First Respondent:

Ms S Sangha of

Mills Oakley Lawyers

ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1108 of 2015

HAMZA ISMAIL MOHAMMAD MIGDADI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first respondent (Minister) applies for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the amended application for judicial review filed in these proceedings be dismissed.

Background

The applicant is a national of Jordan. On 28 November 2011 he applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).[1] The applicant did so on the basis that he was married to the sponsor.
[1] CB32ff
To have been entitled to the grant of a Partner visa, the applicant, at the time of application, had to satisfy, among other things, cl.820.211(2)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provided that an applicant for a Partner visa must be “the spouse or de facto partner of a person who” is “an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
Sub section 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2), the persons are in a married relationship. Under s.5F(2), 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2695
Decision Date: 19 October 2016

CaseChat Overview and Summary

In *Migdadi v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant contended that the AAT failed to comply with section 359A of the *Migration Act 1958* (Cth) by providing inadequate particulars of an inconsistency it identified between the applicant's evidence and that of his brother. This inconsistency related to the events of the applicant's wedding night, which the AAT considered relevant to its assessment of the genuineness of the applicant's spousal relationship.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had sufficiently informed the applicant of the specific nature of the evidentiary conflict it perceived, thereby affording him a proper opportunity to respond. The applicant argued that the AAT's statement of the inconsistency was vague and did not clearly articulate the differing accounts of the wedding night, making it difficult for him to address the discrepancy effectively.

Judge Manousaridis reasoned that section 359A requires the Tribunal to provide clear and specific particulars of any inconsistency it relies upon to make an adverse finding. The Tribunal's statement that the applicant's brother stated he was at home with his family, while the applicant stated his brother left the family home to leave him alone on his wedding night, was found to be a sufficient articulation of the conflicting accounts. The judge noted that the applicant's subsequent response, which clarified his brother's movements and the location of his in-laws' house, demonstrated that he understood the nature of the inconsistency and was able to respond to it. Therefore, the court found that the AAT had complied with its obligations under section 359A.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant submits the Tribunal did not comply with s.359A of the Act because the Tribunal gave incorrect particulars of what it considered to be the inconsistency between the applicant’s evidence and the brother’s inconsistent evidence (brother’s inconsistent evidence). To understand the applicant’s submission, it is necessary to refer to three passages from the transcript of the hearing before the Tribunal. The first is where the Tribunal purports to give to the applicant particulars of the brother’s inconsistent evidence:[55][55] Affidavit of M E Corkhill, annexure “A”, page 48Member:There is one issue of inconsistency that I would like to put to you formally and that is in relation to your brother’s evidence about what happened on the night that you were married.So I am just going to do that now and I just ask that you wait until I finish.So your brother said to me that on the night that you were married, he admits that he was confused at the beginning, but basically on the night that you were married he was at home with his family, you and your wife.And you told me that he left the family home with his wife and children to leave you alone on your wedding night.Now just wait.So that information is relevant because it has been inconsistent – evidence about what happened on the night of your wedding.This would lead the Tribunal to conclude that either your evidence or your brother’s evidence about that event was not truthful and is not accepted as evidence.This might lead the Tribunal to doubt that you and your wife were in a genuine and continuing spousal relationship at the time of the application.This in turn would be the reason – or part of the reason for [unintelligible] decision under review.I am also required to formally give you additional time to respond to that inconsistency. You can respond now if you like, but you can also request additional time to put something in writing.Applicant:… my brother, but I am the one married. I am – of course I am the main person here. It is my own life. And I know better.Of course, like the other witnesses, for example, he can say things but of course he remembers things – I remember things better than he would.… the house of his in-laws. My brother’s-in-laws. It is like 20 or 30 metres away from his house so every now and then, you know, they pay them a visit. I just check about the [unintelligible]Yes, yes, because you know my – yes the house number is 74 my brother’s and then around 64. Yeah 64. So everything that they you know, with each other, … [unintelligible].So when we woke up in the morning, me and my wife, you know my brother was at home. The second passage from the transcript of the hearing before the Tribunal is that which records the applicant’s evidence about where he spent the night of the wedding:[56]Member:Where did you stay the night that you were married?Applicant:That day you mean?Member:That night when you were married?Applicant:After this, after the contract of marriage, my brother gave us a lift – we went back and we had lunch – and then I took his car and we went out that night. And then he told me you know that they went out that they weren’t at the house, that they wanted to – I am not sure – spend the night overnight or just spend that night – [would you like me to check that].Member:Mm.Applicant:Yes, they … overnight, yes so they not home. And then like you know it was rough circumstances because her relationship with her parents – financially the circumstances weren’t good. I thought I was [unintelligible].[56] Affidavit of M E Corkhill, annexure “A”, page 16

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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