Migdadi v Minister for Immigration and Border Protection
[2017] FCA 928
•16 August 2017
FEDERAL COURT OF AUSTRALIA
Migdadi v Minister for Immigration and Border Protection [2017] FCA 928
Appeal from: Application for extension of time and leave to appeal: Migdadi v Minister for Immigration and Border Protection & Anor [2016] FCCA 2695 File number: NSD 1924 of 2016 Judge: BURLEY J Date of judgment: 16 August 2017 Catchwords: MIGRATION – application for Partner (Temporary) (Class UK) visa – application dismissed by primary judge pursuant to r 44.12 of Federal Circuit Court Rules 2001 (Cth) – application for extension of time and leave to appeal – whether draft grounds of appeal are reasonably arguable – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 5F, 359A
Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) reg 1.15A
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123
Date of hearing: 2 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: Ms B Rayment of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1924 of 2016 BETWEEN: HAMZA ISMAIL MOHAMMAD MIGDADI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
16 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for an extension of time to seek leave to appeal is allowed.
2.The application for leave to appeal be refused.
3.The Applicant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. BACKGROUND
The applicant, Mr Hamza Migdadi, is a national of Jordan. On 28 November 2011 he applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (Visa) on the basis that he was married to a person who is an Australian citizen (sponsor). In February 2014, a delegate (delegate) of the Minister for Immigration and Border Protection (Minister) refused the application and on 24 March 2015 the Migration Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) affirmed the decision of the delegate. Mr Migdadi subsequently applied for judicial review by the Federal Circuit Court of Australia (FCCA) of the decision of the Tribunal. The Minister then brought an application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) seeking an order that the application for judicial review be dismissed on the basis that it raises no arguable case for the relief sought. On 21 September 2016, a judge of the FCCA found in favour of the Minister and dismissed Mr Migdadi’s application.
A decision made pursuant to FCCR r 44.12(1)(a) is interlocutory, and leave to appeal from it is necessary. In the present application, Mr Migdadi seeks leave to appeal. He relies upon the following proposed grounds of appeal:
1.His Honour’s judgement failed to consider the spousal relationship as genuine and that it was [not] open to the Tribunal to conclude that the applicant and the sponsor were not in a genuine marital relationship.
2.His Honour as well as the Administrative Appeals Tribunal failed to comply with the definition of spouse and their opinion was based on assumption and inconsistency which should not be considered as leading to a refusal.
3.The Tribunal as well as [h]is Honour concentrated on minor inconsistenc[ies] yet failed to take into account that the other positive aspects of the mutual commitment which should lead to accept that the relationship between partners is genuine and continuing.
The Minister opposes the grant of leave primarily on the bases that the grounds now advanced were not advanced before the FCCA, that the grounds are not reasonably arguable and that the application, having been brought two days outside the prescribed period of 14 days from the date of the decision below, was brought out of time and ought to be refused.
For the reasons set out below, I grant the extension of time to seek leave to appeal but I refuse the application for leave to appeal.
2. THE VISA APPLICATION AND DECISION OF THE DELEGATE
Mr Migdadi first arrived in Australia on a visitor visa on 2 January 2009 and departed on 31 March 2009. He returned on 31 January 2010, again on a visitor visa. On 30 April 2010 he lodged an application for a protection visa, which was refused on 7 February 2011. The current Visa application was lodged on 28 November 2011.
The application was lodged on the basis that Mr Migdadi was the spouse of the sponsor. On 24 January 2013 his migration agent advised that the relationship between Mr Migdadi and the sponsor had broken down, and claimed that Mr Migdadi had suffered family violence at the hands of the sponsor.
The delegate accepted that a marriage certificate issued by the New South Wales Registry of Births, Deaths and Marriages showed that he had married his sponsor on 21 July 2011, but was not satisfied that Mr Migdadi and his sponsor were in a genuine and continuing spousal relationship at the time of the application. As a consequence of this finding, the delegate did not consider it necessary to consider the domestic violence claim.
3. THE DECISION OF THE TRIBUNAL
Mr Migdadi lodged an application for review of the decision of the delegate with the Tribunal on 24 February 2014. A hearing was conducted on 23 February 2015 and Mr Migdadi, together with several other witnesses, attended to give oral evidence. Mr Migdadi’s migration agent made submissions on his behalf.
In broad terms, as summarised by the Tribunal, Mr Migdadi claimed that he met the sponsor in January 2011 whilst he was working in King’s Cross. They started seeing each other after that and in June 2011 decided to marry. The sponsor and Mr Migdadi commenced living together on around 18 June 2011 and they were married on 21 July 2011. After marrying, the sponsor and Mr Migdadi were living in his brother’s apartment. Six people were then living in the two bedroom apartment; Mr Migdadi’s brother and wife and their two children in one room, and the sponsor and Mr Midadi in another. Mr Migdadi and the sponsor went on a holiday to Brisbane in around August 2011, where they stayed with friends. Mr Migdadi met the sponsor’s parents on one occasion but they did not like him and he was not welcome in their home. The relationship started to break down in March 2012 and the sponsor left the apartment in June 2012.
The Tribunal addressed the question of whether Mr Migdadi was in a spousal relationship at the time of the application for the Visa. It noted that “spouse” is defined in s 5F of the Migration Act 1958 (Cth) (Act) and provides that a person is the spouse of another where the two persons are in a “married relationship”. 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; that there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship must be genuine and continuing; and that the couple must live together, or not live separately and apart on a permanent basis. The Tribunal also noted that in forming an opinion as to whether the these matters are satisfied, regard must be had to reg 1.15A of the Migration Regulations 1994 (Cth) (Regulations), which requires consideration of all of the circumstances of the relationship, including evidence of the financial and social aspects of the relationship, the nature of the household and the nature of the commitment of each to the other (reg 1.15A(3)).
The Tribunal had regard to each of these considerations and concluded that although Mr Migdadi and the sponsor were legally married, it was not satisfied that at the time the application was made the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing. The Tribunal was also not satisfied that the parties had ever lived together (or had not lived separately and apart on a permanent basis).
The Tribunal gave detailed reasons for reaching this conclusion, some of which are summarised below.
First, the Tribunal observed that Mr Migdadi and the sponsor did not have any joint ownership of assets, joint liabilities or legal obligations. They opened a joint bank account on the day of their marriage and used an address in Lakemba on that account. However, the sponsor’s Centrelink payments were not paid into that account and nor was Mr Migdadi’s pay (the evidence indicating that he was paid in cash). Furthermore, the joint bank account statements provided to the Tribunal did not indicate who was using the account, and Mr Migdadi was unable to explain some expenditure noted in it, for example, withdrawals made in September 2011 from two locations in New South Wales that Mr Migdadi denied having ever visited. The Tribunal concluded that the joint bank account was opened for the purposes of the Visa application.
Secondly, the Tribunal considered the evidence given concerning the household and living arrangements of Mr Migdadi and the sponsor. It considered the evidence given by two witnesses, Mr Migdadi’s brother and Mr A (a friend) to be unreliable as it was vague and inconsistent with other evidence. It did not accept that Mr Migdadi had lived in the apartment with the sponsor, it did not accept that his brother and family had all lived in the same bedroom and it did not consider that the evidence given by Mr Migdadi and his brother as to the living arrangements was persuasive. Furthermore, the Tribunal noted that Mr Migdadi had only provided a small number of photographs of him and the sponsor together, all taken on two occasions, one on the day that they were married and another at a shopping centre. None showed him with the sponsor at the apartment. Further, whilst Mr Migdadi’s brother and his brother’s wife provided statutory declarations stating that the sponsor and Mr Migdadi were living at the apartment, both were in the same handwriting and provided very little detail. It noted that the statutory declarations were completed four days after the marriage.
Thirdly, the Tribunal considered that there was little independent evidence before it that the sponsor and Mr Migdadi had ever represented themselves to others in the broader community or to the sponsor’s family or friends as being married to one another or that they had ever planned or undertaken joint social activities.
Fourthly, the Tribunal expressed concerns about the commitment that the sponsor and Mr Migdadi had to each other. It considered that the decision of the parties to get married was hasty and the haste was not satisfactorily explained. It considered that Mr Migdadi’s evidence regarding when the sponsor left their home was internally inconsistent, he having first stated that it was in September 2012 and later stated that it was in June 2012. It was also inconsistent with evidence provided in the statement made by his sister-in-law.
Furthermore, the Tribunal noted that independent medical reports provided were inconsistent with the evidence given by Mr Migdadi. For instance, in one report a doctor records that the parties met three months prior to their marriage, whereas Mr Migdadi’s evidence was that they met six months before their marriage. The report also said that problems surfaced in the relationship in September 2012, but at the hearing Mr Migdadi gave evidence that the sponsor had left the home in June 2012. Other discrepancies are recorded.
Ultimately, the Tribunal records that it was not satisfied that at the time of the application the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing. In those circumstances, it was not necessary for the Tribunal to consider the claims relating to domestic violence.
4. THE DECISION OF THE FCCA
Mr Migdadi filed an Application for Review of the decision of the Tribunal by the FCCA. A hearing was conducted on 21 September 2016 and Mr Migdadi was represented by a solicitor, who presented arguments on his behalf.
The primary judge records that the amended application upon which Mr Migdadi relied at the hearing contains the following ground:
The Tribunal failed to carry out its statutory duty.
Particulars
a. (i) The Tribunal found that
“Mr Migdadi’s evidence regarding the arrangements on the night of the parties’ wedding and the circumstances in which the sponsor left his home was inconsistent with other evidence before the Tribunal.”
(ii) The Tribunal failed to comply with the Migration Act s.359A in relation to this “other evidence”
The Tribunal failed to give proper consideration to the Applicant’s evidence.
b. (i) The Tribunal found that the parties’ joint bank account and a letter from his employer were contrived for the purpose of the application.
Just because the documents were “contrived for the purpose of the application” does not mean that they are not evidence of the relationship.
(ii) The Tribunal failed to consider the psychologist’s report as evidence of the parties’ relationship because it was inconsistent with the evidence of another psychologist.
Both reports are evidence of the relationship even though they may differ in focus.
(iii) The Tribunal dismissed the letter from the parties’ doctor that they presented together at his surgery because
“it does not provide any insight into the parties relationship”.
(iv) The Tribunal dismissed the supporting statutory declarations because “both statements were written in the same handwriting and provided very little details”.
The Statutory Declarations are at [reference given]. They are legal statements that answer the questions asked of them and are signed independently by each Declarant.
They constitute legal evidence of the matters to which they declare.
It is unnecessary to address the detail of the primary judge’s reasons in relation to each of these grounds, because none of them are advanced in the draft notice of appeal relevant to the present application. However, in relation to the contention that the Tribunal failed to comply with s 359A of the Act, the primary judge referred in detail to the inconsistencies identified between the evidence given by Mr Migdadi, and that of his brother. He then had regard to the transcript of the hearing before the Tribunal and considered that it was “beyond argument” that the Tribunal had given appropriate particulars of information that it considered would be the reason or part of the reason for affirming the decision of the delegate.
The primary judge also considered the contention that the Tribunal had failed to give proper consideration to Mr Migdadi’s claims. He identified the four claims in respect of which Mr Migdadi asserted error and found that in each case the error contended for was not reasonably arguable. In the result, the primary judge concluded that the application for review raised no arguable case for relief.
5. THE PRESENT APPLICATION
I commence my consideration of this application with the observation, which is apt for many such applications, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the Visa or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa to the applicant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the applicant the Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).
In the case of the present application, the question is whether or not Mr Migdadi should be granted leave to appeal from the interlocutory decision of the primary judge, dismissing his application as having no arguable case for the relief it seeks. The draft grounds of appeal upon which Mr Migdadi proposes to rely bear no relationship to the grounds advanced before the primary judge, which means that he faces the additional hurdle of requiring leave to raise this ground on appeal for the first time; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 400. I turn now to consider the draft grounds of appeal proposed to be advanced in the event that leave is granted.
In the first ground, Mr Migdadi contends, in effect, that the primary judge failed to conclude that the Tribunal erred in finding that there was no genuine marital relationship. No particulars are given of this ground. During the course of his oral addresses, Mr Migdadi submitted that he should be given an opportunity to corroborate everything that he had asserted as to his relationship with the sponsor. In effect, Mr Migdadi’s contention is that the Tribunal ought to have arrived at a different conclusion to that which it did and that this Court should supplant its review of the merits for that of the Tribunal. However, regrettably for Mr Migdadi, that is not an arguable ground of appeal. As I have summarised above, the Tribunal reached its conclusion on the basis of findings of fact and of credit. In essence, it did not accept the version of events advanced by Mr Migdadi. The present appeal does not comprise a rehearing of that decision but is a review to consider whether there was error on the part of the FCCA. It is not apparent that the decision of the Tribunal in reaching its conclusion reflects jurisdictional error. Nor is it apparent that, had the FCCA considered this ground, it would have upheld it. The opposite is more likely. In the circumstances, I do not consider that ground one of the proposed grounds of appeal is reasonably arguable.
In the second ground, Mr Migdadi appears to contend that the Tribunal and the primary judge failed to apply the correct definition of “spouse” as it appears in the Act. No basis is advanced as to why either is said to have fallen into error. This ground cannot be sustained. The primary judge set out at [4] and [5] of his reasons the definition of “spouse” in s 5F of the Act and also the relevant provisions of the Regulations applicable to that definition. He then proceeded to consider the grounds of the application for review that were then advanced before him. No error has been advanced in relation to this reasoning. Insofar as the decision of the Tribunal is concerned, the correct definition of “spouse” was provided at [50], also having regard to, and applying, the Regulations.
I consider that ground two of the proposed notice of appeal reflects no reasonably arguable case on appeal.
In the third ground, Mr Migdadi contends that the Tribunal and the primary judge erred in “concentrating on” minor inconsistencies concerning the evidence relating to the relationship between him and the sponsor. He contends that other positive aspects of the mutual commitment ought to have led to the acceptance by the Tribunal that the relationship was genuine and continuing.
The difficulty with this ground is that, as with the first ground, it amounts to no more than a request that this Court consider the entirety of the application afresh on its merits. As has been explained in [23] above, it is not the role of this Court to conduct a merits review of the application. Accordingly, this ground must also be assessed as not reasonably arguable.
In oral argument Mr Migdadi broadly submitted that FCCR r 44.12 had been misapplied by the primary judge. That submission appeared to be directed to the decision of the primary judge that no arguable case for the relief sought had been established. The primary judge considered each of the grounds raised against the reasoning of the Tribunal. In my view the rule has not been misapplied.
Accordingly, none of the proposed grounds of appeal is reasonably arguable.
I do not consider that the two day delay in filing the application for leave to appeal significantly weighs against Mr Migdadi’s application. He is self-represented and in the circumstances of the present case I am disposed to grant the extension. However, for the reasons given, I do not consider that leave to appeal should be granted.
6. DISPOSITION
I have found that none of the draft grounds of appeal advanced by Mr Migdadi is reasonably arguable. The application for an extension of time within which to bring the application for leave is allowed, but leave to appeal should be dismissed with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 16 August 2017
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