Nadda v Minister for Immigration

[2019] FCCA 2699

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADDA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2699

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant and sponsor found not to have ever been in a genuine spousal relationship – whether the Tribunal breached s.359A of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A

Migration Regulations 1994 (Cth)

Cases cited:

Hossain v Minister for Immigration(2018) 359 ALR 1
Minister for Immigration v Chamnam You [2008] FCA 241
Minister for Immigration v SZGUR (2011) 241 CLR 594
Minister for Immigration v SZMTA(2019) 363 ALR 599
SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: AMER NADDA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3614 of 2018

Judgment of: Judge Driver

Hearing date: 23 September 2019

Delivered at: Sydney

Delivered on: 9 October 2019

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application in respect of which leave was granted on 23 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3614 of 2018

AMER NADDA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant (Mr Nadda) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 December 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Nadda a partner (residence) visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. Mr Nadda is a citizen of Lebanon.  He met Alaa El Bardouh (the sponsor) in Lebanon in 2011.  The sponsor migrated to Australia in June 2013.  In December 2014 the sponsor returned to Lebanon to visit Mr Nadda.  They were engaged to be married on 21 December 2014.[1]  On 29 December 2014 Mr Nadda applied for a Prospective Marriage (TC 300) visa in Lebanon, which was not granted until 14 September 2016.  On 26 September 2016 Mr Nadda travelled to Sydney.[2]  He and the sponsor were married in Melbourne on 24 October 2016.  On 26 October 2016 Mr Nadda applied for a Partner (temporary) (Class UK)(subclass 820) visa and a Partner (residence) (Class BS)(subclass 801) visa.  

   [1] see Mr Nadda’s visa application at Court Book (CB) 1-25

   [2] CB 191

4. By email on 23 January 2017, the sponsor wrote to the Minister’s Department withdrawing her sponsorship.[3]  By letter dated 6 February 2017, Mr Nadda was invited to comment on information that the parties’ relationship had ceased.[4]  By email dated 6 March 2017, Mr Nadda provided evidence alleging that he had suffered family violence by the sponsor.[5]

   [3] CB 73

   [4] CB 77

   [5] see CB 87 and following

5. By letter dated 24 April 2017, Mr Nadda was requested to provide information to demonstrate that his relationship with the sponsor was genuine and continuing prior to its cessation.[6]  Mr Nadda provided a response by email dated 24 May 2017,[7] together with attachments.[8]

   [6] CB 144; 149

   [7] CB 161

   [8] see CB 163 and following

6. On 3 July 2017, the delegate refused Mr Nadda’s partner visa application.[9]  The delegate considered all of the circumstances of the relationship, including the matters prescribed by regulation 1.15A of the Migration Regulations 1994 (Cth) (Regulations).  The delegate was not satisfied that the parties were in a genuine spousal relationship prior to it ceasing.[10]

   [9] CB 191

   [10] CB 195

7. Mr Nadda sought review by application to the Tribunal made on 10 July 2017.[11]  On 21 November 2018, Mr Nadda’s representative provided the Tribunal with a written submission.[12]  Mr Nadda attended a hearing before the Tribunal on 28 November 2018.[13]

   [11] CB 212

   [12] CB 288

   [13] CB 315

8. In its reasons the Tribunal states:[14]

   It was claimed that when the sponsor returned for a holiday in Lebanon in 2014 they fell in love and became engaged to be married on 21 November 2014. The applicant claimed that he bought the sponsor gold worth US$3,800 for the engagement.  It is noted that the sponsor’s movement records show that she was in Australia at that time and departed Australia on 1 December 2014, returning on 31 December 2014.  The sponsor also travelled to Lebanon on 8 December 2015, returning on 12 February 2016.

   [14] CB 325 [5]

9. The Tribunal makes the following statement in its conclusion:[15]

   The Tribunal has considered all the information before it both individually and cumulatively.  This includes taking into account the claims made of the relationship between the applicant and the sponsor which led to the granting of the Prospective Marriage Visa and the allegations and claims made in the documents in support of the claim that the applicant has suffered relevant family violence.  In assessing the information, the Tribunal is not satisfied that the applicant was ever the spouse of the sponsoring partner.

   [15] CB 335 [71]

10. On 3 December 2018, the Tribunal made its decision.[16]  It affirmed the decision under review, refusing to grant Mr Nadda a partner visa.  As outlined in the extract above, the Tribunal was not satisfied that Mr Nadda was ever the spouse of the sponsor.[17]

    [16] CB 324

    [17] CB 335 [71], [73]

The current proceedings

1. These proceedings began with a show cause application filed on 21 December 2018.  Mr Nadda now relies upon an amended application in respect of which leave was granted at the trial on 23 September 2019.  There is one ground in the application as amended:

   The tribunal failed to comply with s.359A of the Act in relation to the movement records of the applicant’s sponsor.

2. In addition to the court book filed on 18 March 2019, I have before me as evidence the affidavit of Anna Davyskib made on 16 September 2019,[18] to which is annexed a series of Departmental case notes, and the affidavit of Toufic Laba Sarkis made on 11 March 2019,[19] to which is annexed a transcript of the Tribunal hearing on 28 November 2018.

   [18] read by Mr Nadda

   [19] read by the Minister

Consideration

1. The ground in the amended application is a failure to comply with s.359A of the Migration Act 1958 (Cth) (Migration Act). The information in issue is the sponsor’s movement records.

2. Mr Nadda’s case rests upon the proposition that, at some point in the review, the sponsor’s movement records figured in the review adversely to his case. 

3. The Tribunal is said to have used these records to question Mr Nadda’s claim that he and the sponsor were engaged in Lebanon on 21 November 2014. Mr Nadda contends that the fact that the sponsor was not in Lebanon on the date that he is said to have alleged that the engagement took place “in its terms” undermines his case that he and the sponsor got engaged on that day. It is said to be clear that this formed part of “the claims made of the relationship between Mr Nadda and the sponsor which led to the granting of the prospective marriage visa” which the Tribunal said it took into account in assessing the genuineness of the spousal relationship. Accordingly it is said to have been part of the reason for affirming the decision under review. The breach is said to be material as the claim of Mr Nadda in the visa application was that he and the sponsor were engaged on 21 December 2014. Mr Nadda submits that, if the Tribunal complied with s.359A, he could have responded to the Tribunal that there was no inconsistency between the sponsor’s movement records and his claims.

4. I do not accept Mr Nadda’s contention.  In my view, Mr Nadda has failed to establish that the sponsor’s movement records were a factor in the review bearing upon the confirmation of the delegate’s decision.  In that regard, I note the following:

   a)in his visa application, Mr Nadda recorded that the date he and the sponsor committed to a shared life together, to the exclusion of others, was 21 December 2014;[20]

   [20] CB 18; see similarly the sponsorship application form at CB 54

   b)in a statutory declaration in support of his family violence claim[21] Mr Nadda claimed the parties were engaged in Lebanon on 21 November 2014.  In accordance with tradition, Mr Nadda bought gold for the sponsor.  In December 2015, the sponsor visited Mr Nadda in Lebanon again and remained there until February 2016;

   c)a letter from Dr George Hatoum, also submitted by Mr Nadda and forming part of his family violence claim,[22] stated that Mr Nadda had told the writer that, in 2014, the sponsor came to Lebanon to visit Mr Nadda and they got engaged on 21 November 2014.  In December 2015, the sponsor visited Lebanon again, and remained until February 2016;

   d)a psychological report of Medhat Metry, also submitted by Mr Nadda and forming part of his family violence claim[23] stated Mr Nadda had informed the writer of information in the same terms as identified above at (c);

   e)the delegate’s reasons[24] state, under “The applicant’s claims”, that the sponsor travelled to Lebanon on 1 December 2014 and the parties were engaged on 21 December 2014;

   f)the delegate’s decision was provided by Mr Nadda, to the Tribunal, with his review application;[25]

   g)in a written submission to the Tribunal dated 10 March 2018[26] it was submitted on behalf of Mr Nadda that:

   In 2013, [the sponsor] arrived in Australia on a permanent resident visa, dependent on her mother who came to Australia on a carer visa. Even when [the sponsor] moved to Australia, they continued to be in touch with each other and they used social media to talk to each other. In 2014, [the sponsor] went to Lebanon to see Mr Nadda and they got engaged on 21/11/2014. [The sponsor] then came back to Australia and they continued to be in touch with each other. On December 2015, [the sponsor] went to see [the applicant] again in Lebanon and she stayed with him till February 2016; and

   h)at the Tribunal hearing,[27] Mr Nadda gave oral evidence that the sponsor returned to Lebanon in 2014.  He stated: “she returned to Lebanon in 2014. And we did like ceremony to get engaged.  In November 2014 and she came back to Australia and returned to Lebanon in 2015 as well.”[28]

   [21] CB 93

   [22] CB 105

   [23] CB 114

   [24] at CB 191

   [25] CB 223

   [26] CB 288

   [27] transcript page 43, line 1; affidavit of Mr Laba Sarkis

   [28] Reproduced as written

5. In its reasons for decision, the Tribunal recorded background factual material including relevantly, at [5]:[29]

   The applicant claimed that the parties first met in September 2011 as the applicant and the sponsor lived in the same village in Lebanon. It was claimed that when the sponsor returned for a holiday in Lebanon in 2014 they fell in love and became engaged to be married on 21 November 2014. The applicant claimed that he bought the sponsor gold worth US$3,800 for the engagement. It is noted that the sponsor’s movement records show that she was in Australia at that time and departed Australia on 1 December 2014, returning on 31 December 2014. The sponsor also travelled to Lebanon on 8 December 2015, returning on 12 February 2016.

   [29] CB 325

6. At [58],[30] the Tribunal acknowledged the parties’ claim (in the visa application and sponsorship application form) that they had been in a committed relationship with one another since December 2014.

   [30] CB 333

7. It is apparent from the summary of the evidence above that Mr Nadda had claimed that the parties were engaged, and had become committed to a relationship to the exclusion of all others, in November 2014 and December 2014 (respectively).  The Tribunal’s reference to the evidence, at [5],[31] reflects the balance of the evidence as to the claimed date of the engagement being November 2014, including that advanced by Mr Nadda as part of his family violence claims, the submission of his representative, and Mr Nadda’s oral evidence at the hearing.

   [31] CB 325

8. The sponsor’s “movement records” appear at page 16 to the affidavit of Ms Davyskib.  Relevantly, they show that the sponsor arrived in Australia on 12 April 2014.  She was in Australia between that date and 1 December 2014, when she departed Australia.  The sponsor was outside of Australia from 1 December 2014 until her return on 31 December 2014.

9. In my view, the Tribunal’s s.359A obligations were not enlivened by the sponsor’s movement records.

10. First, independently and of themselves, the sponsor’s movement records did not undermine, deny, or reject, Mr Nadda’s satisfaction of the criterion in issue.[32] Whether the sponsor was inside, or outside, of Australia, on any particular date, said nothing as to whether the parties were in genuine spousal relationship by reference to s.5F of the Migration Act and regulation 1.15A(3) of the Regulations. If the records were of any relevance to the Tribunal’s reasons, it was because of their potential inconsistency with the evidence that the parties were engaged in Lebanon in November 2014. This did not enliven the Tribunal’s s.359A obligations.

    [32] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18]

11. Secondly, the movement records are not information that “would be the reason, or a part of the reason”, for affirming the delegate’s decision.[33]  Mr Nadda has not discharged his onus of proof in this respect.[34]  The Tribunal referred to the movement records in its summary of the evidence at [5][35] and it “noted” that they showed the sponsor was in Australia as at November 2014, as well as that she had travelled to Lebanon for a period during 2015-2016.  The Tribunal did no more than recount this evidence; it did not draw any adverse inference from it.  The Tribunal did not reject the parties’ claimed engagement had occurred.  It acknowledged at [68],[36] and did not reject, evidence of Mr Nadda that he did not have a good memory for dates. 

    [33] cf s.359A(1)(a)

    [34] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67]-[68]; 623 [91]; [92]

    [35] CB 325

    [36] CB 334

12. Thirdly, the substance of the information conveyed by the movement records was given by Mr Nadda to the Tribunal.[37] Specifically, the delegate’s reasons submitted by Mr Nadda to the Tribunal state at CB 223 that the sponsor had migrated to Australia in 2013, and travelled to Lebanon on 1 December 2014. It is implicit from these reasons that the sponsor was in Australia prior to 1 December 2014. Section 359A(4)(b) therefore applied to exempt this information from the Tribunal’s obligations under s.359A(1) of the Migration Act.[38]

    [37] section 359A(4)(b)

    [38] Minister for Immigration v Chamnam You [2008] FCA 241 at [16], [22]

13. In addition, given the content of the delegate’s reasons for decision as identified above, which Mr Nadda was on notice of, and where the Tribunal drew no adverse inference from any apparent inconsistency as identified at [5], any breach of s.359A by the Tribunal was not material and Mr Nadda has not discharged his onus of proving the contrary.[39]

    [39] Minister for Immigration v SZMTA(2019) 363 ALR 599 at [4]; Hossain v Minister for Immigration(2018) 359 ALR 1 at [31] and [72]

14. In my view, Mr Nadda was confronted on the review by a host of problems, among which was that he could not remember accurately either the date of his engagement or the date of his wedding.  Importantly, the Tribunal stated at [68]:[40]

    The applicant acknowledged that he did not have a good memory for dates and was confused about when certain events happen.  For this reason, when the Tribunal was putting information to him in respect of when particular events occurred the Tribunal referred to documentary evidence which would corroborate the applicant’s evidence.

    [40] CB 334

15. It is true that at [5] of its reasons,[41] the Tribunal repeated the incorrect date of the engagement of Mr Nadda and the sponsor but, read with [68] I infer that the Tribunal was aware of the accurate date identified by the delegate and the movement records which corroborated the accurate account given to the delegate.  In other words, while Mr Nadda’s own inconsistency in his written and oral statements created problems for him, the only use made of the movement records was to assist him in corroborating the accurate account of his engagement which he had given to the delegate.

    [41] CB 325

Conclusion

1. Mr Nadda has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 October 2019