Salama v Minister for Immigration

[2017] FCCA 2269

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAMA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2269

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative Appeals Tribunal – definition of the term “spouse” for the purposes of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – whether the Tribunal erred in failing to consider evidence of the applicant’s spousal relationship – whether the Tribunal erred by failing to refer the applicant to an independent expert due to domestic violence – no jurisdictional error – application be dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), reg.1.15A, cl.820 of sch.2

Applicant: ELSAYED MAHMOUD ELSAYED SALAMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1982 of 2016

Judgment of: Judge Smith

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms H Musgrove, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1982 of 2016

ELSAYED MAHMOUD ELSAYED SALAMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Egypt who married an Australian citizen on 6 October 2013.  On 28 May 2014, the applicant applied for two visas.  The first was a Partner (Temporary) (class UK) (subclass 820) visa (partner temporary visa) and the second was a Partner (Residence) (class BS) (subclass 801) visa (residence visa).  Those classes of visas are interdependent in that the second cannot be granted without the first having been granted.  These proceedings concern the way in which the application for the first class of visa proceeded. 

2. On 18 June 2015, a delegate of the Minister made a decision to refuse to grant the applicant a partner temporary visa and as a consequence the residence visa.  The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision and on 19 July 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a partner temporary class visa.  The applicant now seeks judicial review of the Tribunal’s decision. 

3. The jurisdiction of this Court in respect of the application is limited to determining whether or not the Tribunal’s decision was affected by jurisdictional error.  That means, very briefly, that the Court must determine whether the Tribunal properly understood the task that it had to undertake in reviewing the delegate’s decision.  That is, whether the Tribunal understood and properly applied the law to the facts it found, and also whether it had followed the procedure required to be followed in making the decision. 

4. Before turning to the relevant facts before the Court, it is necessary to set out the criteria that had to be applied by the Tribunal. Relevant criteria for the granting of the partner temporary class visa were found in cl.820 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations).  Sub-clause 820.211(2) of the Regulations provided that the applicant had to be the spouse or de facto partner of a person who is an Australian citizen.  Sub-clause 820.211(3) of the Regulations provided that at the time of the decision, the applicant had to continue to be the spouse of that person and could do so even if the relationship between the applicant and the spouse had ceased so long as it had done so because the applicant had suffered family violence committed by the sponsor. 

5. The term “spouse” is defined for the purpose of the Migration Act 1958 (Cth) (Act) and Regulations in s.5F of the Act. It relevantly provides:

   Spouse

   (1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), 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 of all others; and

   (c)the relationship between them is genuine and continuing and;

   (d)they:

   (i)     live together; or

   (ii)     do not live separately and apart on a permanent basis.

   (Emphasis in original)

6. The Regulations provide that in considering whether a person meets those definitions, certain aspects of the relationship must be considered. Those include financial and social aspects, the nature of the parties’ household and their commitment to each other: see reg.1.15A of the Regulations.

7. With those provisions in mind it is necessary to return to the facts. 

Background

1. As I have noted, the applicant was married to an Australian citizen in October 2013. There was no question that that marriage was valid for the purposes of the Act. The applicant’s wife sponsored the applicant for his visa. The question however, was whether the applicant and his wife were spouses within the meaning of s.5F of the Act.

2. On 5 May 2015, an officer of the Department of Immigration (Department) sent to the applicant via his migration agent, a request for information which included evidence of the applicant’s relationship with his wife.  There was no response to that email.  The applicant says that his agent did not pass on that request to him and he was not aware of it until after the delegate’s decision, which was made on 18 June 2015.  The delegate decided that the applicant and his wife were not spouses within the meaning of the Act: essentially, in light of the absence of evidence to support that. 

3. After the applicant had applied to the Tribunal for review of the delegate’s decision, the Tribunal invited the applicant to attend a hearing which was to be conducted on 27 June 2016.  In that invitation the Tribunal wrote the following: 

   In considering your review application we must take into account certain matters regarding the relationship between the visa applicant and the sponsor.  These matters include the financial and social aspects of the relationship, the nature of the household, and the nature of each person’s commitment to the relationship.  We request that if you wish to rely on any additional evidence at the hearing relevant to these matters you please provide the evidence no later than 20 June 2016.

   (Emphasis in original)

4. The applicant attended the hearing conducted on 27 June 2016 and produced some material relating to his relationship with his wife.  That material included a number of photos, a residential tenancy agreement dated 9 May 2014, and a statutory declaration from a social worker giving an opinion that the applicant was the victim of family violence perpetrated by his wife. 

5. At the hearing, the applicant gave evidence that, amongst other things, he had stopped living together with his wife in June 2014: that is, shortly after the application for the temporary partner visa.  The applicant said that:

   ·he and his wife had formally separated on 28 August 2014;

   ·his wife told him that she only married him for the money and she did not love him; and

   ·his wife was pregnant with another man’s child at the time they separated.

6. The Tribunal discussed with the applicant at the hearing the matters set out in reg.1.15A of the Regulations. On 19 July 2016, the Tribunal made its decision.

7. As I have noted, there was no issue for the Tribunal that the applicant’s marriage was valid for the purposes of the Act.  However, having had regard to the evidence submitted by the applicant at the hearing, the Tribunal was not satisfied that a spousal relationship existed between the applicant and his wife at the time of the application.  For that reason, the Tribunal found that the applicant could not satisfy sub-cl.820.211(2) of the Regulations and it did not go on to consider the applicant’s claimed family violence.

Consideration

First Ground

1. There are two grounds in the application for review to this Court.  The first is that:

   The Tribunal had evidence about spousal relationship from 1 January 2013 and that we lived together by mid-January 2013 and our relationship was solid as from our marriage on 6 October 2013 until formal separation on 28 August 2014 and having provided tenancy agreement and other evidence the Tribunal erred in law by denying the domestic violence.

2. The ground refers to the tenancy agreement in particular, and states the Tribunal erred by denying the domestic violence.  At the hearing today, the applicant appeared unrepresented.  The applicant stated that the Tribunal did not properly consider his evidence that he was in a relationship with his wife at the time of the application. 

3. The applicant accepted that the Tribunal did consider that evidence but said that his real complaint was that the Tribunal did not accept that evidence.  Understood in light of that, the applicant’s real complaint is not that the Tribunal failed to conduct its review according to law but rather, that it should have accepted his claim that he was in a married relationship with his wife.  As such, the argument is an attack on the merits of the Tribunal’s decision and does not amount to an allegation of jurisdictional error. 

4. As I have explained, this Court’s jurisdiction is limited to determining whether there is jurisdictional error. It cannot interfere with the Tribunal’s consideration of the evidence so long as it is reasonably open to it on that evidence.  In my view, the Tribunal’s assessment of the evidence was open to it, and shows that the Tribunal gave close consideration to that evidence.  For instance, in examining the photographs provided by the applicant, the Tribunal noted that the photographs do not necessarily indicate that the parties, and other people photographed with them are logically spouses, even though they may indicate some kind of intimacy or relationship between them.

5. Bearing in mind the requirements of the definition of a spouse in s.5F of the Act, the Tribunal’s analysis was, in my view, open to it. For those reasons, the first ground is rejected. I would add that the reference in ground 1 to domestic violence is misconceived. As is apparent from the criteria that is summarised above, the issue of domestic violence arises for consideration at the time of the decision but is only relevant where there is, at the time of the application, a spousal relationship. As the Tribunal was not satisfied that at the time of the application, there was a spousal relationship, there was no requirement that it consider whether or not there had been family violence within the meaning of the Act and Regulations.

Second Ground

1. The second ground of the application is that:

   The Tribunal failed to refer me to an independent expert as I believed that I am a victim of domestic violence.

2. As I have explained in relation to ground 1, the issue of domestic violence did not arise on the findings of the Tribunal and for that reason, the question of referral to an independent expert does not arise either. 

3. I am satisfied that the Tribunal addressed itself to the correct question, that it had regard to all of the relevant material before it and that it arrived at a conclusion that was open on a consideration of that material. 

Conclusion

1. There is no jurisdictional error affecting the Tribunal’s decision and for that reason the application must be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     20 September 2017