Salim v Minister for Immigration
[2009] FMCA 903
•8 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALIM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 903 |
| MIGRATION – Review of Migration Review Tribunal decision – Partner (Migrant) (Class BC) Visa – refusal. |
| Migration Act 1958, s.474 Migration Regulations 1994, reg.1.15A, cl.100.111, cl.100.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | HAISSAM HABIB SALIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 77 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 September 2009 |
| Date of Last Submission: | 8 September 2009 |
| Delivered at: | Perth |
| Delivered on: | 8 September 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr A. Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 77 of 2009
| HAISSAM HABIB SALIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied for a Partner (Migrant) (Class BC) Visa on
18 September 2003 and was granted a Subclass 309 Spouse (Provisional) Visa on 21 October 2004. The applicant’s visa was sponsored by his wife, who is an Australian citizen.
On 21 April 2008 a delegate of the first respondent (“Minister”) refused to grant the applicant a Partner (Migrant) (Class BC) Visa. This decision was affirmed by the Migration Review Tribunal (“Tribunal”) on 14 May 2009 and the application before this Court seeks judicial review of the Tribunal’s decision.
In these judicial review proceedings, the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
Relevant legislation
At the time the Tribunal made its decision, cl.100.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) relevantly set out the following as criteria to be satisfied at the time of decision:
(1)The applicant meets the requirements of subclause (2), (2A), (3), (4), or (4A).
(2) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or …
(b)the applicant is the spouse of the sponsoring spouse; and
(c)… at least 2 years have passed since the application was made …
At that time, cl.100.111 of sch.2 to the Regulations stated:
In this Part:
sponsoring spouse, in relation to an applicant, means:
(a)the person who was specified as the applicant’s spouse or intended spouse in the application that resulted in the grant of the Subclass 309 (Spouse (Provisional)) visa referred to in paragraph 100.221 (2) (a), (3) (a) or (4) (a), as the case requires; or
(b)for a person to whom the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant a Subclass 309 (Spouse (Provisional)) visa ‑ the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the spouse of that person at the time the visa was granted.
At the time of the Tribunal’s decision, reg.1.15A of the Regulations stated:
Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A) …
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
Background facts
Primary application
On 28 June 2002 the applicant and the sponsoring spouse were married in Perth. On 18 September 2003 the applicant applied for a Partner (Migrant) (Class BC) visa. On 21 October 2004 he was granted a Subclass 309 Spouse (Provisional) visa on the basis of his spousal relationship with the sponsoring spouse. The applicant arrived in Australia as a holder of this visa on 27 October 2004.
On 1 February 2006 the Minister’s department wrote to the applicant requesting further information to enable it to finalise the second stage of the visa application process. On 9 February 2006 the sponsoring spouse rang the Minister’s department to inform them that her relationship with the applicant had broken down. The department wrote to the applicant on 10 February 2006 informing him that it had information that the relationship had ceased.
In a statutory declaration declared on 22 March 2006 the applicant stated that the relationship had experienced some problems but added that the two were committed to each other and were ready to move on with their future together. The sponsoring spouse provided similar statements in a statutory declaration made on 27 March 2006. On 28 March 2006 the applicant provided the Minister’s department with a rent certificate he had lodged with Centrelink earlier that month which stated that he was living with the sponsoring spouse. He also provided a photo of the couple taken in 2005, a postcard from his sister in Lebanon and details of a counselling session he had attended at Relationships Australia.
On 13 November 2006 the Minister’s department again wrote to the applicant requesting further information to enable it to finalise the second stage of the visa application process. The applicant responded providing further evidence in respect of his application, including banking details from November 2006 which indicated that the couple had a joint bank account and a term deposit; details of the purchase of a motor vehicle in joint names on 15 November 2006; rent receipts for the couple; booking details for joint travel in December 2006; statutory declarations from the sponsoring spouse’s family and friends in support of the relationship; a statutory declaration made by the sponsoring spouse on 13 December 2006 discussing the relationship with the applicant over time and stating that they were committed to a future life together; and a number of photographs of the couple taken in various social settings.
On 12 April 2007 the applicant advised the Minister’s department by telephone that the relationship with the sponsoring spouse had broken down. On 8 May 2007 he conveyed this information by letter. On 4 June 2007 the applicant informed the department that he had moved out of the home he shared with the sponsoring spouse. In a joint letter dated 17 July 2007 the applicant and sponsoring spouse stated that they had recommenced their relationship. On 3 December 2007 the sponsoring spouse wrote to the department stating that due to irreconcilable differences her relationship with the applicant was over. She also stated that she wished to withdraw her support for his visa application. She repeated this information in a statutory declaration dated 17 January 2008.
On 21 April 2009 the delegate refused the visa application on the basis that the applicant did not satisfy clause 100.221(2)(b) of sch.2 to the Regulations. The delegate was not satisfied the applicant was in a genuine and continuing spouse relationship with the sponsoring spouse at the end of the relevant two year period or that he had been in a genuine and continuing spouse relationship with the sponsoring spouse during that two year period.
Application to Tribunal
At the hearing before the Tribunal, the applicant said that his relationship with his wife was sometimes continuing and sometimes not. He said that sometimes she wanted him but at other times did not. He said that he was no longer living with her and had not done so since 2007 or 2008.
The applicant said that even though his wife had provided a statutory declaration to the Minister’s department made on 17 January 2008 saying that the relationship was over, after that date she would sometimes ask him to go to her house for a few days or to visit for a cup of coffee. He said that sometimes she agreed to start again but then would change her mind.
The applicant said that he was committed to the relationship and had gone to see his wife the day before his Tribunal hearing. Nevertheless, he told the Tribunal that the relationship between him and his wife was over. He also said that he and his wife had had a joint bank account but it had been closed and they no longer held any assets jointly.
On 14 May 2009 the Tribunal affirmed the delegate’s decision. Not being satisfied that the applicant continued to be the sponsor’s spouse within the meaning of reg.1.15A, the Tribunal concluded that the applicant failed to satisfy the spousal requirement for the grant of a Subclass 100 visa which was contained in both cls.100.221(2)(b) and 100.221(2A)(b) of sch.2 to the Regulations.
Whilst the Tribunal found that at the time of its decision the applicant and the sponsoring spouse were validly married and therefore satisfied the requirements of reg.1.15A(1A)(a), it was not satisfied for the purposes of reg.1.15A(1A)(b)(i) and (ii) that the applicant and sponsoring spouse were mutually committed to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing.
The Tribunal’s decision with respect to reg.1.15A(1A)(b)(i) and (ii) was based on the following findings and reasons:
a)whilst accepting that the applicant and sponsoring spouse had lived together in the past and shared responsibility for household duties, represented themselves to others as being married and planned and undertook social activities together, this evidence was significantly outweighed by the direct evidence given by the applicant at the hearing that from early 2008 the sponsoring spouse and he were no longer living together and that their relationship was over;
b)whilst accepting that the applicant and sponsoring spouse did have a commitment to each other in the past, at the time of the hearing the applicant’s personal and continuing commitment to the relationship was not shared by the sponsoring spouse; and
c)their joint bank account had been closed and they no longer held any joint investments or joint assets.
As a result of its finding that the applicant and sponsoring spouse were living separately on a permanent basis at the time of its decision, the Tribunal also found that the requirements of reg.1.15A(1A)(b)(iii) were not satisfied.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.I believe I satisfy cl.100.221(2)(b), I was in a genuine and continuing spouse relationship with my wife in the relevant two year period.
2.I have applied to the department of immigration and citizenship for a partner (migrant) (class BC) visa on 18 September 2003. The delegate did not make the decision until 21 April 2008.
Ground 1
In his oral submissions today, the applicant referred to a passage in the delegate’s decision (see Court Book (“CB”) page 275), where the delegate stated that he was not satisfied that the applicant and the sponsoring spouse had been in a genuine and continuing spousal relationship in the two year period following the lodgment of the visa application in 2003. Whether the delegate applied the incorrect test or reached an incorrect conclusion on the facts are not matters which are relevant to these proceedings. Here the Court is concerned with whether the Tribunal, in conducting its review, committed a jurisdictional error. A consideration of the careful and methodical way in which the Tribunal approached its task demonstrates that it did not. It analysed the facts of the application against the various criteria which it was obliged to apply and reached conclusions which were both open and logical. However, most significantly in this case is the Tribunal’s finding, which was an unavoidable one in the circumstances, that at the time of its decision the applicant and his wife no longer lived together and, in fact, were living separately and apart on a permanent basis.
Whatever complaints the applicant may have about aspects of the Tribunal’s decision, or the way that the delegate reached his decision, it is plainly clear that the Tribunal’s factual conclusion, to which I have just referred, was open to the Tribunal and was one which was fatal to the applicant’s review application because it meant that he did not satisfy one of the necessary conditions set out in the Regulations as demonstrating the existence of the spouse relationship which was a pre-condition to the grant of the visa which he sought.
Ground 2
The second ground pleaded in the application was not addressed by the applicant in his oral submissions today. In the absence of any argument that the delay – if that is what it is to be called, given that the visa involved a two-stage process and there was a degree of inquiry which preceded the delegate’s decision – was caused by lack of good faith on the part of the Minister’s department, this ground could have no substance.
Moreover, no argument was addressed in these proceedings to why the Tribunal might have erred by not addressing this point in its decision. It does not appear that the Tribunal was invited to consider this aspect of the applicant’s history and so it is difficult to conclude that the Tribunal erred by not considering it. Nor could this propounded issue be said to have arisen so clearly on the materials before the Tribunal that it was bound to have considered it.
No jurisdictional error has been demonstrated in connection with the second ground pleaded in the application.
Ground 3
In his oral submissions today, the applicant complained that the Minister’s department had written to his wife on 20 November 2007 inviting her to formally withdraw her sponsorship of him – this letter is referred to at CB 253.
It should be noted that this letter was sent following the receipt by the department of information indicating that the relationship was over. Significantly, on 3 December 2007, as already referred to in the summary of the facts appearing earlier in these reasons, the applicant’s wife did write to the department (see CB 257) saying that the parties were living separately because of irreconcilable differences and that she withdrew her sponsorship. For these reasons, and also for the reasons set out earlier in connection with the second ground pleaded in the application, this allegation discloses no jurisdictional error on the part of the Tribunal.
Moreover, the allegation’s significance and any relevance the letter which the department sent to the applicant’s wife might have had is overtaken by the applicant’s own evidence to the Tribunal that the relationship was over. That was the information which the Tribunal was required to consider.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 September 2009
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