Seemab v Minister for Immigration and Border Protection
[2022] FedCFamC2G 1026
Federal Circuit and Family Court of Australia
(DIVISION 2)
Seemab v Minister for Immigration and Border Protection [2022] FedCFamC2G 1026
File number(s): SYG 3627 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 21 November 2022 Catchwords: MIGRATION – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision – no matter of principle. Legislation: Migration Act 1958 (Cth) ss 5F, 359AA, 474
Migration Regulations 1994 (Cth) r 1.15A, sch 2 cls 820.211, 820.221
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 21 November 2022 Place: Sydney For the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms I. Leonard (Australian Government Solicitor’s Office) ORDERS
SYG 3627 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARSLA SEEMAB
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
21 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5,800.00.
3.The name of the first respondent in the Court record be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
The applicant is a citizen of Pakistan who arrived in Australia on 18 March 2011. On 20 January 2015 she lodged an application for a Partner (Temporary) (Class UK) visa with what is now the Department of Home Affairs (“Department”). On 23 October 2015 the applicant's application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. She was successful before the Tribunal and on 8 June 2016 her application was remitted for reconsideration to the Department.
On 4 November 2016 the applicant's application was refused by a further delegate (“Second Delegate”) of the Minister. The applicant then applied to the Tribunal for a review of that decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the latter Tribunal decision.
In this judicial review proceeding the Court cannot re-hear the applicant’s application for a visa. The Court's 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 (Cth) ("Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times cls.820.211 and 820.221 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) provided relevantly as follows:
820.21--Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
...
(c) the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
...
(d)in the case of an applicant who is not the holder of a substantive visa—either:
(i)the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
...
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
...
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
...
has suffered family violence committed by the sponsoring partner;
...
At all material times, s.5F of the Act provided:
5F 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.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Regulations provided:
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
...
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
BACKGROUND FACTS
The applicant first arrived in Australia on 18 March 2011 on a Student TU-572 visa effective until 25 March 2013. On 4 September 2012 she applied for a protection visa which was refused,a decision that was reviewed and affirmed by the Refugee Review Tribunal on 20 January 2014.
The applicant was married to her first husband from 14 September 2010 to 29 May 2012.
The applicant and sponsor met on 25 May 2014 and were married on 29 November 2014. The sponsor is an Australian citizen by birth who did not declare any previous married or de facto relationships.
On 22 September 2016 the sponsor advised the Department that his relationship with the applicant had ended and he wished to withdraw his sponsorship of her. On 27 October 2016 the applicant provided a statutory declaration in which she claimed that she had been the victim of family violence perpetrated by the sponsor.
The Tribunal's decision and reasons
The Tribunal found that the applicant was “a poor historian” who gave internally inconsistent answers that were vague and lacking in specificity and which were, at times, inconsistent with evidence in the previous Tribunal proceeding. When that was put to her by the Tribunal, the applicant agreed that her evidence had been inconsistent.
The Tribunal reviewed the applicant’s oral evidence of her relationship history with the sponsor, their day to day life and the development of family violence issues. The Tribunal placed limited weight on the applicant’s oral evidence in the absence of reliable documentation.
The Tribunal found, it not being disputed, that the applicant and the sponsor were no longer in a relationship at the time of its decision and that therefore the applicant could not meet the criterion in cl.820.221(1)(a) of the Regulations. The applicant claimed to meet the criteria in cl.820.221(3) which the Tribunal stated required a genuine partner relationship to have existed prior to the cessation of the relationship.
Whether the applicant and the sponsor were in a genuine and continuing relationship
The Tribunal found that the applicant and the sponsor had been validly married on 29 November 2014 in Sydney, satisfying the requirements of s.5F(2)(a) of the Act.
The Tribunal considered the financial aspects of the relationship and found that the applicant and the sponsor had never had any joint assets or liabilities. It accepted that the applicant and the sponsor had had a joint lease on an apartment at Yagoona but found that they paid rent separately, alternating who paid every two weeks, which indicated two individuals entering a rental agreement for one premises rather than a joint tenancy. The Tribunal found that there was no independent evidence to demonstrate that the applicant and the sponsor ever pooled their financial resources or shared their daily household expenditures, as the applicant never provided evidence of the joint bank account which she alleged they had established. The Tribunal concluded that the financial aspects of the applicant’s relationship with the sponsor were not consistent with them being in a genuine and continuing spousal relationship at any time.
The Tribunal found that although the evidence indicated that the applicant and the sponsor both resided at the Yagoona property from November 2014 to August 2016, it was not satisfied that this was as a couple, rather than as two persons residing at the one address. The Tribunal noted that the applicant and the sponsor had never had any joint responsibility for children and that the applicant did the majority of the housework and cooking. The Tribunal concluded that the applicant and the sponsor were two individuals who shared premises, rather than a couple in a genuine and continuing relationship.
The Tribunal considered evidence from the applicant regarding the social aspect of their relationship, including oral evidence that the sponsor proposed marriage very soon after they met, photographs of the applicant and the sponsor socialising together including at an event following their wedding, and supporting witness statutory declarations. The Tribunal found that despite this evidence there was limited independent evidence that the applicant and the sponsor represented themselves to people outside their families as being married to each other. The Tribunal found that the social aspects of the applicant and the sponsor’s relationship were consistent with them being in a genuine and continuing relationship at the time of the application but not at the time of decision. The Tribunal considered the evidence regarding the nature of the couple’s commitment to each other and found that it was not indicative of them being in a genuine and continuing spousal relationship.
The Tribunal put to the applicant that, in an attempt to support her application, she gave false information about the couple’s relationship in the June 2016 hearing. This was conceded by the applicant and the Tribunal placed weight on this evidence.
The Tribunal considered the applicant’s evidence that she was aware that there were problems in the marriage when, after a few months, the sponsor would stay out late at night. Tribunal received evidence from the sponsor’s mother that she considered that the sponsor was confused at the time of his marriage “because he is gay”. The Tribunal considered that the applicant’s evidence demonstrated a relationship lacking in trust and commitment from the sponsor, who threatened to withdraw his sponsorship any time the applicant attempted to work through their issues. The Tribunal concluded that the applicant and the sponsor did not provide one another with emotional support and that neither saw the relationship as being successful long-term.
The Tribunal concluded that the applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others and found that the relationship had not been genuine and continuing at any time. The Tribunal concluded that the applicant did not meet the Act’s definition of “spouse”.
Family violence allegations
During its hearing, the Tribunal put to the applicant, under s.359AA of the Act, that her evidence alleging domestic violence by the sponsor was inconsistent with her evidence to it in 2016, which the applicant conceded.
The Tribunal noted that the applicant had given evidence that the first episode of physical violence by the sponsor towards her had been after Christmas 2015, when their relationship became “rocky”. The Tribunal noted that the applicant gave evidence that the family violence she alleged was the sponsor yelling at her, pulling her hair, pushing her, and on one occasion leaving her on a train alone.
The Tribunal concluded that it was not satisfied that the applicant and the sponsor had a spousal relationship as defined in s.5F of the Act. The Tribunal found that she did not meet the criteria in cl.820.221(3) of the Regulations and so concluded it was not necessary to assess her claims of family violence.
Conclusion
As the applicant did not meet the definition of “spouse” under s.5F of the Act, the Tribunal was not satisfied that she met either cl.820.211(2) of the Regulations at the time of the application or cl.820.221(1)(a) at the time of the decision. It found that there was no evidence that the applicant met any of the alternative criteria in cl.820.221.
THE PROCEEDING IN THIS COURT
In her amended application, the applicant alleged:
1. Applicant claims that the Administrative Appeal Tribunal made a jurisdictional error when it mistook or misconstrued the facts . The Tribunal used the omission of the oral evidence in such a way that went to that beyond "mere ommission" in sequence of facts presented by the applicant during hearing. The Tribunal made a jurisdictional error when it failed to comply with the section 424 A of the Migration Act in using information ' for assessing the applicant's claim for genuine partnership relationship before withdrawing of sponsorship and occurring of Domestic violence . The Tribunal failed to understand that each case must depend upon its own particular circumstances. The Tribunal was biased in using information forwarded by the applicant .
2. Particulars: The applicant claims that there was a genuine and continuing relationship with her Partner before the ceasing of partnership relationship. The Tribunal ignored and omitted the evidence of the mother ( Ms Vickery) of sponsor when she told to the Tribunal" that the applicant had been married to her son . She said that she considered her son had been confused at that time the parties had married because he is gay"
3. The Tribunal totally omitted Ms Vickrey's ( Mother of sponsor) evidence when pointed the reason of differences and concern about the issue of her son being a gay .
4. The Tribunal made a jurisdictional error when it failed to include the sponsor's cause of concern in assessing the genuineness of the relationship. It was a vital issue and the tribunal took it as irrelevant.
5. Particulars : Applicant claims that the Tribunal made a jurisdictional error when it mistook facts about the applicant's spousal relationship .
6. Applicant married on 29 November 2014. They lived togather at one residential place, shared rent , grocery , bills and other daily expenpences . They shared their domestic chores responsibilities like cleaning , washing and cooking togather They fulfilled all cretaria of sub 820.211 . Before withdrwal of sponsorship they had genuine and continuing spousal relationship. Based on continuing spousal relationship the applicant filed application for partner Visa application .
7. The Department did not accept her application as valid application .
8. The applicant filed application for review to the AAT .
9. The AA T concluded in the decision that there are compelling reasons for not applying schedule 3 crietaria. Accordingly, the applicant does not meet cl820 .211(2) (d) (11) eport (Court Book P 129-30 ). The AAT found that according to Psychological Report the applicant is actually is in depression . The Psychlogist found " due to her persistent depressed mood states and conditions experienced by Mrs Arsla , it is highly recommended that she is supported by granting her permanent visa that will not exacerbate her symptoms and will not lose her husband and her marriage," (ourt Book P 129 para 16)
10. The applicant claims that in the decision of9 November 2017 the AAT completely discarded the importance of Psychological her condition which contributed her marriage breakup and sponsor's decision to withdreaw sponsorship.
11. The applicant claims that the Tribunal made a jurisdictional error when it made decision with closed mind in forming opinion about her spousal relationship . The Tribunal discarded the evidence of changed particular circumstances which occurred when the Sponsor changed behaviour and started to harass the applicant .
12. The applicant claims that the motivation of the applicant to get permanent Residency on the basis of sponsorship was one of the issue . The sponsor intentionally stopped the applicant to become Permanent Resident by withdrawing sponship . The sponsor used this tool to damage the future of the applicant . The AA T did not account past spousal relationship but accounted only Sponsorship to deny right of a depressed woman to enter ina civilized world . The applicant claims that first he abused financially and then discremetly informed the Department about ceasing of relationship just before completing of prescribed time for relationship for the purpose of grant of Partner visa .
13. The applicant claims that her spousal relation was genuine before occurance of domestic violence. Based on the evidences presented in the first Tribunal’s matter in 2016 the Tribunal accepted that she has genuine spousal relationship. The applicant satisfied s 5F of the Act at that time and the Tribunal remitted the matter to the Department.
14. The applicant claims that she was denied procedural fairness and natural justice when the Tribunal used the evidence of previous evidences to prove the applicant that her evidences are inconsistent and she is not a truthful witness. The Tribunal totally discared the evidence of the evidence of finanacially abuse of the applicant .
15. The Tribunal made a serious jurisdictional error when it failed to account a Continious threatenings to withdraw sponsorship is element of Domestic violence and exploitation of a depressed woman . The Tribunal concluded all the oral and written evidences of domestic violence is vague
16. The applicant claims that she is truthfull witness and she forwarded all the evidence of relationship and domestic violence are correct. The Tribunal mistook it or misconstruid the facts.
17. The applicant denies that the Tribunal's allegation that she gave false evidence to the Tribunal (under section 359AA of the Act) in June 2016 at the time of hearing. That matter was before the Tribunal to decide about the validity of Partner Application because at the time of application the applicant had had no substantive visa. The main issue in that matter was validity of application based on the applicant's particular and compelling circumstances for lodging on shore application .
The Applicant claims she satisfies all the requirements for Partner Visa . The of domestic violance occurred during her spousal relationship . The Department and the Tribunal overlooked or mistook the facts and made decision on limited information without considering all the information and circumstances .
With all respect to the applicant and not overlooking the fact that she is a litigant in person, her allegations are, in general terms, prolix, unclear and, in some cases, misconceived. I will turn to them in a moment, but before doing so, it should be recorded that the Tribunal’s reasons show that it considered, apparently comprehensively, the arguments and evidence before it and made findings lawfully open to it on the evidence.
CONSIDERATION
Turning to the allegations made in the amended application:
(a)the first, second and third sentences of para.1; paras.5, 6, 11; the second sentence of para.14; the final sentence of para.15; paras.16, 17; and the final paragraph of the amended application seek review of certain of the Tribunal's findings of fact without alleging any error affecting the lawfulness of those findings. Consequently, those allegations do not disclose a basis on which the Tribunal's decision might be set aside;
(b)the final sentence in para.1 and para.11 make allegations of bias on the part of the Tribunal which are not pleaded with precision or supported by proper particulars and so ought not be, and will not be, considered further;
(c)the final sentence of para.2 and para.3 wrongly allege that the Tribunal failed to have regard to particular evidence;
(d)paragraphs 9 and 10 make allegations regarding matters that were not in issue in the Tribunal's review;
(e)the third sentence of para.1 and the first sentence of para.14 allege that the Tribunal denied the applicant procedural fairness by not putting to her for comment or response matters that might have been a reason for affirming the Second Delegate's decision. But the Tribunal's decision record makes it clear that it did put matters to her pursuant to s.359AA of the Act and so discharged any relevant duty of that sort;
(f)paragraph 4 alleges that the Tribunal failed to consider the sponsor’s “cause of concern” when assessing the genuineness of their relationship, but did not identify what that cause of concern was. It seems likely that this allegation relates to the contention advanced in paragraph 3 of the amended application that the sponsor is homosexual. But the significance of that fact is unclear given the Tribunal's finding that the applicant and the sponsor had never had a mutual commitment to a shared life as husband and wife to the exclusion of all others or a relationship that was genuine and continuing;
(g)paragraph 12 and the first sentence of para.15 seek to agitate matters that are, because of the matters which were material to the review and what the Tribunal found about the applicant and sponsor’s spousal relationship, irrelevant to the Tribunal's decision; and
(h)paragraphs 7 and 8 of the amended application were factual allegations of a background nature.
At the hearing of the application today, the applicant made various submissions focused on the merits of her visa application. As I explained at the time and again earlier in these reasons, the Court is not empowered to reconsider the merits of the visa application.
None of the matters which the applicant has ventilated in her amended application or in her address to the Court today demonstrates a basis on which the Tribunal's decision ought to be set aside for jurisdictional error.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 7 December 2022
0
1
0