TALEB v Minister for Immigration

[2016] FCCA 2701

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALEB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2701

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – a Partner (Temporary) (Class UK) (subclass 820) – whether the Tribunal failed to consider whether the applicant was in a de facto relationship – whether the Tribunal was open to make the adverse findings – no jurisdictional error identified – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.5CB, 476,

Federal Circuit Court Rules 2001, r.44.12.
Migration Regulations 1994, Sch.2 cl. 820.211, Sch.3 Reg.1.03 3001,
Marriage Act 1961 (Cth), s.42.
Explanatory Memorandum to the Migration Regulations (Amendment) 1996 No. 75, Sch.2 Part 820 cl.10.

Cases cited:

SZOXP v the Minister of Immigration and Border Protection [2015] FCAFC 69

Applicant: BASSEM TALEB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1046 of 2016

Judgment of: Judge Street

Hearing date: 19 October 2016

Date of Last Submission: 19 October 2016

Delivered at: Sydney

Delivered on: 19 October 2016

REPRESENTATION

Counsel for the Applicant: Mr A Silva

Solicitors for the Applicant: Legal Edge Australia

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. Dispense with the need for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

2. The second amended application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1046 of 2016

BASSEM TALEB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 April 2016, affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa. 

2. The applicant is a citizen of Armenia and applied for the visa by a sponsorship for a partner to migrate to Australia application, form 40SP. In that application there is a section, Part D - Relationship details where question 21 refers to the current relationship status with the visa applicant. A box is ticked, which identified that the sponsor and the visa applicant were married on 28 October 2014 at Lakemba. Question 24, under the same section, asks:

   When did you and the visa applicant commit to a shared life together to the exclusion of all others?

   The answer completed has a date, 28 October 2014. 

3. In support of the application, the applicant and the sponsor provided statements identifying that they have been married since 28 October 2014. There was no evidence in either statement that the parties had committed to a shared life together to the exclusion of all others prior to 28 October 2014.

4. The applicant also completed an application for migration to Australia by a partner which relatively identified a question, date applicant and sponsor committed to a shared life together to the exclusion of all others. Beside that question on page 50 of the Court book was a typed answer, “28 October 2014.” 

The Delegate’s Decision

1. On 18 November 2014, the delegate sent a letter inviting comment by the applicant in relation to the Schedule 3 criteria of the Migration Regulations 1994 (“the Regulations”) as to compelling reasons in circumstances where the applicant on its face, did not hold a substantive visa after 15 March 2013.

2. By letter dated 15 December 2014, in response to the delegate’s letter dated 18 November in relation to the issue of compelling reasons under Schedule 3, the applicant addressed the topic of compelling reasons and relevantly contended that he and his wife believed there are compelling reasons for granting the Partner visa. Under that heading, there is a sentence that relevantly provides:-

   My wife and I met for the first time on 8 December 2013 and on 28 October 2014, we committed to a shared life together to the exclusion of all others.

3. The delegate refused the application for a Partner (Temporary) (Class UK) (subclass 820) visa and Partner (Residence) (class BS) (subclass 801) visa on 12 February 2015. The delegate identified the criteria under cl.820.211 of the Regulations and relevantly the requirement for satisfaction of 820.211(2)(d)()(ii) of the Regulations.

4. The delegate identified that in order to meet the Schedule 3 criterion 3001, the application must have been validly made within 28 days after the relevant day. The delegate identified that the last substantive visa by the applicant ceased on 15 March 2013. The delegate identified that the applicant did not meet the criterion 3001 and that accordingly, the delegate had to consider whether there were compelling reasons for not applying the Schedule 3 criteria.

5. The delegate referred to the relationship between the sponsor and the visa applicant, who met on 8 December 2013 and married on 28 October 2014.  The delegate referred to the fact that there was no evidence that the applicant and sponsor had lived together prior to their marriage and that proposition was also supported by the fact that both lived at different places of residence on the marriage certificate. The Tribunal also referred to the lodging of the application for migration to Australia by a partner on 31 October 2014, at which time the parties had been in a marital relationship for three years. The delegate said that the parties were not in a longstanding partner relationship to which reference was made to the fact that such relationship is (considered to be two years).

6. The delegate referred to material having been provided as to the genuine relationship but was not satisfied that that was sufficient to waive the Schedule 3 criteria. The delegate also referred to the fact that the last substantive visa ceased on 15 March 2013 and that the parties did not marry until 28 October 2014 and that there is no evidence that the parties lived together as a de facto couple prior to the marriage.

7. The delegate also referred to the fact that the applicant had lodged an application for protection on 13 March 2013 which was refused on 5 September 2013. The delegate referred to the applicant having then appealed that decision to the Refugee Review Tribunal (“the RRT”) on 6 September 2013, which affirmed the decision of the delegate on 10 March 2014.  The delegate identified that the applicant then became an unlawful person until granted a bringing visa on 9 May 2015 as a result of lodging an application for Ministerial Intervention. 

8. The delegate noted that the request for Ministerial Intervention was identified as being unsuccessful on 2 June 2014. The delegate was not satisfied that there were compelling reasons that existed for the waiver of the Schedule 3 requirements. The delegate found that the visa applicant did not meet subclause 820.211(2)(d) of the Regulations and found that the criteria for the grant of a Partner (Temporary) (Class UK) subclass 820 (Partner) Visa were not met. The Tribunal found that the applicant did not meet the criteria for a Partner (Residence) (Class BS) (Subclass 801) Visa and refused the application for a Partner (Residence) (Class BS) (Subclass 801) Visa.

The Tribunal’s Decision

1. On 20 February 2015, the applicant applied to the Tribunal for review of the decision of the delegate.  By letter dated 22 February 2016, the applicant was invited to attend a hearing on 22 March 2016. The applicant appeared on that date to give evidence and present arguments and was also given a further week from the date of the hearing to provide further submissions or information to the Tribunal. Further material was provided to the Tribunal pursuant to that opportunity.

2. The Tribunal identified that the applicant’s last substantive visa ceased on 15 March 2013. The Tribunal identified that the relevant issue was whether the applicant satisfied the Schedule 3 criteria of the Regulations. The Tribunal identified that the applicant arrived in Australia on 20 October 2010 as the holder of a Subclass 572 visa. The Tribunal made express reference to the fact that the parties met on 8 December 2013 and the date that the parties married on 28 December 2014.

3. The Tribunal identified the correct consideration as to whether or not there were compelling reasons for not applying the criteria in subclause 820.211(2)(d) of the Regulations. The Tribunal found the applicant did not meet the criteria under cl.3001 of Schedule 3 as the applicant did not hold a substantive visa within 28 days of lodgement of the application for a visa. The Tribunal identified that as the applicant did not meet the relevant Schedule 3 criteria, it was required to consider whether there were compelling circumstances for not applying that criteria.

4. The Tribunal identified the evidence that was adduced before it and relevantly made findings in relation to the duration of the married relationship at the time of the application, being the 17 months that had expired, until the time of decision. The Tribunal made reference to the fact that the genuineness of the parties’ relationship, mutual commitment and continuing nature and the longevity of the relationship was not in and of itself a circumstance that should compel the Tribunal not to apply the Schedule 3 criteria. The Tribunal found that it was not satisfied that the genuineness of the relationship, mutual commitment, continuing nature and longevity of the relationship was a compelling reason not to apply the Schedule 3 criteria.

5. The Tribunal made a finding that the parties have not satisfied the Tribunal that their separation is a compelling reason not to apply the Schedule 3 criteria in the present case. The Tribunal made a finding that it was not satisfied that the financial hardship that would arise from the applicant’s absence in relation to the sponsor was a reason not to apply the schedule 3 criteria in the present case. The Tribunal found it was not satisfied that there is a compelling reason not to apply the Schedule 3 criteria.

6. The Tribunal found that it was not satisfied that the applicant’s psychological condition was a compelling reason not to apply the Schedule 3 criteria. The Tribunal made reference to the fact that the parties have made no claims that they were in a de facto relationship prior to their marriage on 28 October 2014. The Tribunal noted the date that the last substantive visa had ceased for the visa applicant. The Tribunal expressly found on the evidence that the visa applicant was not in a de facto or spousal relationship with the sponsor when he last held a substantive visaThe Tribunal was not satisfied that this was a compelling reason not to apply the Schedule 3 criteria.

7. The Tribunal also noted that the visa applicant did not apply for the visa under review until approximately four months after the unsuccessful application for Ministerial Intervention. The Tribunal was not satisfied that the support provided by the sponsor to the applicant was a compelling reason not to apply the Schedule 3 criteria. The Tribunal made reference to having considered the evidence individually and as a whole and was not satisfied there were compelling reasons for not applying the Schedule 3 criteria.

8. The Tribunal found that the applicant did not meet subclause 820.211(2)(c)(ii) of the Regulations. It was in these circumstances that the Tribunal affirmed the decision of the delegate.

Proceedings Before this Court

1. The grounds of the second amended application are as follow:-

   Ground 1The Tribunal made jurisdictional error in that the Tribunal applied wrong legal tests in making its decision.

   Particulars

   (a) The Tribunal applied the wrong test for “de facto relationship” which is provided in s.5CB of the Migration Act 1958

   The incorrect test the Tribunal applied in essence is that “for the applicant to satisfy the definition of “de facto partner” of the sponsor, the applicant and sponsor must have lived under the same roof”. It concluded that since they were not living together during the period 8 Dec 2003 and 28 October 2014, they were not in a de facto relationship.

   (b) The Tribunal failed to apply the correct test for the phrase "long-standing relationship" stated in Explanatory Statement to Migration Regulations (Amendment) 1996 No 75 (Cth).

   The wrong test it may in all probability have applied is that "long-standing relationship" necessarily involved either married relationship or de facto relationship. This is with respect incorrect, all that is required is a mutually exclusive relationship, which is genuine and continuing with a view to not to live apart on a permanent basis even if it does not satisfy the requirement of de facto relationship.

   Alternatively

   Ground 2

   If the Court comes to a view that the Tribunal did not apply the tests as suggested under Ground 1 then the Tribunal would have failed to take relevant considerations into account because to carry out its task the Tribunal had to deal with the issues related to those tests.

   Particulars

   (a) The Tribunal failed to consider if the relationship between 8 Dec 2013 and 28 October 2014 or part of that period consisted of de facto relationship

   (b)   The Tribunal did not consider the quality of the relationship before the marriage to assess if that could form a component of "long-standing relationship" even if was not "de facto relationship". Thus it was a failure to ask a question it should have asked or a failure to take a relevant consideration into account. As a result the Tribunal failed to consider whether the applicant and her nominator were already in a long-standing relationship which has been in existence for two years or longer at the time of the decision.

2. Mr Silva of Counsel on behalf of the applicant took the Court to s.42(1)(a) of the Marriage Act 1961 (Cth) which relevantly provides as follows:-

   Notice to be given and declaration made

   (1)  Subject to this section, a marriage shall not be solemnised unless:

   (a)  notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;

1. In the course of Mr Silva developing submissions in relation to Ground 1, the Court made an order dispensing with the show cause hearing. With the consent of both parties, the Court continued the hearing as a substantive hearing on the merits of the application.

2. Mr Silva contended that the answer to question 24 by the applicant in the application for the visa was obviously answered incorrectly on the premise that the substance of the question reflected the substance of s.42(1)(a) of the Marriage Act 1961 (Cth). Mr Silva argued that the applicant must have committed to a shared life together to the exclusion of all others prior to 28 October 2014 because of the notice requirements in relation to the intention of marriage. Question 24 does not mirror the substance of the notice requirement in relation to s.42. I reject the submission that the answer to question 24 was something that the Tribunal should have found was wrong because of the provisions of s.42(1)(a) of the Marriage Act 1961 (Cth). I also note that no such argument was raised before the Tribunal.

3. Mr Silva submitted that the statements provided by the applicant and the sponsor as well as other evidence supported a proposition that there was a de facto relationship prior to the date of marriage that should have been the subject of deliberation and evaluation by the Tribunal. 

4. Mr Silva argued that the Tribunal should have turned its mind to s.5CB of the Act in relation to the meaning of a de facto relationship and the Tribunal was required to take into account the substance of Schedule 2, Part 820, cl 10 in the Explanatory Memorandum to the Migration Regulations (Amendment) 1996 No. 75 which is set out as follows:-

   Clause 10 - Schedule 2, Part 820 (Spouse)

   Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

   It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

   where there are Australian-citizen children from the relationship; or

   where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

   In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

   Subclause 10.2 makes an amendment similar to that made by subclause 10.1 to clause 820.312 of the Migration Regulations, which applies to persons seeking to satisfy secondary criteria.

5. Mr Silva took the Court to authorities in relation to the meaning of s.5CB of the Act, including SZOXP v the Minister of Immigration and Border Protection [2015] FCAFC 69. Relevantly at paras. [62] and [65] - [66], Mr Silva contended that the Tribunal had erred in its approach to whether the parties were in a de facto relationship by focusing on the question of whether they lived together.

6. Mr Silva also took the Court to the transcript of the hearing in which the Tribunal member raised with the applicant the need to meet the Sschedule 3 criteria and that the applicant had not held a substantive visa more than 28 days within the period in which the application was made, and that the applicant accordingly did not meet the Schedule 3 criteria.

7. The Tribunal identified the substance of the issue that it was required to consider where the applicant did not meet the Schedule 3 criteria, including whether the visa applicant had a genuine spousal relationship, and whether they continue to be in a genuine and continuing spousal relationship, and that this involved considering whether they had a mutual commitment to a shared life as husband and wife, to the exclusion of all others, and whether they were living together and not separately and apart on a permanent basis, and also taking into account the relationship, including financial and social aspects, the nature of the household and the intentions related to the household arrangements and the nature of the commitments to each other.

8. The Tribunal explored the relationship between the applicant and his sponsor, identifying in the evidence when they met and how they met, as well as when they started living together. The Tribunal identified in the course of the hearing, concerns it had with the applicant’s evidence and inconsistencies, and provided a further week for the applicant to respond. The transcript also identifies submissions being put on behalf of the applicant as to there being compelling reasons not to apply the Schedule 3 criteria because of the relationship and the depression of the applicant.

9. In relation to Mr Silva’s argument about the explanatory memorandum, the substance of that memorandum referred to the longevity of the relationship. From the face of the Tribunal’s reasons, the Tribunal took into account the longevity of the relationship in considering whether there were compelling circumstances. I do not accept that the Tribunal failed to have regard to the substance of the explanatory memorandum in its decision making. Further, I do not accept that the explanatory memorandum was a mandatory consideration to which the Tribunal was bound to have regard in determining the application.

1. The Tribunal was not determining in the present case, whether there was a de facto relationship under s.5CB of the Act. The Tribunal did not apply the incorrect test in considering whether there were compelling circumstances. The Tribunal did consider whether the parties were in a de facto relationship, and found that they were not. That was a finding clearly open to the Tribunal in light of the answers the applicant provided to question 24 and the other evidence to similar effect. That finding by the Tribunal was clearly open on the evidence before the tribunal.

2. The Tribunal did not make any jurisdictional error in its determination of whether there were compelling circumstances.  The adverse findings by the Tribunal were open on the evidence before the Tribunal.  There was no failure by the Tribunal to apply the correct test in that determination. I reject the submission that the Tribunal determined the question of whether the applicant was in a de facto relationship merely to be a reference to whether they lived together. Ground 1 fails to make out any jurisdictional error.

3. In respect of Ground 2, Mr Silva of Counsel, again, skilfully argued that there was evidence of a de facto relationship that should have been the subject of consideration and findings by the Tribunal. Mr Silva took the Court to the evidence that he contented supported a potential finding that there was a de facto relationship prior to 28 October 2014.  That evidence was a matter for the Tribunal to determine, and was clearly inconsistent with the answer by the applicant provided to question 24, apart from the other evidence I have referred to before the Tribunal to similar effect.

4. The finding by the Tribunal that there was no de facto relationship prior to 28 October 2014, was open to the Tribunal on the material before the Tribunal. The Tribunal did not make any error of law in the making of that determination. The Tribunal did not take into account an irrelevant consideration or fail to take into account a relevant consideration in the making of that finding.

5. Further, the evidence to which Mr Silva referred was insubstantial and inconsequential evidence. It was not necessary for the Tribunal to identify the whole of the evidence in its adverse findings. No jurisdictional error as alleged in Ground 2 is established.

6. In relation to Ground 2, I should also add it is apparent from the Tribunal’s express reasons that it did identify the commencement of the relationship and the date that the parties got married. The Tribunal did take into account the longevity in its determination as to whether there were compelling circumstances. For these reasons, no error of the kind in Ground 2 is made out.

7. The second amended application fails to make out any jurisdictional error.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 November 2016