Taleb v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 820
Federal Circuit and Family Court of Australia
(DIVISION 2)
Taleb v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 820
File number(s): SYG 1822 of 2019 Judgment of: JUDGE LAING Date of judgment: 10 October 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision refusing to grant an application for a Partner (Temporary Residence) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – whether the Tribunal failed to engage intellectually with the evidence that was before it – application dismissed. Legislation: Migration Act 1958 (Cth) s 375A
Migration Regulations 1994 (Cth) Schedule 2, cl 820.211, Schedule 3 cl 3001, 3003, 3004
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 29 July 2022 Counsel for the Applicant: Mr N Poynder Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1822 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZZAM TALEB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
10 October 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant an application for a Partner (Temporary Residence) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa (partner visa application).
background
The applicant is a citizen of Lebanon. He arrived in Australia on 5 May 2008 on a Student (Higher Education Sector) (Subclass 573) visa. He was granted a further student visa on 16 March 2010, which was cancelled on 12 July 2012 for breaching a condition. Subsequent applications for review and Ministerial Intervention, and another visa application, were unsuccessful.
On 15 August 2013, the applicant made the partner visa application, on the basis of his relationship with an Australian citizen (Sponsor). At the time of the partner visa application, the applicant had not held a substantive visa since 12 July 2012, when his student visa was cancelled. It was therefore a requirement for the grant of the temporary partner visa that the applicant satisfy Schedule 3 criteria 3001, 3003 and 3004 unless compelling reasons were found for not applying those criteria: cl. 820.211(2)(d) of Schedule 2 of the Migration Regulations 1994 (Cth).
On 8 October 2013, the Sponsor advised the Department that the relationship had ceased and that she wished to withdrew sponsorship of the applicant’s partner visa application. The applicant subsequently claimed to have suffered domestic violence from the Sponsor. He provided evidence to the Department that he relied upon in this regard.
On 6 February 2015, the Delegate refused to grant the applicant a partner visa on the basis that he did not meet criterion 3001. That criterion required the visa application to have been made within 28 days of the applicant ceasing to hold a substantive visa. The Delegate was not satisfied that there were compelling reasons for waiving the Schedule 3 criteria.
The applicant sought review by the Tribunal on 24 February 2015. On 1 February 2017, the Tribunal affirmed the Delegate’s decision (first Tribunal decision). The first Tribunal decision was set aside by the Federal Circuit Court (as it was) on the basis that the Tribunal had not sufficiently disclosed a certificate issued under s 375A of the Migration Act 1958 (Cth). The case was remitted back to the Tribunal.
The applicant attended a hearing before the newly constituted Tribunal on 15 May 2019.
On 25 June 2019, the newly constituted Tribunal affirmed the refusal of the applicant’s partner visa application (Tribunal’s decision). It is this decision that is the subject of the present judicial review application.
the tribunal’s decision
As a preliminary matter, the Tribunal at [4]-[7] noted that there were certificates purportedly issued under s 375A of Act. The Tribunal noted that much of the substance of the underlying information had previously been put to the applicant, and that the Tribunal had disclosed the remainder to the applicant for comment. The Tribunal observed that the applicant had stated that he knew the underlying allegations that had been made against him and where they came from. He denied being involved in any illegal activities.
The Tribunal summarised other information that had been put to the applicant at hearing, and the applicant’s responses, at [14]-[27]. The Tribunal observed that the applicant had submitted that he had married his current partner (Sarah) in an Islamic religious wedding on 23 October 2017 and that they had been living together in a de facto relationship. The Tribunal also observed that the applicant had stated that “he would not use Sarah for Immigration even though he had been with her for 2 years” and that “they were not legally married because he was not 100% sure”.
At [28]-[31], the Tribunal summarised correspondence that it had sent and evidence it had received after the hearing, as well as country information regarding the situation in Lebanon.
The Tribunal found at [33]-[36] that the applicant could not meet criterion 3001 because the partner visa application was not made within 28 days of his last substantive visa.
Having made the finding that criterion 3001 was not met, the Tribunal considered whether there were compelling reasons for not applying the criteria.
Under the heading, “Past relationship”, the Tribunal at [41] discussed the evidence in relation to the applicant’s “short marriage” to the Sponsor. The Tribunal was not satisfied that the applicant had suffered family violence. It also did not accept that matters relating to that relationship or its demise constituted compelling reasons for waiving the Schedule 3 criteria (at [42]-[49]).
The Tribunal did not accept that the applicant’s claims regarding his situation in Lebanon gave rise to compelling reasons for not applying the criteria (at [50]-[51]).
In relation to the applicant’s relationship with Sarah, the Tribunal reasoned as follows (at [52]):
52.The applicant has also stated that he is now married to [Sarah] (albeit in a religious and not a civil ceremony) and that they are in a de facto relationship. [Sarah] has also stated that six months after she met the applicant, they got married, moved in and support each other and that the applicant is the best thing that has happened to her. Post hearing the applicant provided an unaddressed invitation to his wedding to Sarah on 22 October 2017 and also stated that [Sarah] is 4 weeks pregnant. Also provided was a letter from Dr Ghassan Alhashem dated 20 June 2019 stating that [Sarah] was 4 weeks pregnant. While the Tribunal has considered this, the Tribunal does not consider a relationship which the applicant has said he is not 100% sure about and which is yet to be assessed against visa criteria is a compelling reason why the applicant’s possible future spouse visa application (on the basis of that relationship) should not be assessed offshore or why schedule 3 criteria should not be applied. In reaching this conclusion, the Tribunal has also considered the applicant’s submission that his current circumstances involve a car accident, injury, infection, hospital, IVF, partner medical, car accident injury and feminine sickness etc however in the Tribunal’s mind, none of these vicissitudes of life are so compelling that schedule 3 should not be applied.
Having stated that it had considered the applicant’s claims “singularly and cumulatively”, the Tribunal found that it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria (at [53]). The Tribunal accordingly found that the applicant was unable to meet cl 820.211(2) and affirmed the Delegate’s decision (at [53]-[55]).
proceedings before this court
The applicant commenced the current proceedings by application filed on 18 July 2019. By the time of the hearing, the following ground was pressed:
1.The Tribunal failed to carry out the required statutory task of reviewing the decision of the first respondent, in that it failed to have regard to information provided by the applicant in support of his claim that there were compelling reasons for not applying Criterion 3001 in Schedule 3 to the Migration Regulations 1994.
Particulars
(a)The applicant claimed that a compelling reason for not applying Criterion 3001 was that he was in a long-standing spousal relationship with an Australian citizen with whom he was due to have a child, and who required his support.
(b)In its decision affirming the refusal of a visa to the applicant, the Tribunal failed to engage in an active intellectual way with the submissions and evidence provided by the applicant in support of the claim referred to in particular (a).
In support of this ground, Mr Poynder directed attention to the following evidence:
(a)The applicant’s evidence to the initially constituted Tribunal in 2017 that he was in a relationship that was becoming serious (CB 539).
(b)A undated wedding invitation to a 2017 wedding for the applicant and Sarah (CB 530).
(c)A “Gamete Cryopreservation Agreement” indicating that the couple were living together in October 2018 (CB 275).
(d)A letter from Dr Sonya Jessup dated 14 December 2018 (CB 276) noting that the couple were undergoing IVF treatment and stating:
Through this process Sarah will need support and heavily relies on her husband Azzam. Sarah has no other support in family as she has no other brothers or sisters and her mother is a pensioner.
(e)A letter provided by the applicant and Sarah dated 25 December 2018 (CB 273). That letter explained that the couple had been undergoing the process of IVF. It explained that Sarah had no brothers or sisters and that her father had left her when she was 6 months old. It also explained that Sarah’s mother was a pensioner with a “[carer] taking care of her” and that Sarah only had her husband to support her. The letter referred to a “health issue” for which Sarah had been hospitalised and in relation to which the applicant was providing support. The letter communicated the couple’s hopes to continue to spend their lives together, with their child.
(f)An email from the applicant dated 23 April 2019 (at CB 295) submitting the following issues for consideration as compelling reasons:
•wife sickness
•hospital
•unusual IVF outcome.
•pancreas massive inflammation
•the new partner family situation in the absence of any relatives to provide support and care. during chosen IVf and unchosen sicken of pancreas, infection (females things..) and Motor vehicle injury.
(g)A submission dated 23 April 2019 (CB 416) stating for consideration:
finally the recent and current circumstances(car accident, injury, infections,hostpital,IVF,partner medical,car accident injury ,femine sickness etc..).
(h)Evidence in a transcript of the hearing held in May 2019, where the applicant explained that he was religiously married to Sarah and had been living with her in a de facto relationship since October 2017. The applicant stated they were sharing their “whole life together” (at 12.9). The applicant also spoke of his unwillingness to use Sarah to obtain an immigration outcome (at 29.8) and stated (at 29.18):
And, something I did with Sarah, you ask me why you not legally married? I don’t want to go get married straight away, and the government – and, I don't know that she’s the 100 percent person now. That’s why I’m not legally married, because I – I’m not going to – I’m not going to put myself in another – in another deep hole. Whether I stay here, or I leave, or I go Lebanon, I’m not going to just rush it. Sarah, ‘til now – and, I can call her in, and then you can speak to her, and she can tell you who’s Azzam Taleb, and how good I am. I mean, she can – she – she – she live with me for two years, that one lived with me for four months. And, now, Sarah can tell you whose Azzam, and how good Azzam is, and how honest Azzam is, and how genuine Azzam is. And, she can tell you how she tells me, “Let me apply for you, let me apply for you.” And, I’ll be like, “I’d like to get it myself, and if I don’t get it myself we’ll see how we go.” I could have used Sarah, like, somehow. It’s been already two years. And, then, she tells me, but, I don’t want.
(i)A letter from Sarah dated 27 May 2019 (at CB 463) stating (inter alia):
My husband Azzam Taleb is the best thing that has ever happened to me & I would love for him to stay with me & continue our journey together. Mr Taleb is the only person I have in my life as I don’t have on siblings never met my father and I only have my [pensioner] mother whom I am looking after & giving fulltime care for.
(j)A psychologist report dated 28 May 2019 (at CB 499) which referred to the following:
In April 2017, Mr Taleb met his current wife and married on 22 October 2017. He denied the presence of domestic violence, excessive marital conflict and are planning to have children in the near future.
(k)An email from the applicant dated 20 June 2019 (CB 528) stating:
This case hasn’t been finalised yet..and today a new information has been discovered that my wife is pregnant and this may or may not be related to my current case,therefore I am wondering if I am allowed to send this new evidence to be attached to my file whether or not the member consider that’s completely up to her.
(l)A pathology report confirming the pregnancy (CB 531).
(m)A medical certificate from Dr Ghassan Alhashem dated 20 June 2019 (CB 532), stating in respect of Sarah that she: “is pregnant (4 weeks) , she needs support and help”.
Mr Poynder contended that the Tribunal’s reasoning, set out at [16] above, did not engage with this evidence in an intellectual manner. In particular, Mr Poynder submitted that although the Tribunal referred to the marriage and pregnancy, it did not refer to “the critical need for [Sarah] (an Australian citizen) to be provided with the support and help of her husband (which had been confirmed by two medical practitioners), nor to the needs of the child, who would face the prospect of having little contact or support from the father”.
I accept that the Tribunal did not specifically refer to what had been stated by Dr Alhashem in relation to Sarah’s need for support within the context of her pregnancy (nor specifically to Dr Jessup’s earlier statement that she needed support when she was undergoing IVF, nor to evidence regarding the limitations in Sarah’s ability to access other support).
The evidence regarding Sarah’s support needs after she became pregnant was, however, somewhat limited. It encompassed evidence indicating that Sarah, as a pregnant woman, would need support and that she had limited other options available to her than the applicant. Whilst Dr Alhashem referred generally in a certificate to Sarah’s need for “support and help”, he did not elaborate upon her support needs in this brief document, beyond the fact that she was 4 weeks pregnant.
The Tribunal did refer more generally to the certificate Dr Alhashem had given regarding Sarah’s pregnancy (at [52]). The Tribunal also referred to Sarah’s evidence regarding the “support” the couple were said to provide to “each other” and that she regarded the applicant as the “best thing that has happened to her”. The Tribunal, additionally, referred to the evidence that had been given regarding the time the couple had lived together, their religious wedding and marriage, their de facto status and to their history of undergoing IVF. Whilst I regard the word “etc” in [52] as somewhat unfortunate, I accept that the Tribunal was adopting language that had been previously used by the applicant.
I consider it too unlikely for an inference to be drawn that the Tribunal overlooked what had been said about Sarah’s support needs, or the obvious implications of her pregnancy, within this context. Those implications, clearly enough, included the potential for a child to result from the pregnancy who would have their own support needs.
The Tribunal’s reasoning at [52] demonstrates its consciousness that the applicant was putting forward his relationship with Sarah, and the implications of this within the context of her pregnancy, as a relevantly “compelling reason”. The Tribunal did not question, in this paragraph, Sarah’s evidence that the applicant was providing her with support, nor the evidence it had acknowledged regarding the importance of their relationship to her.
I am unable to accept, however, Mr Poynder’s submission that the Tribunal failed to intellectually engage with this evidence in a meaningful sense. The Tribunal, after acknowledging the evidence that had been given regarding the relationship (including the pregnancy), stated that it did “not consider a relationship which the applicant has said he is not 100% sure about and which is yet to be assessed against visa criteria is a compelling reason why the applicant’s possible future spouse visa application (on the basis of that relationship) should not be assessed offshore or why schedule 3 criteria should not be applied”.
The evidence the Tribunal appears to have been referring to in this regard is set out at [19](h) above. At the hearing before the Tribunal in 2019, the applicant had expressed (inter alia) that he did not wish to get legally married to Sarah “straight away” as he did not “know that she’s the 100 percent person now”. The applicant had expressed that he did not wish to put himself “in another deep hole” or “rush it”. This was despite his evidence that they were religiously married, undergoing IVF and had lived together for two years.
Mr Poynder submitted that there was important context to the applicant’s statement that he did not know if Sarah was “the 100 percent person”. This included the various other indications that had been given regarding the applicant’s commitment to the relationship. Mr Poynder also referred to the applicant’s evidence regarding his unwillingness to use Sarah for migration purposes. This included his evidence at CB 414 which was: “I need to make sure no failure in my marriage before I think of any success in immigration”. The Tribunal referred to the applicant’s evidence that he did not wish to use Sarah for immigration purposes (at [26]). Mr Poynder submitted that the effect of the applicant’s evidence was that he was “once bitten, twice shy” of relying again upon a spousal relationship for an immigration pathway.
Mr Poynder’s construction of the applicant’s evidence in this regard is understandable. Such a construction would certainly have been open to the Tribunal. Another Tribunal member may well not have placed the significance on the applicant’s evidence about being “not 100% sure” that the Tribunal as relevantly constituted did.
However, I do not accept that the Tribunal was bound to reason in the manner suggested by Mr Poynder. I accept Mr Johnson’s submission that it was open to the Tribunal to interpret the evidence, rightly or wrongly, as indicating limited commitment on the part of the applicant to his relationship with Sarah, with the consequence that what had been raised in relation to that relationship (including Sarah’s pregnancy, wishes and needs) was not accepted as relevantly “compelling”.
I am unable to find that the Tribunal’s reasoning was relevantly closed to it, based upon the material available at the time of its decision. Specifically, I am unable to conclude that the Tribunal failed to engage intellectually with the evidence that was before it. For these reasons, I am unable to find that the sole ground relied upon by the applicant ought to succeed.
CONCLUSION
I have not found that the Tribunal’s decision was affected by jurisdictional error. It follows that the application before this Court must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 October 2022
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