Yaacoub v Minister for Immigration

[2019] FCCA 3185

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAACOUB v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3185

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Permanent) (Subclass 801) visa – whether the Tribunal took into account irrelevant considerations – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal’s decision was legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.5F, 476
Migration Regulations 1994 (Cth), reg.1.15A, cl.801.221, sch.2

Applicant: CHARBEL YAACOUB

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1480 of 2016

Judgment of: Judge Street

Hearing date: 6 November 2019

Date of Last Submission: 6 November 2019

Delivered at: Sydney

Delivered on: 6 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 6 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1480 of 2016

CHARBEL YAACOUB

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 May 2016 affirming the decision of a delegate not to grant the applicant a Partner (Residence) (Class BS) visa.

2. The applicant is a citizen of Lebanon. On 24 September 2012, the applicant made a combined application for a Partner (Temporary) (Subclass 820) and a (Permanent) (Subclass 801) visa on the basis of his marriage to an Australian citizen. The relevant marriage certificate is dated 2 September 2012. On 7 November 2012, the applicant was granted a Partner (Temporary) (Subclass 820) visa. There was no grant to the applicant of a Partner (Permanent) (Subclass 801) visa.

3. On 2 April 2015, the applicant was invited to comment on information that the spousal relationship upon which his application was based had ceased. On 7 April 2015, the applicant responded to the same denying that the relationship had ceased.

4. On 6 May 2015, a delegate made a decision to refuse to grant the applicant a Partner (Permanent) (Subclass 801) visa. The delegate was not satisfied that the applicant met the criteria in cl 801.221(2) in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) in respect of the requirements of the meaning of “spouse”.

5. The delegate’s decision identified the requirements of the Regulations that had to be met for the applicant to be found to be a spouse, beyond simply having a marriage certificate. The delegate made adverse findings in respect of the financial aspects of the applicant’s relationship with his sponsor, the nature of the household, social aspects of the applicant’s relationship and the commitment of the persons to each other.

6. On 12 May 2015, the applicant applied for review of the delegate’s decision in respect of the refusal of the Partner (Permanent) (Subclass 801) visa. By letter dated 11 April 2016, the Tribunal invited the applicant to attend a hearing before the Tribunal on 10 May 2016. The applicant appeared on that date to give evidence and present arguments.

7. The Tribunal, in its reasons, identified the background to the application for review. The Tribunal also identified the relevant law.

8. Materially, the Tribunal identified the need to consider whether the applicant met the criteria in relation to the meaning of “spouse” as defined in s 5F of the Act and, in particular, reg 1.15A(3) of the Regulations which require more than a marriage certificate.

9. The Tribunal expressly acknowledged that the applicant had provided the marriage certificate. The Tribunal also, correctly, identified that there was further criteria which it had to consider as to whether or not the applicant met the requirements in respect of the meaning of “spouse” in the Act.

10. The Tribunal expressly referred to having considered the documentary evidence which was submitted with the application, the additional evidence provided to the Tribunal and the oral evidence of the applicant, sponsor and the sponsor’s father. The Tribunal also referred to the sponsor suffering from anxiety and depression and taking medication. The Tribunal was satisfied, however, that the sponsor was able to give evidence and present arguments.

11. The Tribunal formed the view that the parties had very limited communication and that they had little knowledge of each other. The Tribunal expressly acknowledged in paragraphs 9 and 20 of its reasons that the sponsor may be affected by drugs and that communication with her is difficult. The Tribunal also referred to the applicant’s evidence that there are periods when she is not affected by drugs. The Tribunal was not convinced that, during those periods, the parties communicated with each other or that the applicant takes adequate interest in the sponsor’s affairs.

12. The Tribunal referred to the sponsor’s financial circumstances. The Tribunal identified that the applicant did not know what kind of payments the sponsor was receiving from Centrelink. The applicant’s answers as to why he did not know about this suggested to the Tribunal that either there was no communication between the partners because of the sponsor’s condition or, if there was such communication, that the applicant had little interest in such matters.

13. The Tribunal referred to the applicant’s evidence in relation to the couple having a joint account. The Tribunal also referred to the applicant’s evidence that the sponsor had another account with no funds in it. The Tribunal identified the sponsor’s evidence that the she had several hundred dollars in that account.

14. The Tribunal identified that the Centrelink payments were not received on the joint account. The Tribunal referred to the applicant’s suggestion that the Centrelink payments may be made in the sponsor’s separate account and that the money may be spent on drugs.

15. The Tribunal formed the view that the applicant has very little knowledge about the sponsor’s financial affairs. The Tribunal did, however, accept that the joint account was being used for various expenses. Yet the Tribunal found that only the applicant’s money is placed in the joint account and that the sponsor does not contribute to the same. The Tribunal found that the joint account did not represent a pooling of resources.

16. The Tribunal identified that there were no joint-owned assets or joint liabilities between the applicant and the sponsor. The Tribunal was not satisfied that the couple pool their financial resources or that they share day-to-day household expenses. The Tribunal accepted that the applicant may pay various expenses but was not satisfied that the funds were pooled.

17. The Tribunal referred to the social aspects of the applicant’s relationship with the sponsor. The Tribunal accepted that the relationship was known to others. The Tribunal took into account the applicant’s oral evidence that, because of his wife’s condition and behaviour, he was too embarrassed to see his friends. The Tribunal also took into account the applicant’s evidence that he was not sure if he had told Centrelink about the relationship.

18. The Tribunal referred to the nature of the household. The Tribunal referred to the evidence that the sponsor is affected by drugs, which affects the relationship and the sponsor’s behaviour. The Tribunal expressly identified at paragraph 14 of its reasons it acknowledging and accepting that evidence.

19. The Tribunal referred to evidence that the sponsor leaves the family home from time to time for various periods. The Tribunal referred to the sponsor’s evidence that she said she needs time on her own and that she had not left the family home for about five months, which was different to the evidence given by the applicant who referred to that period being two and a half months. The Tribunal was prepared to accept that the parties live in the same house but was not satisfied that they had established a joint household which reflects a genuine and committed relationship. The Tribunal was not satisfied the applicant and sponsor share in the housework.

20. The Tribunal referred to the parties’ commitment. The Tribunal found the applicant’s evidence in that regard to be problematic. The Tribunal referred to the oral evidence of the sponsor to the effect that the applicant was taking drugs and going out with friends. The Tribunal identified being concerned partly about the relationship being to the exclusion of all others and about the fact that the parties did not appear to have established trust and meaningful communication about issues of significance.

21. The Tribunal also raised with the applicant the sponsor’s charges. The Tribunal was concerned that the applicant had little knowledge about the same. Accordingly, the Tribunal formed the view that that reflected a lack of commitment to the relationship.

22. The Tribunal referred to the applicant’s repeated reference to the sponsor’s ill health and the need to take medicine. The Tribunal noted, however, that the applicant could not name the medication taken by the sponsor.

23. The Tribunal also explored with the applicant the medical treatment undertaken by the sponsor. The Tribunal found that the applicant’s lack of knowledge about the sponsor’s treatment suggests a lack of interest in the matter and a lack of commitment.

24. The Tribunal referred to the applicant repeatedly informing the Tribunal that the sponsor was affected by medication and drug use, her behaviour is unpredictable and that she would break things. The Tribunal acknowledged the medical evidence and accepted that this may be the case. The Tribunal identified its concern, however, about the applicant’s lack of interest or knowledge about important matters relating to the sponsor. The Tribunal was of the view that, if the relationship was genuine, the applicant would have taken greater interest in the sponsor’s health and provision of care and would have had a greater awareness of his wife’s circumstances.

25. The Tribunal also identified a number of inconsistencies in the couple’s evidence to the Tribunal. The Tribunal accepted that the sponsor’s memory may be affected and drew no adverse inference because of those inconsistencies. The Tribunal was prepared to accept that the couple lived together and that their relationship is known to others and socially recognised.

26. The Tribunal was not satisfied, however, that the applicant and the sponsor continue to socialise together as a couple. The Tribunal was not satisfied that they share their finances. The Tribunal formed the view that the applicant has little knowledge about the sponsor’s financial circumstances. The Tribunal was not satisfied that the parties continue to be committed to the relationship. The Tribunal was not satisfied that there continues to be a mutual commitment to the relationship. The Tribunal was not satisfied that the parties provide each other with comfort and support and that they draw on each other for emotional support. The Tribunal was not satisfied that either party views the relationship as a long-term one.

27. In these circumstances, the Tribunal was not satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal found that the applicant did not meet the criteria in cl 820.221(2)(c) in Schedule 2 to the Regulations.

28. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 10 June 2016. On 27 July 2016, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. The matter was fixed today for a show-cause hearing. At the commencement of the show-cause hearing, the Court explained to the applicant the nature of the show-cause hearing and the applicant confirmed that he understood the explanation given by the Court.

3. From the bar table, the applicant sought to explain why he considered the Tribunal’s decision to be the subject of a reasonable argument that it was the subject of error. The applicant’s submissions, in substance, identified the hardships that he had undergone in relation to the relationship and the difficulties he had encountered in relation to the sponsor’s condition. The applicant disagreed with the adverse findings which were made by the Tribunal and asserted that the Tribunal had no right to reject the application.

4. The applicant’s proposition clearly misunderstands the nature of the mandatory requirements which the Tribunal was required to consider. It was proper and appropriate for the Tribunal to consider each of those mandatory requirements. The Tribunal made adverse findings, for the reasons given, which were open to the Tribunal as summarised above. The applicant’s disagreement with the same does not identify any arguable case of relevant error.

5. From the bar table, the applicant suggested that the Tribunal had ignored the sponsor’s drug problems. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal accepted those difficulties but found that the applicant failed to meet the criteria which the Tribunal was required to take into account.

6. The applicant’s submissions from the bar table contended that there were compelling circumstances to support the applicant’s application for the visa. That was, in substance, an invitation to this Court to engage in merits review. This Court has no power to review the merits. This Court also has no power to determine the matter on compassionate or discretionary grounds.

7. Nothing said by the applicant from the bar table identified any arguable case of relevant error by the Tribunal.

The grounds

1. The grounds in the application are as follows:

   1. The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.

   2. The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.

   3. The decision was affected by jurisdictional error in that it was unreasonable.

2. The grounds in the application are bare assertions and do not particularise any error. There has been no irrelevant consideration identified that the Tribunal took into account. There has also not been identified any material or relevant consideration that the Tribunal did not take into account. Accordingly, no arguable case of jurisdictional error is raised by grounds 1 or 2.

3. The Tribunal provided detailed reasons for its adverse findings consistent with applying the mandatory criteria which the Tribunal was required to take into account. In these circumstances, the adverse finding in relation to the application cannot be said to lack an evident and intelligible justification. The decision of the Tribunal is not one in respect of which no reasonable decision maker could come to. No arguable case of jurisdictional error is raised by ground 3.

4. The Court has taken into account that this is an impressionistic exercise in relation to the show-cause issue as to whether there is an arguable case. The Court is satisfied that the application has not raised an arguable case for the relief claimed.

5. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). Accordingly, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  16 January 2020