Zaki v Minister for Immigration
[2017] FCCA 767
•4 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZAKI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 767 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to have regard to relevant considerations, did not consider all material evidence and was biased. |
| Legislation: Migration Act 1958, ss.5F, 474 Migration Regulations 1994, reg.1.15A, cls.820.211, 820.221 of sch.2 |
| Cases cited: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197 |
| Applicant: | KASHIF RIAZ ZAKI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 230 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 30 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Sydney by video-link to Perth |
| Delivered on: | 4 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A. Ladhams of Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 230 of 2016
| KASHIF RIAZ ZAKI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Zaki, is a citizen of Pakistan who first arrived in Australia on 8 May 2011 as the holder of student visa which was due to expire on 30 October 2013. On 29 October 2013 he applied for a combined Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visa. Mr Zaki’s application was sponsored by his wife, Ms Nina Rose, who is an Australian citizen. On 12 September 2014 a delegate of the first respondent (“Minister”) refused Mr Zaki’s application for a subclass 820 visa on the basis that he did not satisfy cl.820.211 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he and his sponsor did not meet the definition of “spouse” found in s.5F of the Migration Act 1958 (“Act”). Mr Zaki then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous decision dated 3 December 2014 made by the Migration Review Tribunal (“MRT”), a predecessor of the Tribunal, was quashed by order of this Court on 15 September 2015.
In these judicial review proceedings the Court cannot rehear Mr Zaki’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 Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
An applicant for a partner visa is required to satisfy a two stage process: he or she must first be granted a provisional visa, being a Partner (Temporary) (Class UK) subclass 820 visa, in order to be considered for the grant of a permanent visa, being a Partner (Residence) (Class BS) subclass 801 visa.
The criteria for the grant of a subclass 820 visa are found in pt.820 of sch.2 to the Regulations. One of the criteria which Mr Zaki had to satisfy at the time he made his application was cl.820.211. At the time a decision was made on his application Mr Zaki also had to satisfy cl.820.221. As they applied to the applicant’s case, cls.820.211 and 820.221 relevantly provided:
820.21—Criteria to be satisfied at time of application
820.211
…
(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; …
…
(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; …
…
820.22—Criteria to be satisfied at time of decision
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (3), (4), (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).
Sub-clauses 820.221(2) and (3) were not relevant to the applicant.
The term “spouse” is defined in s.5F of the Act which provides:
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 sets out the matters a decision-maker must consider when determining whether the conditions for a spousal relationship set out in s.5F are met. At all relevant times reg.1.15A provided:
1.15ASpouse
(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:
….
(c) a Partner (Residence) (Class BS) visa; or
(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
Visa application
At the time he lodged his application Mr Zaki was thirty-five years old while Ms Rose was forty-three years old. In a statement dated 16 October 2013 made in support of his application Mr Zaki claimed:
a)he and Ms Rose met on Facebook on 28 August 2012 and immediately became “special friends”. He fell in love with her on meeting her face-to-face for the first time on 10 September 2012. After that meeting they met or talked on a daily basis. They entered into a relationship in September 2012 and married on 1 September 2013;
b)Ms Rose had met his brother and two sisters who lived in Australia and his whole family liked her. Half of his family attended their wedding and his family overseas had also sent them wedding gifts. They were planning on holding another wedding celebration in Pakistan for his extended family;
c)his uncle and aunt who live in the USA had invited them to visit and they also planned to travel elsewhere together;
d)they lived together. They liked to go shopping with Ms Rose’s daughter (who was ten years old), and celebrated special occasions such as birthdays together; and
e)they had a shared mobile telephone plan. As a student he was only allowed to work twenty hours a day but he tried very hard to provide for Ms Rose and Ms Rose’s daughter.
In a statement also made on 16 October 2013 Ms Rose confirmed the details in Mr Zaki’s statement concerning the commencement of their relationship. She also stated:
a)she and Mr Zaki commenced living together on 28 September 2012 but Mr Zaki also lived at his family home a few days a week because it was nearer to his college and work. At that stage Mr Zaki did not contribute financially to their relationship as he was only allowed to work twenty hours a week. They hoped that after being granted a spouse visa he would be able to “act in his full capacity as the main earner as husband and father”;
b)her daughter loved Mr Zaki. He had bought her a number of gifts; and
c)Mr Zaki’s family had completely embraced her and her daughter. They had paid for her wedding gown and ring and gave them wedding gifts. She had also met his brother and two sisters living in Australia.
In support of his application Mr Zaki provided:
a)a marriage certificate issued by the Western Australian Registry of Births, Deaths and Marriages and a marriage certificate issued under Sharia Law indicating that Mr Zaki and Ms Rose married on 1 September 2013;
b)a typed letter purportedly from Mr Zaki’s aunt and uncle in the USA, stating that they were happy to hear about his wedding but were unable to attend;
c)a FedEx delivery slip for goods sent from the USA to Ms Rose at an address in Mundaring, WA (“Mundaring address”) and a DHL delivery slip for goods sent from Pakistan to Mr Zaki at an address in Ascot, WA (“Ascot address”). Mr Zaki and Ms Rose stated that those delivery slips related to gifts sent to them by his family;
d)a statutory declaration made by a friend of Mr Zaki on 28 September 2013 and a statutory declaration made by his brother on 9 October 2013, both attesting to the genuineness of his relationship with Ms Rose;
e)a handwritten note stating “Best Dad’s Award to Zaki: Best Dad in the World”;
f)a bank statement for the period between 25 September 2013 and 8 October 2013 in relation to an account in Mr Zaki and Ms Rose’s names. The statement was addressed to them at the Mundaring address. The statement only showed five transactions, including two debits of $160 and $18, and had a closing balance of $0;
g)an invoice from the Western Australia Department of Transport for a “Licence and Third Party Insurance Policy” addressed to Mr Zaki at the Mundaring address;
h)a document dated 3 September 2013 from Vodafone confirming the upgrade of Mr Zaki’s mobile phone plan. The document was addressed to Mr Zaki at the Mundaring address; and
i)a contract agreement between Ms Rose and Vodafone dated 3 September 2013. The document noted the Mundaring address as Ms Rose’s address.
Migration Review Tribunal review
As noted earlier, the delegate refused to grant Mr Zaki a subclass 820 visa.
On 2 October 2014 Ms Rose sought a review of the delegate’s decision with the MRT. In the course of the MRT proceeding, Ms Rose provided a letter dated 24 September 2014 signed by her parents. The letter stated that:
a)Ms Rose’s parents were initially concerned about the cultural differences between Mr Zaki and Ms Rose but after coming to know Mr Zaki they realised that they were compatible and in love;
b)after they married Mr Zaki and Ms Rose’s primary residence was the Mundaring address but they also occasionally stayed with Mr Zaki’s brother at the Ascot address;
c)on 10 July 2014 Mr Zaki was involved in a car accident and was hospitalised for a few days. At the time his parents were visiting from Pakistan and so on his release from hospital he, Ms Rose and Ms Rose’s daughter lived with his brother so they could be closer to his family during his recovery;
d)on their return to the Mundaring address, the house was condemned because of electrical defects so they moved in with Ms Rose’s parents at an address in Toodyay, WA (“Toodyay address”) until they could find alternative accommodation; and
e)Mr Zaki was a caring and loving husband and Ms Rose was happy with him.
In a statement dated 25 September 2014 Mr Zaki confirmed the information in Ms Rose’s parents’ letter concerning his and Ms Rose’s living arrangements. He stated that he and Ms Rose were genuine partners and that he loved her daughter as if she were his own. Ms Rose also provided a statement dated 25 September 2014 in which she stated that she and Mr Zaki paid rent to her parents and that they had shared all expenses while living at the Mundaring address. She also stated that Mr Zaki treated her daughter as if she was his own child and shared in the duties of taking care of her, including driving her to school and buying her clothes. She further stated that her and Mr Zaki’s future plans included travelling together, owning their own home and having a child.
Ms Rose and Mr Zaki provided to the MRT:
a)a residential tenancy agreement in relation to the Mundaring address noting them as the tenants for a lease term from April 2014 to April 2015 and a rental payment receipt in relation to that property;
b)a document indicating that from 8 September 2014 to 7 March 2015 their post had been redirected from the Mundaring address to the Toodyay address;
c)a handwritten letter from Mr Zaki’s parents dated 15 August 2013. They stated that they were happy about his wedding to Ms Rose but could not attend because of work commitments. They also stated that they would arrange a celebration for them in Pakistan; and
d)emails from two people who attested to the genuineness of their relationship.
On 3 December 2014 the MRT found that it had no jurisdiction to consider the review application made by Ms Rose. The MRT’s decision was set aside by this Court on 15 September 2015 on the basis that the review application had in fact been made validly by Mr Zaki through the agency of Ms Rose: Zaki v Minister for Immigration & Border Protection [2015] FCCA 2575, and the matter was remitted to the Tribunal (as the successor of the MRT).
Tribunal review
In a submission dated 11 February 2016 provided to the Tribunal Mr Zaki’s representatives submitted:
a)Mr Zaki and Ms Rose did not have any real estate, major assets, or other joint major financial commitment. The had closed their joint account and did not have any other joint accounts. They did not have any major assets because of their inability to find consistent and long term employment. However, they shared household expenses such as rent and food, shared household chores and shared in the caring of Ms Rose’s daughter;
b)from December 2012 to 31 August 2013 Mr Zaki and Ms Rose lived together at the Mundaring address for three or four days a week and Mr Zaki lived at the Ascot address for two or three days a week as it was closer to his place of education;
c)from their wedding day on 1 September 2013 to 31 August 2014 Mr Zaki and Ms Rose lived together at the Mundaring address, from 1 September 2014 to February 2015 they lived together at Ms Rose’s parents’ property and from February 2015 to March 2015 they lived together at an address in Woodbridge, WA (“Woodbridge address”);
d)in March 2015 they started living apart because of difficulties with living with Ms Rose’s daughter. Ms Rose’s daughter found it hard to accept her mother living with a man who was not her father and life in the household had progressively become more difficult and stressful. Mr Zaki moved out in Ms Rose’s daughter’s best interest;
e)the separation was not permanent and Mr Zaki and Ms Rose intended to lease a larger, more family friendly home to enable Ms Rose’s daughter to have more privacy but at that stage did not have the necessary means;
f)despite their difficulties, Mr Zaki accepted Ms Rose’s daughter as his daughter and had provided her with financial and emotional support; and
g)despite not living together Mr Zaki and Ms Rose remained committed to each other. They saw each other every day, confided in each other and shared future plans.
Mr Zaki’s representatives provided:
a)a statutory dated 3 February 2016 in which Mr Zaki stated that he and Ms Rose had faced financial, emotional and mental issues which affected them and Ms Rose’s daughter. He stated that they decided that Ms Rose’s daughter needed a more stable environment and so he moved from the Woodbridge address but he regularly visited them and Ms Rose also regularly visited his temporary accommodation. Mr Zaki stated that his employment had been terminated in December 2015 but he continued to contribute financially and had two credit cards which were used by Ms Rose and Ms Rose’s daughter; and
b)a statutory declaration dated 3 February 2016 in which Ms Rose stated that after their marriage she and Mr Zaki had a difficult time adjusting to their new life. She stated that the issues they had with the Mundaring property caused them deep trauma and overwhelming mental strain and, coupled with their financial difficulties, had led to their temporary separation. They also decided that Ms Rose’s daughter needed a more stable environment. However, they were still committed to each other and communicated daily. Ms Rose stated that Mr Zaki contributed financially to their relationship when he was able, for example, he had purchased roadside assistance for her, had paid for her car to be serviced and they had taken out comprehensive car insurance in both their names. He also contributed towards rent and household expenses.
Mr Zaki’s representatives also provided:
a)a PAYG summary for the period July 2014 to June 2015 showing that Mr Zaki had earned $3,882 in that financial year;
b)a letter from Ms Rose’s father stating that she and Mr Zaki had paid him $3,250 in rent between 1 September 2014 and 31 December 2015;
c)a lodgement of security bond money form in relation to the Woodbridge address listing Mr Zaki and Ms Rose as tenants;
d)statutory declarations made by Mr Zaki’s two sisters on 4 February 2016 attesting to the genuineness of his relationship with Ms Rose; and
e)various photographs of Mr Zaki and Ms Rose together.
Mr Zaki appeared before the Tribunal on 18 February 2016 and gave the following evidence:
a)he and Ms Rose met on Facebook socially. At the time he was not looking for a wife. He saw her photograph and thought she was beautiful so he sent her a friend request and they started chatting. They communicated through messages for a few days before meeting for the first time in a park in August or September 2012;
b)their relationship progressed quickly and in December 2012 they made the decision to marry. He told his family about his relationship after one or two months and they moved in together after two or three months;
c)his family supported his relationship. His brother attended the wedding and his parents also attended through Skype. His mother had provided a traditional dress for Ms Rose;
d)Ms Rose had not converted to his religion and they had never discussed the issue;
e)they wanted to have a child but Ms Rose’s age might be a problem. Ms Rose had stress, tension and panic attacks and the doctor had told her she needed to be relaxed to be able to have a baby. He wanted a baby but his wife was more important to him. He did not believe in IVF technology and so they had discussed adopting a child but they were not yet financially secure enough for that;
f)Ms Rose had mental health issues and had sought counselling for them; and
g)Ms Rose’s daughter had never called him “dad” but he felt like she was his daughter. He had not made any legal attempts to become her step-father or guardian because she was attached to her mother.
Ms Rose also attended the Tribunal hearing and gave the following evidence:
a)Mr Zaki initiated contact with her on Facebook and although she did not usually connect with strangers, something about him touched her. She conceded that the manner in which he contacted her could be seen by others as having been an attempt to find a wife;
b)she and Mr Zaki had not known how to properly communicate with each other which caused them to fight and made their relationship volatile and frightening. Ms Rose’s daughter had been exposed to their fighting and the volatility of their relationship. She had feared for all their safety and had become depressed. However, Mr Zaki had never punched or pushed her, although he had physically held on to her;
c)she had wanted her daughter to be in a stable environment and for her and Mr Zaki to reconnect. Since their separation they had changed and had become more understanding. Once Ms Rose’s daughter settled, she and Mr Zaki would resume living together;
d)she respected Mr Zaki’s religion but had told him that if he ever asked her to convert to Islam she would leave him. He had only told her that if she converted she would be saved but had not tried to force her; and
e)she wanted to have another child but her age and their financial circumstances prevented it. She and Mr Zaki had not considered IVF because of financial reasons. They had never discussed that he did not believe in IVF.
At the Tribunal hearing, the Tribunal also received evidence from Ms Rose’s daughter, Mr Zaki’s two sisters and a friend of Mr Zaki’s brother.
Following the Tribunal hearing Mr Zaki’s representatives provided a submission stating that:
a)Facebook was not a dating site but people could meet intimate partners through the website. Mr Zaki and Ms Rose met on the website because of their mutual interest in photography and poetry. Attached to the agent’s submission were screenshots of messages, including Facebook messages, exchanged between Mr Zaki and Ms Rose;
b)even though his marriage had faced problems, in his oral evidence Mr Zaki had described it as being idyllic because in Pakistani cultures such issues were not discussed in public. He had not been attempting to mislead the Tribunal and had in fact referred to the problems in the relationship in his statutory declaration made on 3 February 2016; and
c)Mr Zaki’s actively participated in Ms Rose’s daughter’s life but he did not contribute financially to her education because she had been left a legacy by her late father.
Ms Rose’s parents confirmed in an undated statement that Ms Rose’s daughter had been left a legacy by her father for her maintenance, education and advancement in life. They stated that they were the trustees of Ms Rose’s daughter’s legacy.
The Tribunal’s decision and reasons
The Tribunal found that Mr Zaki and Ms Rose were validly married for the purposes of s.5F(2)(a). However, on the evidence before it the Tribunal was not satisfied that at the time Mr Zaki made his application and at the time it made its decision he and Ms Rose were in a spousal relationship. It therefore concluded that Mr Zaki did not meet cls.820.211(2) and 820.221 and affirmed the delegate’s decision to refuse him a visa.
In reaching its conclusion the Tribunal considered the evidence Mr Zaki had provided in relation to the financial aspects of his relationship with Ms Rose. The Tribunal found that Mr Zaki and Ms Rose had provided little information about how they managed their combined resources for their everyday living expenses. In that regard:
a)the Tribunal accepted that a marriage might sometimes have periods of conflict and separation but it found that if there was an ongoing commitment there would have been evidence of how Mr Zaki supported Ms Rose and Ms Rose’s daughter. It noted that while many written and verbal assertions had been made about how Mr Zaki and Ms Rose supported each other financially, little evidence had been provided to support those assertions;
b)the Tribunal noted that even though Mr Zaki had been unable to work for some time, he had several family members in Australia and could have provided evidence of the support he received from them. It further noted that Mr Zaki had worked at some point and that Ms Rose presumably received a Centrelink income in relation to Ms Rose’s daughter and yet they had not provided evidence that they had pooled their income for their mutual benefit;
c)the Tribunal noted that it drew no adverse inference from the fact that Mr Zaki and Ms Rose were unable to purchase a home or other major assets together. However, it found that an inability to purchase a home would not have prevented them from demonstrating that Mr Zaki had made significant financial contributions to their joint households and to the separate household maintained by Ms Rose and her daughter. The Tribunal noted that Mr Zaki had provided evidence of rental agreements he and Ms Rose had entered into but it found that they did not demonstrate the source of the rental funds; and
d)the Tribunal also noted the evidence indicating that Mr Zaki did not financially contribute to Ms Rose’s daughter’s education because she held a legacy from her late father. In those circumstances, the Tribunal found that Mr Zaki played a limited role, if any, by way of financial or emotional support to Ms Rose and her daughter.
The Tribunal was also not persuaded that Mr Zaki and Ms Rose had ever lived together as spouses and as a family unit in which Mr Zaki played a significant role in the lives of Ms Rose and her daughter. In this regard:
a)the Tribunal noted that cohabitation was not a requirement of a genuine and continuing spousal relationship. However, given the limited evidence that Mr Zaki and Ms Rose had ever been, or continued to be, in a genuine spousal relationship, the Tribunal was not satisfied that they were not living apart on a permanent basis. The Tribunal noted in this connection that apart from assertions and claims made by Mr Zaki and Ms Rose, there was little probative evidence before it indicating that they had at any time shared a household as spouses;
b)the Tribunal noted that it placed some weight on the statements provided by Ms Rose’s parents concerning Mr Zaki and Ms Rose living arrangements but it found that they provided very little insight into their everyday lives as a family unit. It also noted that Ms Rose’s parents had provided little information supporting Mr Zaki and Ms Rose’s claim that their separation was temporary;
c)the Tribunal noted that the joint account Mr Zaki and Ms Rose had held at the time Mr Zaki made his application for a visa had been closed which made it question whether it had simply been set up for the purposes of the application rather than as a genuine reflection of two committed spouses sharing resources; and
d)the Tribunal noted the evidence Mr Zaki had submitted concerning his residence at the same addresses with Ms Rose and found that that evidence was limited. It found that even if Mr Zaki and Ms Rose had shared residences at times, they had not done so as parties in a mutually committed relationship and as spouses.
The Tribunal considered the evidence in relation to the social aspects of Mr Zaki and Ms Rose’s relationship and in that regard:
a)the Tribunal noted that the applicant had provided a handwritten letter allegedly written by his parents stating that they were happy about his marriage. It found that there might be instances in which it would be entirely acceptable for a young Pakistani Muslim man to marry an older Western woman who already had a child. However, given the paucity of the evidence of the genuine and continuing nature of the relationship between Mr Zaki and Ms Rose, the Tribunal did not accept Mr Zaki’s bare assertions that love had assisted them to transcend any cultural differences. The Tribunal also noted that the letter from Mr Zaki’s parents had not been verified by any authority in Pakistan and so it had concerns about its origins. It therefore placed limited weight on it;
b)the Tribunal noted that Mr Zaki had provided a number of photographs of him and Ms Rose, including photographs of their Islamic marriage ceremony with several people in attendance and one of Ms Rose being embraced by Mr Zaki’s mother during the latter’s trip to Australia in September 2014. It placed some weight on the photographs as they appeared to indicate that Mr Zaki’s mother was aware of the marriage but found that she had not been in Australia for the purposes of attending the wedding and had been here because of Mr Zaki’s car accident;
c)the Tribunal referred to a letter from Mr Zaki’s uncle in the USA stating that he could not attend his wedding. It also referred to delivery slips indicating that the applicant’s uncle had sent gifts to Ms Rose. The Tribunal placed some weight on that evidence as showing that third parties had been aware of Mr Zaki and Ms Rose’s marriage;
d)the Tribunal noted the evidence Mr Zaki had provided from family and friends attesting to the genuineness of his relationship with Ms Rose. In this regard it noted that the evidence provided by Mr Zaki’s sisters at its hearing was generalised and superficial. It also noted that it was odd that a friend of Mr Zaki’s brother attended the hearing to give evidence instead of Mr Zaki’s brother himself. The Tribunal had regard to statements made by Ms Rose’s parents but it found that they did not shed any light on how Mr Zaki and Ms Rose had maintained a commitment to each other, particularly in light of Ms Rose’s mental health issues and Ms Rose’s daughter’s difficulties in living with Mr Zaki;
e)the Tribunal noted that Ms Rose’s daughter also gave evidence at its hearing and found that her comments appeared rehearsed. It noted that she stated that Mr Zaki was not really involved in her school life and that her teachers had not met him. She further stated that Mr Zaki lived with them, which the Tribunal noted was not the case. Despite that evidence, given Ms Rose’s daughter’s age, the Tribunal made no adverse findings in respect of her evidence; and
f)the Tribunal concluded that while it accepted that third parties were aware that Mr Zaki and Ms Rose had married, it was not convinced that those third parties had been able to provide an insight into their beliefs that the relationship would continue in the future.
In relation to Mr Zaki and Ms Rose having a mutual commitment to each other, the Tribunal questioned whether they had a shared life to the exclusion of others. In this regard:
a)the Tribunal noted that Ms Rose and her daughter had undergone some sort of trauma. It noted that the trauma had triggered serious depression on Ms Rose’s part which was exacerbated by her relationship difficulties with Mr Zaki. The Tribunal accepted that the treatment Ms Rose was receiving might not have been directed only to her issues with Mr Zaki because her parents had stated that she had experienced a major trauma in 2010, before she met Mr Zaki. Nevertheless, the Tribunal noted that it would have expected some information from an independent counsellor concerning Ms Rose’s progress and an opinion from the counsellor on whether Ms Rose and Mr Zaki were working towards living together again. It also noted that it did not appear that Ms Rose’s daughter was receiving counselling, which it would have expected Mr Zaki and Ms Rose to arrange to ensure that any return to living together would occur without trauma to Ms Rose’s daughter. The Tribunal found that the lack of independent evidence from an expert in family matters indicated that Mr Zaki and Ms Rose were attempting to conceal the true nature of their relationship;
b)the Tribunal noted that Ms Rose stated at its hearing that if she became incapacitated, her parents or Mr Zaki would become Ms Rose’s daughter’s legal guardians but that she had not put in place any legal arrangements to that effect. The Tribunal found that that evidence was not entirely consistent with information indicating that Ms Rose’s parents were already the trustees of Ms Rose’s daughter’s estate. It found that while Ms Rose’s parents played a significant legal role on Ms Rose’s daughter’s life, there was limited evidence that Mr Zaki would have any legal role if Ms Rose was incapacitated, which weakened Mr Zaki and Ms Rose’s claims that Mr Zaki was considered as Ms Rose’s daughter’s step-father and that they had a mutual commitment to each other;
c)the Tribunal found Mr Zaki’s evidence regarding having a child with Ms Rose when he was financially settled implausible and lacking in credibility. In that connection, it found that little evidence had been submitted to show that Mr Zaki and Ms Rose had taken decisive action to have a child naturally. The Tribunal was not persuaded by Mr Zaki’s claims that he did not believe in IVF, noting that Ms Rose stated that they had never discussed the issue. The Tribunal was also unconvinced that Mr Zaki and Ms Rose were serious about adopting as there was limited evidence that they had made concrete investigations in that regard. The Tribunal further noted that it had gained the impression that Mr Zaki wanted to be a father which led it to question why he had entered into a relationship with a woman who would find it hard to conceive naturally;
d)the Tribunal noted that it was not concerned that Mr Zaki and Ms Rose might have met on Facebook but it was concerned about the rapidity of the formation of their romantic relationship. It was not satisfied by Mr Zaki’s claim that he had contacted Ms Rose because he had liked her photo, noting Ms Rose’s concession that it could appear that he had been in fact looking for a wife. The Tribunal placed some weight on the evidence of Mr Zaki and Ms Rose’s communication on Facebook but it found that in isolation it was not compelling evidence that they had been in a genuine and continuing spousal relationship for over two years; and
e)the Tribunal noted that at the time Mr Zaki filed his application he provided a drawing stating “The Best Dad’s Award to Zaki” even though he claimed that Ms Rose’s daughter never called him “dad”. Even accepting that the drawing had been made by Ms Rose’s daughter early in Mr Zaki and Ms Rose’s relationship, the Tribunal did not accept that at the time it made its decision it evidenced a mutual commitment in a continuing spousal relationship.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.Errors made by the Department of Immigration (tribunal and immigration officer) in their interpretation of law.
2.Unfair decision and reasons given by tribunal case officer. Tribunal officer was totally biased about me and my relationship and the evidences I provided.
3.Primary/Important points were neglected. Legal evidences and witnesses statements were not considered as merit of the case.
Ground 1
The allegation that, relevantly, the Tribunal made errors of law was not particularised and so lacks meaningful substance. Moreover, based on its decision record, it is not apparent that the Tribunal misunderstood or misapplied any of the regulatory provisions relevant to Mr Zaki’s review. In the circumstances, the allegation made in the first ground of the application has not been made out.
Ground 2
The second ground of the application raises two matters. The first is an allegation that the Tribunal’s decision was “unfair”. To the extent that this is not related to the second element of this ground, namely that the Tribunal was biased, it invites the Court to reconsider the Tribunal’s conclusion on the merits of Mr Zaki’s visa application. As noted earlier in these reasons, the Court cannot do that.
The second allegation in this ground, that the Tribunal was biased, was not particularised. An allegation of bias should be distinctly made and clearly proved and this allegation satisfied neither of those requirements: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69]. Relevantly in that connection, it appears to be an allegation of actual bias. The only evidence relevant to that allegation was the Tribunal’s decision record, which does not support a conclusion that the Tribunal approached the review with a state of mind which was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Jia at 532 [72]. Instead, it was a careful and detailed exposition and analysis of the material before it by reference to the tests which the Tribunal had to apply.
In his address to the Court Mr Zaki argued that the Tribunal had not listened to the evidence which was given, had suggested that he was selfish and had married in order to obtain a visa, questioned his use of Facebook as a means of meeting Ms Rose and had also questioned the desire of him and Ms Rose to have a child of their own. The implication of these submissions was that a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably have apprehended that the Tribunal might not have been bringing an impartial and unprejudiced mind to that review: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
However, an allegation of apprehended bias cannot be proved by reliance only on the decision-maker’s reasons for decision. As was said in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427:
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment. (emphasis included) (reference omitted) (at 446-447 [67] per Gummow ACJ, Hayne, Crennan and Bell JJ)
In this case, notwithstanding an order made on 22 June 2016 that any reliance on what was said at the Tribunal hearing was to be supported by a transcript verified by affidavit, no such transcript was filed or tendered in this proceeding. Consequently, even accepting for present purposes that what Mr Zaki said from the bar table concerning the conduct of the Tribunal at its hearing was accurate, there is insufficient evidence to make out an allegation of apprehended bias. I accept that the Tribunal may well have put certain challenging propositions to Mr Zaki but that does not persuade me that the hypothetical lay observer might have apprehended the possibility that the Tribunal’s mind was not impartial and unprejudiced. As was said in Re Refugee Review Tribunal; Ex parte H:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. … (at 435 [30])
Ground 3
It may be that the third ground of the application alleges that the Tribunal failed to have regard to certain relevant considerations or it may be that it alleges that material evidence was not considered. Whichever is the case, no particulars were provided and the allegation was not elucidated at the hearing of this application. For those reasons alone the allegation has not been made out. However, as the summary of the Tribunal’s very comprehensive decision record set out earlier in these reasons indicates, it is not apparent that the Tribunal failed to take any relevant consideration into account or failed to consider evidence in such a way as might have affected the outcome of the review: Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197 at 217-218 [90], [92].
At the hearing Mr Zaki did say that he had provided certain information to the solicitor who assisted him in the review process, including at the Tribunal hearing, but the solicitor did not provide it to the Tribunal. This information was bank statements and documents concerning domestic violence proceedings Mr Zaki had brought against Ms Rose. However, nothing was put to the Court to suggest that any failure to place that information before the Tribunal occurred in circumstances which would require the Tribunal’s decision to be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 4 May 2017
0
8
3