Zaoud v Minister for Immigration

[2015] FCCA 3138

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAOUD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3138

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether Tribunal failed to notify the appellant adequately of the issues to which its reasoning processes were directed – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4, 13, 14, 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: FAYEZ MOHAMAD ZAOUD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1613 of 2015

Judgment of: Judge Street

Hearing date: 25 November 2015

Date of Last Submission: 25 November 2015

Delivered at: Sydney

Delivered on: 25 November 2015

REPRESENTATION

Counsel for the Applicant: Mr T Abdulhak

Solicitors for the Applicant: Bardo & Erci Lawyers

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. Leave is granted to the applicant to rely upon an amended application in the form of the grounds identified in the written submissions of the Applicant dated 11 November 2015.

3. The amended application is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1613 of 2015

FAYEZ MOHAMAD ZAOUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 15 May 2015, affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant arrived in Australia on 25 June 1999 on a (subclass 457) visa which ceased on 30 June 2001. The applicant applied for, and was refused, a 457 visa on 22 November 2001.  The applicant applied for a review of that decision by the MRT and the MRT affirmed the delegate’s decision on 5 August 2005.  The applicant sought Ministerial intervention and the Minister declined to intervene on 11 May 2006.  The applicant applied for a protection visa on 24 August 2007 which was refused on 30 October 2007.  

3. The applicant applied to the Refugee Review Tribunal for a review and the Tribunal affirmed the decision on 10 January 2008.  The applicant applied again for Ministerial intervention on 14 March 2008 which the Minister declined to intervene on.  With respect to that application, the Minister declined to intervene on 11 June 2008. 

4. The applicant applied for the Partner (Temporary) (Class UK) visa and BS partner a resident’s visa on 15 February 2013, in circumstances where the applicant’s bridging visa E had ceased on 15 November 2006 and the applicant had remained an unlawful non-citizen in Australia for over six years.

5. Relevantly, the Tribunal found that the applicant had unlawfully worked during that period. The Tribunal identified that the applicant was not the holder of the substantive visa as required to meet certain criterion in Schedule 3 to the Migration Regulations 1994. It was common ground in the present case that the applicant had not ceased to hold a substantive visa within the 28 day period required under criterion 3001. In those circumstances the real issue was whether or not the Tribunal was satisfied there were compelling reasons for not applying the criteria in Schedule 3.

6. Approximately a month before making the application, the applicant got married again on 10 January 2013.  The applicant’s earlier wife had passed away in 2008 or 2009.  The Tribunal identified the date of the birth of the three teenage children of the applicant’s new wife and summarised in para.32, matters advanced by the applicant to support the existence of compelling circumstances as follows:

   32. The Tribunal had regard to the applicant’s evidence at the hearing and the submission made by his migration representative to the Department on 17 April 2014 The applicant has submitted that compelling reasons that existed at the time of application are that:

   ·   separation would cause the applicant’s sponsor and her children emotional hardship as they are a “tight family unit”;

   ·   the applicant could not return to Lebanon as it would be too embarrassing and emotionally painful when he did not return during his first wife’s terminal illness or for her funeral or his mother’s funeral;

   ·   his spouse could not return to Lebanon with him as her children were settled in Australia and in school. Her eldest son was preparing for his HSC;

   ·   the applicant’s spouse was having a difficult emotional time as her sister was ill and in and out of hospital and she was reliant on his emotional support;

   ·   the applicant has recently financed a business for his sponsor and a business for himself and he has also purchased a house.

7. The Tribunal took into account and the spousal relationship had been for a period of approximately one month.  The Tribunal had a logical basis on the evidence to make that finding of fact and that was a matter that was open to the Tribunal to take into account in determining whether there were compelling circumstances. It was open to the Tribunal to find that there had not been a long standing relationship at the time of the application. 

8. The Tribunal did take into account that the applicant had provided his second wife with emotional support and took into account the potential impact in respect of the teenage children of his second wife.  The Tribunal properly identified that this was a case where the biological father still had contact with the children and the applicant’s wife had three brothers in Australia.

9. In those circumstances it was clearly open to the Tribunal to come to the finding that it was not satisfied that the children would have suffered undue emotional hardship if the applicant had separated from his new wife for the purpose of applying for his visa offshore. The Tribunal took into account that the applicant had been an unlawful non-citizen for six years without making any attempts to regularise his migration status, and that during the six year period he worked unlawfully. It was in those circumstances the Tribunal was not satisfied there were compelling reasons that existed at the time of the application for not applying the Schedule 3 criteria.

10. Leave was granted to file an amended application raising the following grounds:

    Ground 1

    1.1 The Second Respondent made a jurisdictional error by failing to comply with the requirements of s.360 of the Migration Act 1958 (Cth) and the requirements of natural justice in dealing with the issue of emotional support the Applicant was providing his Spouse at the time of the original application.

    Particulars

    a)   The Second Respondent properly considered that the Applicant’s Spouse’s need for emotional support during the terminal illness of her sister was relevant to a determination of whether there were “compelling reasons” to exempt the Applicant from the Schedule 3 criteria.

    b)   During the hearing on 14 May 2015 the Second Respondent elicited evidence in relation to the fact that the Applicant’s Spouse had three brothers who live in Australia.

    c)    The Second Respondent then relied on the above evidence to draw the inference that the Spouse’s “three brothers and their families” could have provided her with emotional support during the terminal illness of her sister.

    d)   The above inference was not drawn by the primary decision maker. Nor did the question of any assistance the Applicant’s Spouse’s brothers may have been able to provide feature in the primary decision maker’s consideration of the case. The drawing of the inference therefore engaged s.360 of the Act.

    e)    The Second Respondent failed in its obligations under s.360 and requirements of procedural fairness to:

    i.Bring to the Applicant’s attention the fact that it considered the issue relevant for the purposes of the review

    ii.Indicate to the Applicant a possible adverse inference that the Second Respondent may draw from the evidence

    iii.Give the Applicant a reasonable opportunity to respond by providing evidence and submissions as to why the inference should not be drawn.

    1.2 Further, and in the alternative, the Second Respondent made a jurisdictional error by failing to make obvious and critical enquiries in relation to the matter described in Ground 1.1.

    Particulars

    a)   Despite identifying the potential support by the Spouse’s three brothers as being relevant to a key issue it was considering, the Second Respondent failed to conduct any enquiry into:

    i.The capacity, willingness or availability of the brothers to provide an appropriate level of emotional support in the circumstances at the time of the application; and

    ii.Whether, in any event, such support as the brothers may have been able to provide could adequately supplant the support provided by a spouse.

    Ground 2

    The Second Respondent made a jurisdictional error by failing to take into account a submission of substance, namely the fact that, at the time of the original application, the Applicant’s Spouse and her three children were financially dependent on the Applicant.

    Particulars:

    a)   In the context of an assessment of “compelling reasons,” the First Respondent’s policy directs attention to hardships which may result from an Applicant being required to leave Australia

    b)   Evidence before the Second Respondent indicated that the Applicant’s Spouse and her children were financially dependent on the Applicant at the time of the application, and that a separation of the family would have caused these dependants financial hardship

    c)    In the circumstances of this case, the risk of this financial hardship was a matter of significance.

    d)    The Second Respondent failed to evaluate the evidence and submissions on this issue.

    Ground 3

    The Second Respondent made a jurisdictional error by taking into account an irrelevant consideration, namely the Applicant’s prior residence in Australia without a valid visa.

    Particulars

    a)    Neither the Act nor the Regulations required or authorised the Second Respondent to take the Applicant’s prior unlawful status into consideration for the purposes of here were compelling reasons to waive the Schedule 3 criteria at the time of the application.

11. In relation to ground 1, I note the transcript was tendered and that at the commencement of the hearing the Tribunal relevantly said:

    Now compelling reasons are not defined in law so what the Court have decided is that it has to be something exceptional, forceful, that would compel the Tribunal to set aside the requirement.  Not wanting to be separated is not a compelling reason.  Most couples don’t want to be separated but they have to endure a period of separation if necessary.

12. The Tribunal then sought to explore the longevity of the relationship between the applicant and his new wife, and raised with the applicant that he had remained unlawfully in Australia for six years and worked illegally in order to pay for his ex-wife’s cancer treatment, to which he said, “Yes.”  The applicant maintained that was the reason why he did not go back to Lebanon so he could earn enough to pay for this ex-wife’s cancer treatment.

13. The original application identified that his ex-wife died in November 2008.  The applicant suggested that she had passed away in 2009 in answer to questions by the Tribunal.  In either case, passing away of the applicant’s ex-wife does not explain the continued unlawful presence of the applicant in Australia and failure to take any steps to regularise his migration status or explain the continued unlawful working in Australia.  The applicant suggested that there was a further reason he did not go back, after his wife had passed away, because he was too embarrassed to go back to Lebanon, and he then said that his mother had passed away. 

14. The Tribunal explored with the applicant the age of the teenage children of his new wife and also raised the support that she might be receiving from her ex-husband.  The applicant said:

    I found it too sorrowful for me to go back to Lebanon where there are painful memories. And I was too embarrassed to face people who would think that when your wife was struggling with cancer you didn't come, now you are coming.

15. The Tribunal heard from the applicant’s new wife as to when they met and raised with the applicant’s wife that she knew when she married him that he was not lawfully in Australia and she said:

    I knew he didn’t have a visa to stay but I knew that he has hired an agent to correct his status.

16. In relation to looking after the teenage children, the applicant’s wife said:

    No one can look after them.  I am looking after them in every respect. 

17. In the context of the circumstances that the Tribunal is required to consider, the Tribunal drew attention to the criteria whereby the Tribunal could only look at circumstances that existed at the time of the application. In that context the Tribunal asked a question as to the applicant’s wife having three brothers in Australia.  The Tribunal went further and asked, “Do you see them as well,” to which the answer was yes.  The Tribunal then sought to explore whether the applicant’s new wife’s ex-husband provided child support to which applicant’s spouse responded:

    I didn’t want any headache with him because every time I try to claim child support from him he starts complaining.  My husband is helping me with payments for the kids and I don't want any problems with him. 

18. The delegate’s decision of 15 April 2014 in dealing with the issue of compelling reasons said an opportunity was given to the applicant to submit the information regarding compelling factors and that no response was provided. It was in those circumstances that the delegate found that there were no compelling reasons to waive the Schedule 3 requirements.

19. Counsel for the applicant sought to argue that the reference to three brothers was a new issue of the kind identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 which required the Tribunal to identify the same as a live issue. In the context of the present case, where the real issue was compelling circumstances, it was obvious that there was a time issue as to emotional and financial support and that the question relating to three brothers was a matter going to the emotional and/or financial support that the applicant’s spouse and their children family in Australia might receive from the three brothers. This is not a case of a kind falling within SZBEL.  Ground 1 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.

20. Further, this is not a case where there was any obligation upon the Tribunal to engage in the making of further inquiries of the applicant or the applicant’s spouse about the extent and level of the relationship and support from the spouse’s brothers.  It was a matter for the applicant to make out that there were compelling circumstances in the administrative inquiry.  Ground 1 fails to identify any jurisdictional error. 

21. In relation to ground 2, it is clear that the Tribunal identified the age of the teenage children of the applicant’s new spouse and referred to the letter dated 7 April 2014, asserting that the applicant’s children in Lebanon continue to be dependent on him, that he has been supporting them since he has arrived in Australia, that he is a father figure to his stepchildren and that he and his spouse had purchased a truck and car together and signed an agreement to buy a business together. The letter also asserted that separation would cause alleged harm to the applicant’s sponsor and stepchildren.  The letter further identified that the applicant supports his wife financially and she is no longer reliant on Centrelink payments.  There was also submitted with the letter a bank statement and there was a tenancy agreement and certain bank statements.

22. The Tribunal identified that it did not have regard to the applicant’s current financial commitments to his business or house purchase, as he entered into these commitments sometime after he lodged his application.  The Tribunal did address the financial support and the emotional support that the applicant had provided to his spouse.  There is no substance in relation to ground 2. Ground 2 is, in essence, an impermissible challenge to the adverse findings of fact as to the absence of compelling reasons.  There was no submission of substance that the Tribunal failed to take into account.  Ground 2 fails to make out any jurisdictional error.

23. In relation to ground 3, the Migration Act 1958 in ss.13 and 14 identifies persons described as lawful non-citizens and unlawful non-citizens. The applicant’s contention that the Tribunal is not entitled to take into account that statutory distinction in the determination of whether there were compelling circumstances does not sit with the scheme of the Act or the object of the Act as identified in s.4. To the extent that the applicant’s submission was founded on the premise that only those who were unlawful citizens could be the subject of consideration of whether there are compelling reasons for them applying the criteria, that assumption was wrong. The requirement in terms of determining whether there are compelling reasons for not applying the criteria arises in the context of a person not holding a substantive visa.

24. The fact is that the applicant in this case admitted to the Tribunal unlawfully working in Australia during the six year period which he was an unlawful non-citizen. That substantial period was clearly a matter relevant to the evaluation by the Tribunal of whether there were compelling reasons.  The duration of that unlawful non-citizen position for the applicant as well as his working during that period cannot be said to be irrelevant factors in a Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 sense in the determination of whether there are compelling reasons for not applying the criteria. Ground 3 fails to make out any jurisdictional error.

25. I should note that if a jurisdictional error had been made out in relation to ground 3, a question of discretion to grant relief would have arisen in the present case.  The grant of a Constitutional writ may in some cases involve consideration of whether there is disentitling conduct by the applicant in respect of the subject matter for relief.  In the present case, the unlawful non-citizen status of the applicant over six years and the applicant working during that period may well have been disentitling conduct in respect of alleged jurisdictional error raised by ground 3.  It is not necessary for this Court to determine that question in the present case.  The amended application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015