Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 835

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).

1. Before the Court is an Application filed on 8 September 2020, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 12 August 2020. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

1. The applicant is a citizen of Egypt.
2. On 20 March 2012, the applicant arrived in Australia on a visitor visa.
3. On 1 May 2012, the applicant married Ms Clementine Lindsey (Ms Lindsey), who is an Australian citizen by birth.
4. On 20 June 2012, the applicant applied for a combined Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Resident) (Class BS) (subclass 801) visa on the grounds of being in a spousal relationship with Ms Lindsey. Ms Lindsey (Sponsor) lodged a sponsorship in support of the applicant's Visa application. In making the Visa application, the applicant and Sponsor were assisted by a migration agent.
5. On 10 October 2012, the applicant's migration agent wrote to the Department of Immigration and Citizenship (Department) informing the Department that the applicant's relationship with the Sponsor had ended. On the same day, the applicant's migration agent ended her appointment as representative for the applicant.
6. On 17 October 2012, the Sponsor formally withdrew her sponsorship of the applicant's Visa.
7. On 29 October 2012 and 19 December 2013, a delegate from the Department invited the applicant to comment on information it had received that the relationship with the Sponsor was no longer continuing. The letters informed the applicant that there were circumstances in which the applicant may continue to be considered for permanent residence on spouse grounds, despite the fact that the relationship with the Sponsor had ended.
8. In response to the Department's request, the applicant claimed that he had "suffered domestic violence" from the Sponsor and provided the Department with supporting documents including an intervention order dated 19 October 2012 listing the applicant as the affected family member and the Sponsor as the respondent and an undertaking provided by the Sponsor.
9. On 8 January 2014, the applicant appointed a new migration agent, Vrachnas Lawyers.
10. On 20 January 2014, Vrachnas Lawyers emailed the Department providing further submissions and supporting documentation, including a statutory declaration of the applicant outlining the history of his relationship with the Sponsor. It was submitted that the applicant satisfied the requirements of the Visa as, at the time of the decision, he would continue to meet the requirements of cl 820.211(2) of sch 2 of the Migration Regulations 1994 (Cth) as he fell within the exception provided by cl 820.221(3)(b)(i)(A) being that he had suffered domestic violence by the Sponsor.
11. On 6 April and 9 April 2014, the applicant provided two separate statutory declarations from supporting witnesses.
12. On 30 July 2014, the Delegate refused to grant the applicant the Visa (Delegate's Decision). The Delegate found that the applicant did not meet the definition of spouse under s 5F of the Act and therefore was not satisfied that he met cl 800.211(2)(a) of sch 2 of the Regulations.
13. On 30 July 2014, the applicant applied to the Tribunal for review of the Delegate's Decision. On 22 September 2015, the Tribunal affirmed the Delegate's Decision not to grant the applicant the Visa (First Tribunal Decision).
14. On 28 October 2015, the applicant applied to this Court for judicial review of the First Tribunal Decision (First Application).
15. On 15 August 2017, the First Application was allowed by consent and remitted to the Tribunal.
16. On 24 January 2019, the applicant was invited to attend a hearing before the Tribunal on 21 February 2019.
17. On 14 February 2019, the applicant emailed the Tribunal attaching a further statutory declaration of the applicant dated 12 February 2019 and a letter from his treating psychologist dated 5 February 2019.
18. On 21 February 2019, the applicant attended a hearing before the Tribunal with the assistance of an interpreter in the Arabic and English languages. During the hearing the Tribunal identified that the applicant had not been provided with a copy of all the certificates which were the subject of the remittal from the Court and therefore adjourned the hearing to allow the applicant the opportunity to consider the certificates and make any submission.
19. On 5 March 2019, the applicant emailed the Tribunal acknowledging receipt of a s 376 certificate and provided further evidence in support of his application for review, including a document the applicant alleged was from an Egyptian authority and proved he had never been married previously, a statutory declaration from the applicant's brother which was undated and a Divorce Order made on 27 September 2016.
20. The hearing before the Tribunal resumed on 22 October 2019 and was subsequently adjourned part-heard to 31 July 2020.
21. On 30 July 2020, the applicant emailed the Tribunal providing further material in support of his application for review, including email correspondence between the Sponsor, the applicant, a migration agent and the applicant's brother.
22. At the resumed hearings before the Tribunal on 22 October 2019 and 31 July 2020, the Tribunal put to the applicant a number of s 375 certificates and a s 356 certificate it had received.
23. On 12 August 2020, the Tribunal affirmed the Delegate's Decision not to grant the applicant the Visa.

1. The Tribunal issued its statement of decision and reasons on 12 August 2020 (Tribunal Decision).
2. At paragraph [15] of the Tribunal Decision, the Tribunal noted that the applicant provided oral evidence at the hearing confirming that the relationship with the Sponsor had not resumed and that he had since married another woman living in Spain with whom he was expecting a child. The applicant informed the Tribunal that he was seeking a Schengen visa to visit her and the child.
3. At paragraphs [20] - [26] of the Tribunal Decision, the Tribunal examined each of the non-disclosure certificates to ensure the applicant was on notice of the information contained in each and what this might mean for his case:

(1) At paragraph [22], the Tribunal made note of the first non-disclosure certificate issued under s 375A of the Act pertaining to folios 100 - 106 of the Department file. The Tribunal found that the certificate was not valid as it did not exhibit the required detail, noting that it was not dated or signed, nor did it contain the name of the issuing officer. The Tribunal did not place any adverse weight on the evidence covered by the certificate given its invalidity but noted that it contained assertions that the applicant had been previously married in Egypt, that the couple had separated five months prior and that the applicant's intention was to obtain a visa. The applicant denied having ever been previously married in Egypt and provided supporting documentation to support this assertion. The Tribunal accepted that the applicant had not been previously married in Egypt on the basis that there was no evidence to the contrary and found that it could not fairly rely on the certificate.

(2) At paragraph [23], the Tribunal made note of the second certificate which was purportedly issued under s 375 of the Act (a section which does not exist). The Tribunal found that the certificate was invalid and confirmed that it had no effect on the applicant's case.

(3) At paragraph [24], the Tribunal made note of the third non-disclosure certificate which was issued under s 376 of the Act and pertains to folios 100 - 106 of the Department file. The Tribunal found that the certificate was not valid as it was not dated or signed. In addition, the Tribunal noted that the information contained in it was related to the information contained in the second certificate which was also found to be invalid. As such the Tribunal did not place any adverse weight on any of the information contained in the certificate.

(4) At paragraph [25], the Tribunal made note of the fourth non-disclosure certificate which was issued under s 375A of the Act and pertains to folio 33 of the Department file. The Tribunal found that the certificate was not valid as it was not signed.

(5) At paragraph [26], the Tribunal made note of the fifth non-disclosure certificate which was issued under s 376 of the Act. The Tribunal found that the certificate was not valid as it was not fit for purpose. The Tribunal noted that although the certificate is signed, dated and named the relevant delegate, the reason given for the application of the certificate by the issuer was that the information contained in it was given "in confidence", in circumstances where there were no notations to indicate as such. In addition, the Tribunal flagged that the applicant had already provided evidence that was not inconsistent with such information and that the information contained within folio 66 had already been discussed. Accordingly, the Tribunal did not place any adverse weight on any of the information contained within the certificate (together, the non-disclosure certificates).

1. At paragraphs [28] - [67] of the Tribunal Decision, the Tribunal considered whether the applicant and Sponsor were in a spousal relationship based on the applicant's claims and relevant evidence pursuant to cl 820.211(2)(a) of the Regulations, s 5F(2)(a)-(d) of the Act and reg 1.15A(3) of the Regulations. Relevantly, the Tribunal made the following findings:

(1) at paragraphs [29] - [31], the Tribunal accepted that the applicant was validly married to the Sponsor for the purposes of the Act as required by s 5F(2)(a);

(2) at paragraphs [32] - [41], the Tribunal accepted that the applicant and the Sponsor had no joint liabilities, major shared assets or real estate together and did not pool money, subsequently finding that those circumstances do not support the applicant's claim that he was in a married relationship with the Sponsor as defined under the Act;

(3) at paragraph [42], the Tribunal accepted that there were no legal obligations between the applicant and the Sponsor with the exception of the marriage;

(4) at paragraphs [43] - [46], the Tribunal accepted that the applicant shared in some of the day-to-day household expenses but that such shared responsibility was limited and of an ad-hoc nature. It was further confirmed by the applicant that he did not have any joint responsibility for the Sponsor's child and the Tribunal accepted that evidence. The Tribunal noted that although the Sponsor's child is not his biological child, the lack of joint responsibility despite living together and being married did not support the applicant's claim that he was in a married relationship with the Sponsor as defined by the Act, nor did the limited sharing of household expenses;

(5) at paragraphs [47] - [50], the Tribunal accepted that the applicant and the Sponsor lived together for at least five months and that this ceased as a result of family violence claims, subsequently finding that this supported the applicant being in a married relationship with the Sponsor as defined by the Act. The Tribunal also noted that the applicant and the Sponsor shared in housework but found that the evidence was limited and thereby provided limited support to the applicant's claim;

(6) at paragraphs [51] - [57], the Tribunal found that it was not clear as to whether the applicant and the Sponsor had represented themselves to other people as being married as was claimed and the evidence the applicant gave as to their mutual friends and acquaintances was "vague" and scarce. Further, the Tribunal accepted, at face value, that the applicant and the Sponsor had planned to undertake some interstate and international travel, however this did not eventuate consequent on the relationship ending approximately five months after it began. None of this evidence was found to support the applicant's claim that he was in a married relationship with the Sponsor as defined by the Act; and

(7) at paragraphs [58] - [67], the Tribunal assessed the applicant's evidence in relation to the nature of the commitment between the applicant and the Sponsor, finding some irregularity with respect to his written and oral evidence, particularly in relation to the family violence alleged by both parties and the depth of the emotional support and companionship shared between them. The Tribunal found many aspects to be incongruent and that ultimately the commitment between them was intermittent, and potentially transient, in turn, such evidence did not support the claim that the applicant was in a married relationship with the Sponsor as defined by the Act.

1. At paragraph [68] of the Tribunal Decision, the Tribunal noted the adverse information the Department had received from the Sponsor which included that he perpetrated physical violence, did not act like a married man, was focussed on obtaining a visa and failed to conduct a honeymoon or reception. The Tribunal confirmed that it put these allegations to the applicant at the hearing in accordance with s 359AA of the Act. The applicant provided the following in response to allegations from the Sponsor:

(1) it was the Sponsor who insisted he arrange an agent to assist in processing the Visa application;

(2) the Sponsor never complained to the social worker who visited the Sponsor and the applicant on a weekly basis about the allegations;

(3) the Sponsor had asked him to come home but he was prevented from doing so as a result of an intervention order;

(4) the Sponsor revoked the intervention order, indicating that he was a "good husband"; and

(5) the intervention order he lodged against the Sponsor was the truth and implemented as a result of the Sponsor holding a knife at him and swearing.

1. At paragraphs [73] - [76] of the Tribunal Decision, the Tribunal found, considering the evidence both independently and cumulatively, that there was no "persuasive evidence that the applicants are committed to each other as a married couple". As a result the Tribunal determined that it could not be satisfied that the applicant was the spouse of the Sponsor for the purposes of s 5F(2) of the Act, nor could it be satisfied that the applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of the Visa application.
2. Accordingly, the Tribunal was not satisfied that the applicant met the criteria in s 5F(2) and cl 820.211(2)(a) and thereby affirmed the decision of the Delegate for a second time.

1. The applicant applied for judicial review of the Tribunal Decision on 8 September 2020. The Application contained the following grounds for judicial review (without amendment):
   1. The Authority fell into jurisdictional error in that it failed to consider a relevant consideration or failed to take relevant information or material into account.

Particulars

(a) The Authority failed to have regard to information before it in that it failed to consider all the integers of the applicant's spousal relationship. The Authority's assessment at paragraphs 53 - 55 of the decision record found the applicant's evidence in this regard to the social aspects of the relationship to not be credible:

53. The Tribunal finds the applicant's evidence in this regard to be vague and so broad so as to be difficult to verify, particularly where the applicant has not provided corroborating evidence which support his claims. It is apparent the sponsor's mother, and a small number of other friends, knew of the parties relationship, though outside this small number, it is not clear to the Tribunal that the applicant and the sponsor actually represented themselves to other people as being married to each other as claimed. It follows, that the Tribunal finds these circumstances do not support the applicant's claim he is in a married relationship as defined under the Act.

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

54. The applicant told the Tribunal he and the sponsor has a neighbour who visited them twice and they visited him once. The applicant also said he knew an "Egyptian guy", Amjad, who tried to help with their relationship issues.

55. The applicant had provided only vague and minimal evidence in respect to the opinion of the parties' friends and acquaintances about the nature of their relationship. It follows that other than the scant oral evidence outlined above, the extent of any opinion of friends and acquaintances (as provided by the applicant in evidence) does not support the applicant's claim he is in a married relationship as defined under the Act.

(Decision [53-55], emphasis added)

In reaching this finding the Authority has failed to consider information provided by the applicant in his Partner visa application, namely, the two statutory declarations filed with that application. The Authority has reached a finding that the the applicant has not provided corroborating evidence which supports his claims, clearly disregarding the statutory declarations submitted with the application. In particular, the Authority has failed to consider the statutory declaration of Mr. Richard Cairns, the then couple's housing support worker, who declared the applicant and sponsor were a couple and he assisted them to relocated to long term housing.

The consideration of this aspect of the applicant's claim was squarely raised by the material before the Authority. The Authority fell into jurisdictional error by failing to take this relevant information into account.

1. The applicant also filed an affidavit annexing a copy of the Tribunal Decision on 8 September 2020.
2. The Minister filed a Response on 22 September 2020. The Response sought orders that the application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error.
3. The Minister also filed written submissions on 9 April 2025.

1. The hearing took place on 25 April 2025.
2. The applicant appeared in person at the hearing and was assisted by an interpreter in the Arabic and English languages.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. As already set out, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. By Ground 1 the applicant submits that the Authority failed to have regard to information before it, in that it failed to consider all the integers of the applicant's spousal relationship, specifically a statutory declaration of Mr Richard Cairns (Mr Cairns) and a statutory declaration of Mr Charles O'Neal (Mr O'Neal) (collectively, Statutory Declarations).
2. Mr Cairns was the Sponsor's housing support worker for the period October 2011 until August 2012. His statutory declaration relevantly provides as follows:

...

1. State how you know the applicant and the applicant's partner or fiancé(e) and indicate how often you have been in contact with them

I have maintained weekly contact with Clementine Lindsey from 10/10/11 until 2/8/12. I am a housing support worker with Hanover Cheltenham and was providing support to Clementine Lindsey and her family. I have no current involvement with the family.

1. State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief

My capacity as a housing support worker included meeting with Clementine and Khaled as a couple. Upon being advised by Clementine that she married Khaled, Clementine showed me wedding photos and their marriage certificate. I am able to confirm that Khaled was residing with Clementine until my support closed 2/8/12. The couple were re-located into long term housing via the Office of Housing in Cheltenham.

5. State any other matters you wish to add in support of the visa application

I do state that Clementine and Khaled did reside together as husband and wife.

1. Mr O'Neal was a neighbour to the applicant and the Sponsor from March 2012 until June 2012. His statutory declaration relevantly provides as follows:

...

1. State how you know the applicant and the applicant's partner or fiancé(e) and indicate how often you have been in contact with them

I, Charles O'Neal live at XX K Road and was a neighbour to Khaled Ali and Clementine Lindsey her mother Margaret and her daughter Emily. They lived in the neighbourhood from March to June 2012. We spoke on the street and they even visited my house for tea 3 or 4 times. Khaled and Clementine said they married in May and appeared to

1. State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief

to be affectionate with each other. They appeared as a happily married couple that enjoyed each other's company. I observed Emily call Khaled "Dad" and he treated her as such. Margaret spoke to Khaled as a member of the family. When I knew them I believed they would stay together as a family. Yes I believe the relationship was genuine for the above reasons.

1. At paragraph [51] - [53] the Tribunal considered the social aspects of the relationship, specifically "whether the persons represent themselves to other people as being married to each other" and said:

The applicant said that when he came here [Australia] he had no friends or relatives or anything. The applicant said that his sponsor did not have a big family and he only met her aunty a couple of times in the city as she lived far away. The applicant told the Tribunal that nobody from his family met his wife, but that she spoke to his mother and father (and two brothers) over the internet, although his parents don't speak English, so relied on one of his brothers to translate.

The Tribunal finds the applicant's evidence in this regard to be vague and so broad so as to be difficult to verify, particularly where the applicant has not provided corroborating evidence which support his claims. It is apparent the sponsor's mother, and a small number of other friends, knew of the parties relationship, though outside this small number, it is not clear to the Tribunal that the applicant and sponsor actually represented themselves to other people as being married to each other as claimed. It follows, that the Tribunal finds these circumstances do not support the applicant's claim he is in a married relationship as defined under the Act.

1. I accept that the Tribunal does not expressly refer to the Statutory Declarations. However, for the following reasons, I reject the submission that the Tribunal erred because it failed to have regard to the Statutory Declarations.
2. Firstly, at paragraph [33] of its decision the Tribunal expressly states that it "had regard to all of the evidence given and on the Department of Immigration and Tribunal files".
3. Secondly, I accept the Minister's submission that it is not apparent that the Tribunal failed to consider the Statutory Declarations. As set out above, at paragraph [53] the Tribunal found that the Sponsor's mother and "a small number of other friends knew of the parties relationship". The only relevant evidence before the Tribunal (other than that of the applicant) upon which a small number of friends could be said to know of the parties relationship, is that contained in the Statutory Declarations. In his written submission, the applicant places emphasis on the statement by the Tribunal in paragraph [53] that it "finds the applicant's evidence in this regard to be vague and so broad so as to be difficult to verify, particularly where the applicant has not provided corroborating evidence which supports his claims." However, this must be read in context of the decision as a whole and, in particular, in the context of the preceding paragraph. I consider that "this regard" is a reference to the applicant's evidence regarding his family and that it is to this evidence that this comment is directed. Accordingly, I do not consider that this statement is to the effect asserted by the applicant.
4. Thirdly, even if I be wrong and the Tribunal did fail to consider the Statutory Declarations, I do not consider that any such error is material. The Statutory Declarations could not realistically have altered the Tribunal's finding that "a small number" of people knew of the parties relationship: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14]. Further, the balance of the Tribunal's findings predominantly did not support that the parties were in a married relationship as defined under s 5F(2) of the Act. Finally, for completeness, I note that at paragraph [48] the Tribunal accepts that the applicant and the Sponsor lived together for around five or six months, consistent with the evidence of Mr Cairns.
5. Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal's behalf.

1. At the hearing the applicant submitted that the Tribunal also erred in failing to have regard to evidence he provided, including formal documentation from Egypt, which demonstrated that he had not been previously married in Egypt. This submission must be rejected.
2. At paragraph [22] of its decision the Tribunal said:

...The applicant denied having been married previously in Egypt, and cited evidence he has submitted since the Tribunals last hearing, including a Ministry of Interior document from Egypt (at folios 50-52) which the applicant claims is further evidence that he has never been married before in Egypt. At face value, and in the absence of evidence to the contrary, the Tribunal accepts the applicant's evidence in this regard.

1. Accordingly, not only did the Tribunal have regard to the documentation from the Egyptian Ministry of Interior, it accepted that the applicant had not previously been married in Egypt.
2. Accordingly, no jurisdictional error is disclosed on the Tribunal's behalf on this basis.

1. For the reasons set out above, the Application must be dismissed.
2. The Minister seeks that the applicant pay its costs in the fixed amount of $6,500. I note that this is below the amount provided for in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
3. The Minister also seeks that the name of the first respondent be amended to "Minister for Immigration and Multicultural Affairs" and the name of the second respondent be amended to "Administrative Review Tribunal". I shall order accordingly.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.