Awwad v Minister for Home Affairs

The Application for an Extension of Time 7 The application for an extension of time was filed on 4 April 2019. The proposed notice of appeal which is attached to the application for an extension of time includes the following ground: Jurisdictional Error - The Honourable Federal Circuit Court failed to properly consider the Appellant's contentions, failing to adhere to statutory requirements thereby failing to exercise its jurisdiction and consequently committing a jurisdictional error. 8 The application for an extension of time and the draft notice of appeal each include a certificate signed by the then solicitor for the applicant, Mr Leonard Jacob, dated 3 April 2019, pursuant to s 486I of the Migration Act 1958 (Cth) ("the Act"). 9 The factors usually taken into account when considering whether or not to grant an extension of time were enumerated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 where his Honour was considering an application for an extension of time within which to make an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In particular, his Honour identified the following principles which should guide the exercise of the discretion when a court is determining whether or not to grant an extension of time: (a) special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do; (b) the prescribed period is not to be ignored; (c) the prima facie rule is that proceedings commenced outside the prescribed period will not be entertained; (d) the applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; (e) the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; (f) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and (g) fairness between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion. 10 In the present case, having taken these matters into account, I would have granted the applicant the extension of time he seeks but for the fact that his proposed appeal has no prospects of success. 11 It is common ground that, when determining whether an extension of time should be granted, the merits of the applicant's proposed appeal are to be assessed at an impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]-[70] per Mortimer J and SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 at [25]-[26] per Collier, Wigney and Gleeson JJ. It is not appropriate on the hearing of such an application to embark on what amounts to a full hearing of the proposed appeal. That a proposed appeal lacks reasonable prospects of success (and that the application for an extension of time should be refused on that basis) may be readily apparent or it may require some close analysis. But such an analysis is not undertaken for the purpose of determining whether what is properly characterised as a reasonably arguable appeal is unlikely to succeed.

The Tribunal Hearing 12 On 7 November 2016 a letter inviting the applicant to attend a hearing before the Tribunal was forwarded to the applicant's migration agent. The attachments to the letter extending that invitation included what was referred to as "Information Sheet MR18" ("the information sheet"). A copy of the information sheet was tendered in evidence during the course of the present application but was not in evidence before the primary judge. 13 The information sheet includes the following statement: Is the hearing recorded? All hearings are audio recorded. You may ask us for a copy of the recording at the end of the hearing. 14 The applicant attended the hearing before the Tribunal on 8 December 2016. There is no evidence the applicant asked for a copy of the recording at the end of the hearing. 15 The Tribunal's reasons indicate that the applicant gave evidence and presented arguments at the Tribunal and that it also received oral evidence from Ms Shardi Moukbel and Mrs Tayba Awad. The hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. 16 It appears that the proceeding before the Tribunal was not electronically recorded due to a technical problem with the relevant equipment. The absence of such a recording has given rise to a new proposed ground of appeal. 17 There is no evidence from the applicant as to what occurred at the Tribunal hearing. The only evidence as to what evidence was received by the Tribunal is found in the Tribunal's reasons and the documentary record that was also in evidence before the primary judge.

The tribunal's decision 18 The Tribunal identified the relevant issue as whether the applicant was the spouse of Ms Nassouh as that term is defined in s 5F of the Act. Section 5F relevantly provides: (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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. 19 In its reasons the Tribunal noted the definition of "spouse" in s 5F of the Act and the effect of the relevant regulation which it attached to its decision. The Tribunal said at [20]-[21]: [20] 'Spouse' is defined in s.5F of the Act it provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). [21] In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. 20 The Tribunal noted that s 5F requires persons in a married relationship to be married to each other in a marriage that is valid for the purposes of the Act, and that there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing and the couple must live together, and not live separately and apart on a permanent basis. 21 The Tribunal found that the applicant and his sponsor were married to each other in a marriage that was valid for the purposes of s 5F(2)(a). 22 The Tribunal noted that in forming an opinion in relation to the other matters, regard must be had to the circumstances of the relationship including evidence of the financial and social aspects of the relationship and the nature of the parties' household, and their commitment to each other as set out in reg 1.15A(3) of the Regulations. 23 The Tribunal noted that it considered all the evidence before it and proceeded to make findings of fact. It identified the documentary evidence. It also referred to the evidence given by the applicant at the hearing. 24 During the course of the hearing the Tribunal put to the applicant that the sponsor had written to the Department on 23 June 2015 advising that she was withdrawing her sponsorship, that she was filing for a divorce from the applicant, that she believed that the applicant was using her for the visa, and that the applicant would do anything to remain in Australia. 25 The applicant denied the correctness of that information and gave an explanation as to why Ms Nassouh had made such statements. The other witnesses who gave evidence for the applicant suggested that Ms Nassouh had mistreated the applicant and was seeking to ruin his life. 26 In the course of its reasons the Tribunal noted that it had been provided with information by the sponsor that the applicant and the sponsor separated on 21 June 2015. The Tribunal noted that there was no other statement from the sponsor about her commitment to their relationship or how she viewed their future together. 27 The Tribunal considered documentary evidence which included bank statements, payroll records, photographs, a tenancy application form and a subsequent tenancy agreement. It also considered photographic evidence, third party statements, as well as the applicant's evidence. 28 The Tribunal found at [30]-[33]: [30] The Tribunal accepts the evidence that the applicant and the sponsor married. It accepts that the parties lived together for a time and shared some social interaction. However, having considered the evidence, individually and as a whole, the Tribunal is not satisfied that the applicant and the sponsor were in a spousal relationship. One month after the parties married the parties became fragmented. Three months after the parties married the partner visa application was lodged. Approximately seven months after the parties' marriage the parties separated. There is no corroborative evidence about how the parties shared financial matters. The bank statements that have been provided are in the applicant's name and do not give any insight into the parties financial affairs. Although the applicant stated that he supported the sponsor as she was medically unfit to work. No independent evidence has been provided to support this claim. The applicant stated that he paid for rent and expenses and the sponsor deposited her salary and government payment into her own account, which he had never seen. However at the time of application the parties lived with either the sponsor's family or with the sponsor's aunt-in-law. At these places and on the evidence the parties did not pay rent. Based on the evidence before it, the Tribunal finds that the parties had not combined their financial resources at the time of application. [31] While it is accepted that the parties attended some social events together. Third party statements provide general information about the parties. Although they state that the parties' relationship was genuine and the authors of the statements visited the parties and went out with them, they do not provide any insight about how the parties developed their relationship and how they shared their lives together and supported each other. While the applicants mother provided information to the Tribunal about a phone call from the sponsor and the other witness gave details of her observations. There are no statements from other family members about the how the parties supported each other as spouses. Based on the evidence before it, the Tribunal finds that the recognition of the parties' relationship overseas and in Australia is not one of two people who were in a genuine and continuing spousal relationship. [32] The Tribunal is not satisfied by the evidence that the parties had formed a household which they shared as husband and wife. The applicant stated that the parties shared home duties however the applicant could only complete light work as she was physically unfit. However at the time of application the parties had little responsibility for household matters. Other evidence is the tenancy agreement dated 28 October 2015 where the applicant and the sponsor are listed. The agreement is signed by the applicant and is dated after the time of application and after the time the parties separated. The tenancy agreement dated 17 March 2015 appears to be a personal agreement between the parties and the landlord, and is signed by the applicant and the landlord and again it is dated after the time of application. [33] At the time of application in February 2015 the applicant stated that the parties were beginning to understand each other and were developing a stronger relationship and their relationship was a committed and genuine relationship. At the Tribunal hearing, the applicant stated that in December 2014, one month after their marriage in November 2014 the parties' relationship became problematic. Other claims are that the sponsor suffered two miscarriages. The discharge referral dated 10 February 2015 for the sponsor refers to an abdominal condition. No other independent evidence has been provided to substantiate this claim. On the police report dated 22 June 2015 it is stated that the parties were "currently going through the process of getting a divorce." Other information provided by the sponsor is that the parties separated on 21 June 2015 because she realised that the applicant was using her "for the visa". There is no statement from the sponsor about her commitment to the relationship or how she viewed the parties' future together. There is little evidence to support that the sponsor was committed to a shared life with the applicant or how the parties offered each other companionship and support. While there is evidence that the applicant supported the sponsor including through hospital visits, this sense of support does not appear to have been reciprocated to the applicant from the sponsor. This evidence, when combined with the lack of any serious plans for the parties' future together as husband and wife, led the Tribunal not to be satisfied that the parties shared a spousal relationship. There is little evidence about how the parties shared their lives together, cared for each other, offered each other emotional support or were committed to each other and their relationship when the application was made. Based on the evidence before it, the Tribunal finds that at the time of application the parties did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal finds that the parties were not spouses as defined by s.5F at the time of the visa application[.] 29 The Tribunal went on to conclude that, on the evidence, it was not satisfied that a spousal relationship ever existed between the applicant and the sponsor and that, accordingly, the applicant could not satisfy cl 820.211(2). The Tribunal also noted that there was no evidence that the applicant satisfied any of the alternative criteria in subclause 820.211(3), subclause 820.211(4), subclause 820.211(5), subclause 820.211(6), subclause 820.211(7), and subclause 820.211(8) or subclause 820.211(9) of Schedule 2 of the Regulations.

The hearing before the primary judge 30 Mr Jacob appeared for the applicant at the hearing of the applicant's application for judicial review. Her Honour's reasons for decision record what occurred at that hearing. 31 At the commencement of the hearing Mr Jacob informed the primary judge that he wished to obtain an adjournment of the hearing as he had not seen any transcript of the hearing before the Tribunal and the only copy of a recording of the hearing in his possession was about five minutes long. He also informed her Honour that documents in the Court Book indicated that the hearing occupied three hours and 30 minutes. Mr Jacob applied for an adjournment in order to allow enquiries to be made about the balance of the recording and to obtain a transcript. According to her Honour's reasons, she explored with Mr Jacob what issue the absence of a transcript was said to go to and he said, in her Honour's words, "… that it related to adverse credibility findings in respect of the applicant". 32 Her Honour declined to grant the applicant an adjournment and then invited Mr Jacob to address the Court in support of the applicant's application. According to her Honour's reasons, Mr Jacob replied that he had "nothing further to say". 33 There does not appear to be any dispute as to the accuracy of her Honour's account of what occurred during the course of the hearing. 34 In the course of her reasons the primary judge considered the two grounds of review set out in the application for judicial review which were as follows: 1. The Second Respondent ignored or misconstrued relevant evidence in finding the Applicant was not in a spousal relationship with the sponsor in that it ignored the following: Particulars (i) The Second Respondent has failed to take into account the relevant material being the marriage certificate as evidence marriage to the sponsor. (ii) The Applicant provided consistent evidence as being in a relationship with the sponsor. (iii) The statements of the witnesses who attended the Tribunal hearing. 2. The Second Respondent failed to consider the Applicant's claim as a victim of family violence. 35 Her Honour rejected each of these grounds.

The proposed appeal 36 At the hearing of the application for an extension of time the applicant was represented by Ms Okereke-Fisher of counsel who prepared detailed written submissions on behalf of the applicant which were developed by her in oral submissions. It appears that she was briefed by Mr Jacob only a day or two before the hearing of the application. Her efforts were frustrated by Mr Jacob's failure to provide her with instructions including to make available an affidavit that was to be made by him but which was left unsworn. I permitted Ms Okereke-Fisher to tender the unsworn affidavit which was received without objection. The affidavit evidence relied on by the applicant consisted of this unsworn affidavit (Ex A) together with an affidavit affirmed by the applicant on 3 April 2019. 37 The grounds of appeal relied upon at the hearing were as follows: Ground 1 - the Tribunal committed a jurisdictional error by ignoring or misconstruing statements of witnesses who attended the Tribunal hearing and this error led the Tribunal to find that the applicant was not in a spousal relationship with the sponsor. Ground 2 - the primary judge erred in failing to find that the applicant had been denied procedural fairness in that the absence of an audio recording of the Tribunal hearing undermined the applicant's ability to substantiate the Tribunal's error and advance his case. Ground 3 - the Tribunal committed a jurisdictional error in failing to have regard to 'all the circumstances of the case' in accordance with reg 1.15A(2) of the Regulations including the matters set out in reg 1.15A(3)(b)(iii). 38 I will now consider the arguments advanced by Ms Okereke-Fisher in relation to each of the three proposed grounds of appeal.

Ground 1 39 It is relevant to look at how this ground was advanced before the primary judge. I previously referred to the grounds of review that were filed in the Federal Circuit Court which alleged that the Tribunal ignored or misconstrued relevant evidence. The particulars provided in relation to that ground of review point to three matters that the Tribunal is said to have ignored or misconstrued. The first was the marriage certificate and the second was the applicant's own evidence as to his relationship with the sponsor. No reliance is placed by Ms Okereke-Fisher on any alleged failure to take into account the marriage certificate or the applicant's own evidence. The third was to statements made by witnesses who attended the Tribunal hearing. As to this matter, the substance of the witnesses' statements is referred to by the Tribunal in its reasons. It was not open to the primary judge to find that the Tribunal either ignored or misconstrued their evidence. 40 The primary judge found at [19]-[20]: [19] The Tribunal had regard to the applicant's claims as expressed by his migration agent. The Tribunal explored those claims with the applicant at a hearing and put to the applicant concerns it had about the applicant's evidence and noted the applicant's responses. [20] The Tribunal identified with specificity the evidence provided by the applicant in support and explained why that evidence was not sufficient to satisfy the Tribunal that the parties were in a genuine spousal relationship. The Tribunal had regard to the applicant's witnesses, namely, his mother who was in Lebanon when the applicant married the sponsor; and, a friend of the sponsor who claimed to have witnessed ill treatment of the applicant by the sponsor. However, the Tribunal found there to be little evidence to support that the sponsor was committed to a shared life with the applicant or how the sponsor and the applicant offered each other companionship and support. 41 It was submitted on behalf of the applicant that the Tribunal's decision record does not support the primary judge's findings in [20] of her Honour's reasons. It was submitted that, other than the citations of the evidence from the applicant's witnesses as noted in [10], [16] and [17] of its reasons, the Tribunal took no steps to consider the evidence or to make findings in relation to the evidence. Contrary to her Honour's findings, so the submission continued, there is no paragraph in the Tribunal's reasons which explains why the evidence from the applicant's witnesses was not sufficient to satisfy the Tribunal that the parties were in a genuine spousal relationship. 42 The Tribunal said in [10], [16] and [17] of its reasons: [10] On 21 July 2015 via his migration agent Mr Awwad claimed to have suffered family violence committed by his sponsor. It was stated that he wished to continue with the visa application based on those claims. In support of those claims he provided an unwitnessed statutory declaration signed by the applicant on 2 July 2015; a police report dated 22 June 2015. The report records an incidence of domestic violence with no offence and a classification of verbal argument; a statutory declaration dated 10 July (no year provided) from Aiman Mahameed of Bridge Street, Granville, Mental health Social Worker who stated that the applicant was interviewed on 7 July 2015; a statutory declaration from Mahmoud Arii Arab, clinical psychologist dated 10 July 2015. … [16] Mrs Awad provided information including, but not limited to, the following: She was in Lebanon on when the applicant married the sponsor. The sponsor called her and told her that she wanted to ruin the applicant's live and wanted to kill him. After the call she was admitted to hospital because she became ill. [17] Ms Moukbel provided information including, but not limited to, the following: She is a friend of the sponsor. She witnessed the way the sponsor treated the applicant. The sponsor threw him out of the house and he had to sleep in his car. The applicant had tried his best but the family interfered too much. The sponsor's mother was the head of the house and the sponsor took her mother's side. The sponsor was in and out of hospital and on one occasion said that she had been diagnosed with cancer. Medical investigations did not result in a diagnosis for the sponsor. 43 As to Ms Awad's evidence, it is apparent from what is said in [16] that she was living in Lebanon at the time the applicant married Ms Nassouh and that she was still there when Ms Nassouh's relationship with the applicant broke down. There is no evidence to suggest that Ms Awad gave any other evidence not taken into account by the Tribunal which might have assisted it in determining whether or not the applicant could satisfy the requirements of cl 820.211(2). 44 As to the evidence of Ms Moukbel, it is apparent from [17] that the Tribunal had regard to the evidence that she gave as to Ms Nassouh's treatment of the applicant. Again, there is no evidence which would suggest that the Tribunal overlooked or misconstrued any relevant evidence given by Ms Moukbel. 45 I do not think there is any substance to the submission that the Tribunal failed to explain why it was not satisfied that the parties were not spouses as defined by s 5F of the Act at the time of the visa application. Of the detailed findings made by the Tribunal on that topic in [30]-[34] it is sufficient to refer to [33] where the Tribunal explains in considerable detail why it was not so satisfied. 46 It was also submitted that there was a constructive failure to exercise jurisdiction by the primary judge apparently on the basis that there was no real engagement by her Honour with the grounds set out in the applicant's application for judicial review. The first matter to note in relation to that submission is that the primary judge was not, as I have explained, given any assistance by Mr Jacob who appeared for the applicant. Nevertheless, her Honour dealt with ground 1 (at [13]-[25]) and ground 2 (at [26]-[28]) of the application in some detail. 47 As to ground 1 of the application, I have already set out those parts of her Honour's reasons where she reviewed the Tribunal's findings and held that they were open to it on the material before it. This is not a case where the primary judge's reasons "merely assert conclusions" or where it is apparent that the Court otherwise failed to engage with grounds raised in the application for judicial review: cf. BZD17 v Minister for Immigration and Border Protection & Anor (2018) 263 FCR 292 at [24]-[26]. 48 As to ground 2 of the application, as the primary judge correctly found, the Tribunal was not bound to make any finding in relation to the domestic violence issue. There is no basis for criticising the Tribunal for not having done so particularly in circumstances where Ms Nassouh did not give evidence. I will say more on this issue when considering ground 3 of the proposed appeal. 49 I do not think the first of the applicant's proposed grounds of appeal has any prospects of success.

Ground 2 50 The first matter to note about ground 2 is that it contends that the primary judge should have found that she had denied the applicant procedural fairness by proceeding with the hearing in the absence of an audio recording of the Tribunal hearing. 51 The fact that there was (for whatever reason) no copy of the audio recording or a transcript of the hearing before the Tribunal available to the applicant or his solicitor at or prior to the hearing of the application for judicial review, could not of itself provide a basis for concluding that the primary judge denied the applicant procedural fairness. 52 However, while Ms Okereke-Fisher's proposed ground of appeal and submission was not expressed in these terms, I have sought to assess the strength of the proposed ground of appeal as if it asserted that the primary judge denied the applicant procedural fairness by refusing his request for an adjournment. 53 For an appeal based on that ground to succeed it would be necessary for the applicant to show that the primary judge's refusal to grant an adjournment, which involved the exercise of a judicial discretion, involved error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-505. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Hayne, Kiefel and Bell JJ said at [75]-[76]: [75] … House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnotes omitted) 54 As I have said, it was not submitted that the primary judge made any error in refusing Mr Jacob's application for an adjournment. Nor does there appear to be any apparent basis for inferring (even if such a submission had been put) that the primary judge's discretion to refuse the adjournment miscarried in any relevant sense.

Ground 3 55 Ms Okereke-Fisher submitted that the Tribunal failed to comply with reg 1.15A(2) in that it failed to have regard to all the circumstances of the applicant's case. She also submitted that the Tribunal failed to consider matters that were made relevant by reg 1.15A(2)(b). These were arguments that were not raised in the applicant's application for judicial review or in any submissions made to the primary judge. Given that these are new matters and, particularly where the applicant was legally represented before the primary judge, I do not think it would be appropriate to permit such matters to be relied upon in any appeal. In any event, the arguments that the applicant now seeks to raise under the rubric of ground 3 have no reasonable prospects of success. 56 In essence, the applicant's argument was that the Tribunal failed to take into account the applicant's claims that his relationship with Ms Nassouh was characterised by a number of difficulties including violence perpetrated by Ms Nassouh, her sickness, and that she fell pregnant many times and miscarried. 57 As to the last matter, the Tribunal deals with it expressly in [33] of its reasons. It also refers to a discharge report in relation to Ms Nassouh which refers to "an abdominal condition" rather than a miscarriage. The Tribunal points out that no other independent evidence was provided to substantiate this aspect of the applicant's claims. The Tribunal referred at [12]-[13] to the applicant's evidence that Ms Nassouh was always sick, that she fell pregnant many times and miscarried, and that her family interfered in their relationship. It also noted the applicant's claim that Ms Nassouh's younger sister attacked him many times. It also referred to the police report dated 22 June 2015 which stated that the parties were getting a divorce. 58 Importantly, the Tribunal states explicitly at [34] of its reasons that it considered the information about the claims of family violence in so far as it related to the parties' relationship but that, because it was not satisfied the parties shared a spousal relationship, it had not gone on to deal with those claims. The Tribunal was not required to make a finding in relation to "domestic violence" in circumstances where it was not otherwise satisfied that the applicant and Ms Nassouh were ever in a spousal relationship.

DISPOSITION 59 In all the circumstances I am not persuaded that the applicant's proposed appeal, as developed by Ms Okereke-Fisher, has any reasonable prospect of success. That was my strong impression at the time of the hearing of the application which has been confirmed by a more detailed review of her written and oral submissions. In the circumstances the application for an extension of time will be dismissed. 60 As to costs, the applicant must pay the first respondent's costs of the application for an extension of time excluding the first respondent's costs of and incidental to the hearing on 14 August 2019 which could not proceed due to Mr Jacob's failure to appear at the hearing scheduled for that date. So far as the costs of that adjournment are concerned, I will grant the first respondent liberty to apply for an order requiring Mr Jacob to pay those costs personally should the first respondent be so advised. 61 Orders accordingly. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.