FEDERAL COURT OF AUSTRALIA Alkhousi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 524 MIGRATION - Decision refusing grant of Partner (Migrant) (Class BC) visa - withdrawal of support by supporting spouse - cessation of relationship between applicant and supporting spouse - meaning of "spouse" under Migration Regulations. Migration Act 1958 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) MOHANAD ALKHOUSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q7 OF 2002 COOPER J BRISBANE 30 APRIL 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q7 OF 2002 BETWEEN: MOHANAD ALKHOUSI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: COOPER J DATE OF ORDER: 30 APRIL 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including reserved costs, if any, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q7 OF 2002 BETWEEN: MOHANAD ALKHOUSI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: COOPER J DATE: 30 APRIL 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant is a national of Syria. On 29 June 1996, he married an Australian citizen in Damascus, Syria. He applied for the grant of a Partner (Migrant) (Class BC) visa under the Migration Act 1958 (Cth) ("the Act") on 10 December 1996. At the same time he applied for a Partner (Provisional) (Class UF) visa to enable him to enter Australia and stay pending determination of his application for the permanent Class BC Visa. The temporary visa was granted to him on 7 June 1997. The applicant first entered Australia on 6 August 1997 but did not take up permanent residence in Australia at that time. 2 The applicant's wife returned to Australia in June 1998. The applicant re-entered Australia on 3 July 1998, subsequent to the death at birth of their child in Mackay, Queensland on 26 June 1998. 3 On 21 June 2000, the delegate of the Minister determined to refuse to grant the Class BC visa to the applicant. The delegate found that the applicant did not at the time of the decision satisfy the prescribed criteria of Sub-class 100 of Schedule 2 to the Migration Regulations 1994 ("the Regulations") relating to a spouse. Those criteria, so far as they are relevant to this application, provide : "100.1 Interpretation 100.111 In this Part: sponsoring spouse, in relation to an applicant, means the person who was specified as the applicant's spouse or intended spouse in the application that resulted in the grant of the Subclass 309 (Spouse (Provisional)) visa referred to in paragraph 100.221 (2)(a), 3(a) or 4(a), as the case requires. 100.2 Primary criteria Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. 100.22 Criteria to be satisfied at time of decision 100.221 (1) The applicant meets the requirements of subclause (2), (3), (4) or (4A). (2) The applicant meets the requirements of this subclause if: (a) the applicant: (i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or (ii) was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant: (A) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (B) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) the applicant is the spouse of the sponsoring spouse; and (c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made. ... (4) The applicant meets the requirements of this subclause if: (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either: (i) continues to be the holder of that visa; or (ii) is no longer the holder of that visa because the visa: (A) was granted before 1 November 1999; and (B) has ceased to be in effect because the applicant: (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) after the applicant first entered Australia as the holder of that visa mentioned in paragraph (a) - either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse; (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation. Note: For special provisions relating to domestic violence, see Division 1.5. (4A) The applicant meets the requirements of this subclause: (a) if the applicant held a Subclass 309 (Spouse (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa; and (b) if the Tribunal: (i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or (ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa. ... 100.226 If at least 2 years have passed since the application was made and the applicant does not meet the requirements of subclause 100.221(3) or (4), the applicant is nominated for the grant of the Subclass 100 visa by the sponsoring spouse." 4 The delegate found that by the time of the decision, the applicant's wife had withdrawn her support of the applicant's application as a sponsoring spouse. The delegate also found that by the time of the decision, 21 June 2000, the applicant was no longer a spouse (as defined by reg 1.15A of the Regulations) of the sponsoring spouse as required by sub-cl 100.221(2)(b). Having regard to the finding that the applicant's wife had withdrawn her support as sponsoring spouse, the delegate found that the applicant, by the time of that decision, did not satisfy the criterion in sub-cl 100.226. 5 Regulation 1.15A of the Regulations provided, so far as is relevant : "1.15A Spouse (1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are : (a) in a married relationship, as described in subregulation (1A); or (b) in a de facto relationship, as described in subregulation (2). (1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that : (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis." 6 The delegate had, at the time of the decision, a letter from the applicant's wife dated 1 February 1999 advising that she had separated from the applicant due to difficulties arising since moving to Australia, and advising of the applicant's then address. The delegate determined that the marital status of the applicant was "separated". It followed that the delegate determined that as of 21 June 2000, the applicant was not a "spouse" as defined, because the delegate was not satisfied that the requirements of reg 1.15A(1A)(b)(i), (ii) and (iii) existed. 7 On 3 July 2000, the applicant sought review by the Migration Review Tribunal ("the MRT") of the delegate's decision. 8 The MRT determined on 27 December 2001 to affirm the decision under review, finding that the applicant was not entitled to the grant of a Partner (Migrant) (Class BC) visa. So far as is presently relevant, the MRT in its reasons said : "18. There is evidence before the Tribunal that both the visa applicant and the sponsor informed the Department at different times that the couple had separated. On 22 January 1999, the visa applicant went into the Brisbane office of the Department and informed them that he had moved to a different address and that he and his wife had temporarily separated (D1, f.75). On 1 February 1999, the visa applicant's sponsor wrote a letter to the Department stating 'I have separated from my husband ...' and '... I do not know the future of our relationship as many of the problems are from cultural differences, which are very difficult to resolve.' (D1, f.77). A further file note dated 24 March 1999 (T1, f.117) states that the sponsor said the relationship has finished but that her husband does not accept it. 19. The visa applicant held a substantive visa (a Subclass 309 visa) at the time of application. The sponsor is an Australian citizen, however she has withdrawn her sponsorship of the visa applicant. At the hearing the visa applicant told the Tribunal that he is still putting in an effort to reconcile with his wife, despite the fact that the couple were granted a decree nisi on 10 May 2001. Given this it would appear to the Tribunal that the visa applicant is not prepared to accept that the spousal relationship no longer exists. The visa applicant also indicated that he should be allowed to remain in Australia so as to be able to visit burial place of his only child in Mackay, Queensland. 20. The Tribunal has had regard to the visa applicant's claim that he meets subregulation 101.221 because more than 2 years has passed since the visa applicant lodged an application for a subclass 309 visa. There is evidence before the Tribunal that the visa applicant is no longer the spouse of the sponsoring spouse. There is no evidence before the Tribunal that the visa applicant claims to have suffered domestic violence by the sponsor. The sponsor has not died nor does the visa applicant have any children, therefore the Tribunal finds he does not meet subregulation 101.221 of the Regulations. ... 23. The visa applicant has presented no evidence to the Tribunal that would satisfy it that he is a 'spouse' as within the meaning of the Immigration Regulations or that the relationship between the two parties has not ceased. Nor has the visa applicant disputed that his sponsor has withdrawn her support of his visa application. Having had regard to all the available evidence before it, both oral and documentary, the Tribunal finds that the visa applicant does not meet the requirements of subclause 100.221 of the Regulations. The Tribunal therefore finds the delegate's refusal decision in not granting the visa applicant the visa that he is seeking to be justified. 24. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review." 9 On 14 January 2002, the applicant applied for judicial review of the decision of the MRT. The applicant was not legally represented and has prosecuted the application himself. 10 The substance of the applicant's contentions on the hearing of his application were that : (a) two years having expired on 10 December 1998, he was from that time entitled to a Partner (Migrant) (Class BC) visa as he satisfied the criteria of sub-cl 100.221(2) at that date; (b) if he did not satisfy the requirements of sub-cl 100.221(2), then he satisfied the requirements of sub-cl 100.221(4)(c)(i)(A), as the relationship had ceased because he had suffered domestic violence committed by his wife, the sponsoring spouse and otherwise satisfied sub-cl 100.221(4); (c) if he did not satisfy the requirements of sub-cl 100.221(2), then he satisfied sub-cl 100.221(4)(c)(ii)(A), in that he has access to the grave of his daughter in Australia and otherwise satisfied sub-cl 100.221(4); (d) there was no evidence or other material before the MRT that the applicant's wife had withdrawn her sponsorship of his application before 15 August 1999, the date by which he acknowledged the relationship with his wife had ended; (e) the MRT wrongly treated as relevant evidence, his statement in his application to it for review of the delegate's decision that he did not formally separate from his spouse until 11 January 1999, and a statement made by the applicant in a submission to the Commonwealth Ombudsman that the couple temporarily separated in December 1998; (f) the MRT failed to take into account, as a relevant consideration, the obligations of his wife as a sponsoring spouse under reg 1.20 of the Regulations; (g) the applicant's wife, in initiating proceedings in the Family Court of Australia, was acting under the direction of her father; (h) the decision of the MRT was unreasonable because his relationship with his wife continued until at least 15 August 1999, and at the time of the decision of the delegate of the Minister on 21 June 2000, the applicant was not then divorced; (i) the MRT had no jurisdiction regarding his rights to visit the grave of his daughter; and (j) he wishes to marry another Australian citizen in October of this year. 11 The respondent contends that no demonstrable error of law has been made out and that, in any event, the Court has no jurisdiction to grant relief on the grounds contended for because of s 474(1) of the Act (the privative clause), and because the grounds relied upon by the applicant by reference to the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not available in respect of judicial review under the Act. 12 In my view, no error of law is made out by the applicant, and it is unnecessary to determine whether or not s 474(1) of the Act precludes this Court from entertaining the application. 13 The requirements of sub-cl 100.221(2)(b) and (c) are cumulative and not alternative. Further, par (c) is subject to the provisions of sub-cl (6). The criteria are to be satisfied at the time of the decision to grant or refuse the visa. If the Minister or his or her delegate is not satisfied that the criteria prescribed by the Act and the Regulations are met, the decision-maker is to refuse to grant the visa: s 65(1)(b) of the Act. 14 The applicant did not satisfy the criteria in sub-cl 100.221(2) simply because on 21 June 2000 he was the holder of a Sub-class 309 (Spouse) (Provisional) visa, and more than two years had passed since he made the application for the visa. It remained for him to satisfy the delegate that he was at that time the spouse of the sponsoring spouse, as defined in the Regulations. This he did not do, and on his own admission to the MRT and in this Court, he could not do so because the parties' relationship had ended and they lived separately and apart at the latest by 15 August 1999. 15 Neither the delegate nor the MRT erred in the proper construction or operation of sub-cl 100.221(2) or of the definition of "spouse" in reg 1.15A(1) and (1A). Further, there was ample evidence before both the delegate and the MRT to make the finding that the relationship had ended, and that he did not live with his wife, notwithstanding that two years had passed since the application was made. 16 There was no attempt made by the applicant before the delegate to make out the criteria applicable to cases of domestic violence. Although he contended before the MRT that he was the victim of domestic violence, the MRT found that there was no evidence before it of domestic violence by the sponsor towards the applicant. 17 Domestic violence, for the purposes of the Regulations, has been suffered or committed when the provisions of reg 1.23 of the Regulations are satisfied. That regulation provides : "1.23 When is a person taken to have suffered or committed domestic violence? (1) For the purposes of these Regulations: (a) a person (the alleged victim) is taken to have suffered domestic violence; and (b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim; if: (c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or (d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or (e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or (f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or (g) if the alleged victim is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that: (i) the alleged victim has suffered relevant domestic violence; and (ii) the alleged perpetrator has committed that relevant domestic violence. (2) In paragraph (1) (g): (a) the persons referred to are the following: (i) a spouse of the alleged perpetrator; (ii) a dependent child of: (A) the alleged perpetrator; or (B) the spouse of the alleged perpetrator; or (C) both the alleged perpetrator and his or her spouse; or (D) a person in an interdependent relationship with the alleged perpetrator; (iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse); (iv) a person who is in an interdependent relationship with the alleged perpetrator; and (b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety." 18 Evidence, for the purpose of reg 1.23(1)(g), is to be provided in accordance with reg 1.24 of the Regulations, which in turn requires statutory declarations from the alleged victim (reg 1.25) and from a competent person (reg 1.26). A "competent person" is defined in reg 1.21 and includes a medical practitioner, a psychologist, a nurse, a social worker, a court counsellor, a child welfare officer, or the manager or co-ordinator of a women's refuge, crisis counselling centre or the like. 19 The applicant put no material before the MRT to establish that he was the victim of domestic violence in terms of reg 1.23, let alone evidence in the form required by reg 1.24 to satisfy reg 1.23(1)(g) of the Regulations. The MRT made no error of law in concluding that the applicant had not made out an entitlement to the visa by satisfaction of the criterion in sub-cl 100.221(4)(b) and (c)(i). 20 The construction of sub-cl 100.221(4)(c)(ii)(A) contended for by the applicant is untenable. The sub-clause relates to living children in respect of whom the sponsoring spouse has been granted joint custody of, or access to, by a Court (sub-cl 100.221(4)(c)(ii)(C)) or has a residence or contact order under the Family Law Act 1975 (Cth) (sub-cl 100.221(4)(c)(ii)(D)). 21 The MRT made no error of law in its construction of the criteria in cl 100.221(1), (2) or (4) of sub-cl 100 of Sch 2 to the Regulations, or in the application of them to the circumstances of the applicant. There is no substance in grounds (a), (b) and (c) relied on by the applicant. 22 As to grounds (d) and (e) of the applicant's contentions, there was evidence before the MRT that the applicant's wife had, by 15 August 1999, withdrawn her support of his application for a permanent visa, and as the reasons of the MRT record, the applicant did not suggest otherwise before it. The dispute before the MRT, as put by the applicant, related to the date on which the parties separated, he contending that they had not separated on 10 December 1998 when the two year period since the making of the application expired. There was in the material before the MRT, letters of the applicant's wife, file notes and an affidavit in support of her application in the Family Court of Australia sworn 29 September 2000 that the parties separated on 1 December 1998, which, if accepted by the MRT, would entitle it to be satisfied that the parties in fact separated in December 1998. Similarly, the applicant's own statements, which were consistent with the wife's version of when the separation occurred and the spousal relationship ended, were both relevant and available to the MRT to rely upon if it chose to do so. 23 The matters complained of or raised in grounds (f), (g), (h), (i) and (j), even if correct, do not overcome the fundamental problem that the applicant did not satisfy the criteria in sub-cl 100.221 at the time of decision to grant or reject his application for a Partner (Migrant) (Class BC) visa. Because he did not satisfy the criteria, he was not entitled to a visa of that class, and the Act required that his application be refused: s 65(1)(b). 24 In the view which I take, it becomes unnecessary to consider the legal arguments relating to the operation of s 474 of the Act or the Court's jurisdiction to entertain the applicant's application for judicial review. 25 The application is dismissed. The applicant is to pay the respondent's costs, including reserved costs, if any, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 30 April 2002 Applicant: Applicant appeared in person Counsel for the Respondent: Mr PG Bickford Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 4 April 2002 Date of Judgment: 30 April 2002