Baylouneh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 360

FEDERAL COURT OF AUSTRALIA

Baylouneh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 360 MOHAMMED BAYLOUNEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 369 of 2004 RYAN J 7 APRIL 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 369 of 2004

BETWEEN: MOHAMMED BAYLOUNEH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 7 APRIL 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Tribunal made on the 18 February 2004 be set aside. 2. The matter be remitted to the Tribunal to be heard and determined according to law. 3. The respondent pay the applicant's costs of the application, including any reserved costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 369 of 2004

BETWEEN: MOHAMMED BAYLOUNEH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 7 APRIL 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision of the Migration Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent ("the Minister") on 29 May 2003 to grant the applicant a Partner (Migrant) (Class BC) visa. 2 The applicant was nominated for the purpose of his initial application for a combined subclass 309/100 visa on 19 March 2001 by his spouse, Ms Faye El Naha ("the Nominator"), an Australian citizen whom the applicant married in Lebanon on 31 January 2003. However, on 15 April 2003, the Nominator informed the delegate of the Minister that she wished to withdraw her nomination of the applicant as her relationship with him had broken down. In support of that assertion she submitted an intervention order made by a Magistrates Court against the applicant and expressed to remain in force until 23 May 2005. 3 On receiving that information, the delegate advised the applicant and asked him for a response. What follows is the Tribunal's summary of the submission made by the applicant in response to the delegate's invitation; '16. In a submission dated 27 May 2003, the visa applicant stated that he worked full time and all his wages are paid to the nominator who manages their financial needs. The arrangement is that the nominator visits his employer every week who gives her his pay packet unopened. The nominator then pays him a small sum each week to enable him to buy small items for day to day living. He stated that the nominator left the home as a result of his refusal to sign documents associated with her borrowing money. He refused to sign the documents because he did not believe that they could afford the loans that she wished to incur. He further stated that as a consequence the nominator falsely alleged that he assaulted her and as a result of that assault she left the matrimonial home. He concluded that he continues to be employed and he wants to reconcile and he can continue to provide financially for the nominator and her children (D1, f 119-121). 17. The visa applicant also submitted a declaration from his employer, Fayez El Danawi dated 27 Mary 2003 in which he stated that the visa applicant worked for him but the nominator was the person who collected the applicant's wages weekly (D1, f 118).' 4 The delegate refused to grant the applicant a visa, taking the view that the applicant was no longer in a spousal relationship with the Nominator and the nomination which had been in existence at the time of applying for the visa had been withdrawn. 5 Before the Tribunal, the applicant sought to make out a case that he had been subjected to threats of, and actual, physical violence by the Nominator. Those claims were summarised as follows by the Tribunal at [22]-[24] of its reasons for decision; '22. He told the Tribunal about the circumstances of meeting his former nominator and the deterioration of the relationship since his arrival in Australia in June 2001. He said the relationship had been good for the first few months but they then began to argue. He described the forms of abuse to which he increasingly became subject to in terms which reflected the evidence given in his statutory declaration. He indicated that she subjugated him by taking his wages from him, prevented him from learning English and belittled him in front of family and friends. He said she struck him on 40 or 50 occasions with a clenched fist, or with implements such as a mop handle or towel. The conflict came to a head in April 2003 when she tried to coerce him into signing loan documents. When he refused she hit him with a chair. She called the police. She threatened him by saying she "would not let you live on this earth." He was fearful for his life. She left the matrimonial home and obtained an intervention order shortly thereafter. 23. The visa applicant's sister, Amina Baylouneh, told the Tribunal that she had observed the former nominator physically assault him including on one occasion with a shoe. The visa applicant's sister in law, Lama Kanjo, told the Tribunal that she had observed the former nominator "slap him around". His ex employer, Fayez El Danawi corroborated the visa applicant's evidence that the former nominator demanded that his wages be paid directly to her. 24. A number of documents were also submitted including a letter of approval of a personal loan to the nominator from the Commonwealth Bank dated 4 June 2001, bank statements, documentation in relation to the purchase of a motor vehicle by the nominator, payslips from Hassoun Coffee and documentation from the Australian Taxation Office in relation to a Notice of Seizure and the prosecution of the nominator in an excise matter.' 6 The Tribunal approached the review on the basis that it was common ground that the applicant satisfied all of the criteria for a Class BC Sub-class 100 Spouse visa set out in sub-cl 100.221(2) of the Migration Regulations ("the Regulations"). As sub-cl 100.221(3) was inapplicable to him, the applicant had also to satisfy sub-cl 100.221(4) which provided; '(4) The applicant meets the requirements of this subclause if: