FEDERAL COURT OF AUSTRALIA Iqbal v Minister for Immigration and Border Protection [2018] FCA 862 Appeal from: Application for leave to appeal: Iqbal v Minister for Immigration & Anor [2016] FCCA 1896 File number: VID 974 of 2016 Judge: NORTH J Date of judgment: 31 May 2018 Date of hearing: 31 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondents: Mr A Yuile Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 974 of 2016 BETWEEN: SHOAIB IQBAL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 31 MAY 2018 THE COURT ORDERS THAT: 1. The application for leave to appeal is refused; 2. The applicant to pay the first respondent's costs of the application fixed in the sum of $1,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NORTH J: 1 Before the Court is an application for leave to appeal from orders made by the Federal Circuit Court on 2 August 2016. The Federal Circuit Court dismissed a show cause application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The orders of the Federal Circuit Court were made in respect of a decision of the then Migration Review Tribunal made on 10 June 2015 not to grant the applicant a Partner (Residence) (Class BS) visa. 2 The applicant is a 30 year old male citizen of Pakistan. He married an Australian citizen in Australia in October 2010. As a consequence, he was granted a Partner (Temporary) Subclass 820 visa on 25 January 2012. 3 Clause 801.221(2)(c) of the Migration Regulations 1994 (Cth) requires that for the grant of the Partner (Residence) (Class BS) visa, the applicant be the spouse of the sponsor at the time of the decision. Spouse is defined in s 5F of the Migration Act 1958 (Cth) (the Act) as follows: (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. 4 The Tribunal recorded the following evidence given by the applicant: 16. The applicant gave evidence that his relationship with his sponsor experienced a number of problems in their marriage which resulted in them separating in or about late May 2014 although they continued to live under the same roof for a few months. The applicant gave evidence that they separated permanently when he moved out of the house in August 2014. They have not lived together since that time and the applicant is in the process of applying for divorce. 5 The Tribunal then concluded: 19. On the evidence before the Tribunal, the relationship broke down during May 2014 and finally ceased in August 2014. The applicant and the sponsor separated permanently in August 2014. The sponsor did not appear at the hearing. 20. The Tribunal finds that at the time of decision the applicant and the sponsor are not in a continuing relationship, and do not have a mutual commitment to a shared life to the exclusion of all others. 6 As a result, the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Partner (Residence) (Class BS) visa. 7 Before the Federal Circuit Court, the argument of the applicant for a review of the Tribunal's decision, and the Minister's response was set out in that judgment as follows: 16. When the matter came before the Court the Applicant, who was self-represented and extremely fluent in English, said that the First Respondent's submissions did not address the matter he was disputing. The decision of the delegate was given on 6 May 2014. There was no evidence before the delegate that he did not satisfy the regulation requirements. He had gone to the Tribunal about the delegate's decision but by the time of the Tribunal hearing he was no longer in the relationship. At the time of the refusal by the delegate he was in the relationship but the delegate did not accept this and he did not get permanent residence as a result. He submitted that the Migration Review Tribunal should have assessed his application as against the time of the delegate's decision. 17. Counsel for the Minister submitted that the delegate's decision was a primary decision pursuant to s.476(2)(a) of the Act and this Court had no power to review that decision. That submission is plainly correct. 8 The argument in this Court for leave to appeal was essentially the same as that advanced before the Federal Circuit Court. 9 The applicant at one stage sought to argue that his complaint was with the decision of the delegate. At the time of the delegate's decision his relationship was subsisting and his argument was that there was therefore no basis upon which the delegate should have refused his visa. However, the jurisdiction of the Federal Circuit Court and this Court is to review a primary decision: see s 476(4) and s 476A of the Act. Consequently, by reason of the operation of s 476(2)(a) of the Act, this Court does not have jurisdiction to review the decision of the delegate. 10 On an application for leave to appeal the Court must consider whether the decision below is attended with sufficient doubt to warrant an appeal and whether injustice would follow if the orders were allowed to stand. The judgment of the Federal Circuit Court is undoubtedly correct. The requirement for a mutual commitment to a shared life, which is a basic qualification for the grant of the visa, is a requirement which must be satisfied at the time when the decision to grant the visa is made. At the time when the Tribunal considered the matter, the applicant truthfully explained that the relationship with the sponsor had come to an end. That necessarily meant that he could not qualify as a spouse and consequently could not be granted the visa sought. There is no doubt about the correctness of the decision. Leave to appeal should be refused on that basis. 11 The Minister, however, in written submissions properly raised the fact that the file in the Department disclosed that a certificate under s 375A of the Act was executed in relation to certain material on the file. No notice of this certificate was given to the applicant. The question therefore must be asked whether there was any possibility that the applicant was, by reason of those circumstances, denied procedural fairness. 12 Given the ground upon which the applicant failed to obtain the visa, nothing contained in the certificate could have altered the position and, hence, there could have been no denial of procedural fairness by the failure to disclose the contents of the certificate to the applicant. 13 For those reasons the application for leave to appeal must be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 31 May 2018