Federal Court of Australia

Haiba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 513

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    Introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2), delivered as long ago as November 2021 (Haiba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 250).

2    The judgment of the primary judge is a very thorough one, which sets out in detail the relevant background, the Tribunal’s reasons, the grounds of the application made before the primary judge and his Honour’s reasons for refusing remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of the delegate of the first respondent (Minister) not to grant the appellant a Partner (Temporary) (Class UK) subclass 820 visa (Partner Visa).

3    Given the comprehensive nature of the decision below, it is unnecessary to set out the matters prior to the application being dealt with before the primary judge.

4    The appellant filed a notice of appeal on 24 November 2021, which has been delayed from being determined by reason of a backlog created by the COVID pandemic.

5    No written submissions have been filed on behalf of the appellant, although he has taken the opportunity to make brief submissions before the Court today. I also adjourned the matter for a period in order to satisfy myself that the appellant had the opportunity of having the reasons of the primary judge explained to him by the interpreter (even though he had indicated that he had already read them and had also read the Minister’s submissions).

B    Background and the relevant law

6    Relevantly, to be eligible for a Partner Visa, the appellant must satisfy, inter alia, the criterion in cl 820.211(2)(a) at sch 2 to the Migration Regulations 1994 (Cth) (Regulations), which requires the appellant to be in a “married relationship” with his Sponsor, pursuant to s 5F(1) of the Act. Section 5F(2) provides that 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

they

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

7    The Regulations further provide, at reg 1.15A(2), that the Minister must consider all the circumstances of the relationship when considering a Partner Visa, including the matters set out at reg 1.15A(3). These matters include the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons commitment to each other.

8    Moreover, pursuant to cl 820.211(2)(d)(ii) of sch 2 to the Regulations, as the appellant did not hold a substantive visa at the time he applied for the Partner Visa, he was required to satisfy criteria 3001, 3003 and 3004 of sch 3 to the Regulations unless the Minister is satisfied that there are “compelling reasons for not applying” those criteria.

9    On 26 August 2016, the Delegate refused the application on the basis that the appellant failed to meet the requirements of cl 820.211 of sch 2 to the Regulations.

10    In determining a subsequent application for merits review, the Tribunal made several adverse credibility findings against the appellant, which were summarised by the primary judge, but include that:

(1)    the appellant had not disclosed in his application that he had another child to a woman in France, and that neither the applicant nor the Sponsor had correctly answered whether the Sponsor had previously sponsored another spouse;

(2)    the appellant had given evasive and self-contradictory answers at the hearing; and

(3)    the appellant had two periods of unlawful staying since arriving in Australia, and had previously given false or misleading information in his visa applications.

11    When the matter came before the primary judge, an application for judicial review was made relying on the following two grounds:

1.    Contrary to the Tribunal’s decision I do meet compelling reasons as I have a child and the Tribunal misapplied the law and misinterpreted the term “compelling”.

2.    The Tribunal erred in law because it misunderstood the operation of 820 and I believe that the Tribunal made an error of law and failed to conclude that our relationship is not genuine instead out relationship is indeed genuine and such constitutes compelling reasons which were overlooked by the Tribunal.

12    As to the first of these grounds, the primary judge considered that the appellant’s claim displayed a misapprehension of the Tribunal’s decision, insofar as the Tribunal did waive the sch 3 criteria on the basis that the birth of the appellant’s child was a compelling circumstance. The primary judge further noted that the Tribunal did consider the appellant’s child elsewhere in its decision.

13    As to ground two, the primary judge stated as follows:

[24]     This ground claims the Tribunal misunderstood the operation of subclass 820 of Schedule 2 to the Regulations, and made an error of law. Ground 2 does not, however, identify the understanding the Tribunal had of the subclass, and the manner in which any such understanding did not conform to subclass 820 of Schedule 2 to the Regulations; nor does the ground identify the error of law the Tribunal made.

[25]     Ground 2 also claims the Tribunal failed to conclude the applicant’s and Sponsor’s relationship was genuine when the relationship is genuine. That is an appeal to the merits and, for that reason, the ground does not disclose any jurisdictional error.

[26]     Ground 2 may be taken to claim it was not reasonably open to the Tribunal not to accept the applicant and Sponsor were in a genuine spousal relationship. I would not, however, accept such ground. The Tribunal identified the matters on which it relied for concluding it was not satisfied the applicant considered the relationship with the Sponsor to be genuine or long term. The Tribunal particularly relied on the applicant’s migration history in France in 2009 and 2010; on the Tribunal’s finding that the applicant’s decision to marry the Sponsor, a person whom he knew suffered from mental illness, and to have a child with the Sponsor in circumstances where the Sponsor could not look after, or had difficulties looking after, the children she had from a previous marriage, was motivated by his desire to achieve a migration status in Australia; on the absence of evidence that the applicant accompanied the Sponsor, the Sponsor’s brother, and the Sponsor’s daughter, when they visited the Sponsor’s mother; the applicant’s not knowing the surname of the Sponsor’s mother’s husband; and the Tribunal’s finding, based on the matters the Tribunal identified, that the applicant lacked credibility.

[27]     Ground 2 also fails.

C    The notice of appeal

14    In his notice of appeal before me, the appellant relies on the following four grounds:

1.    The judgment of His Honour Judge Manousaridis is not logical and unreasonable and was made contrary to the evidence provided as my marriage with the sponsor is genuine as well as long term and the judgment is infected by error of law.

2.    My original application was completed by a migration agent and there is no failure from my side as I have provided answers to the questions the agent asked me. While I admit that I was previously in a relationship but my sponsor and I have given consistent evidence that we live together and His Honour as well as the Tribunal erred in law by stating that our relationship is not genuine and ongoing.

3.    The Tribunal as well as His Honour relied on inconsistencies yet the evidence before them that we are legally married and committed was not considered according to law and both the Tribunal and His Honour committed serious error as they failed to ask the question what will happen to my sponsor if I depart Australia and what happened to our daughter who was 10 weeks old at the time of the Tribunal decision.

4.    The Tribunal while at the face accepted joint bank account, joint electricity statement, joint car insurance and joint family and community services statement, as well as our consistent evidence, the Tribunal failed to give proper weight to the evidence.

15    Although the grounds before the primary judge did not directly raise the circumstances surrounding the appellant’s migration agent, the Tribunal’s failure to ask certain questions in arriving at its conclusion, and the Tribunal’s failure to give proper weight to certain financial documents (and recognising that leave would be required for these matters to be raised), it is convenient for present purposes to deal with each ground seriatim.

D    The grounds of appeal

D.1    Ground One

16    It is unnecessary for me to canvass, yet again, the authorities relating to unreasonableness such as to give rise to jurisdictional error. It is sufficient for me to note that the contention raises no higher than a bare assertion. Indeed, this is an example of a primary judge carefully and comprehensively setting out the material before the Tribunal and the Tribunal’s process of reasoning such as to explain why it was reasonably open for the Tribunal to conclude that the applicant and the Sponsor were not in a genuine spousal relationship in the light of material before the Tribunal. Although the appellant disagrees with this conclusion, it cannot be said that the primary judge’s conclusion that there was no legal error in the decision of the Tribunal was legally unreasonable.

D.2    Ground Two

17    Even if it be accepted that the migration agent may not have performed the task entrusted to the agent as the appellant now asserts he should have, this contention, repeated in oral submissions, was not articulated with any specificity before either the Tribunal or the primary judge.

18    As to the assertion the Tribunal fell into error as, despite giving evidence consistent with his Sponsor, no finding was made of a genuine spousal relationship, this does not do justice to the primary judge’s consideration of the Tribunal’s reasoning process.

19    If one is to go to the Tribunal’s reasons, it was found that the parties provided some “consistent answers”, but a process of reasoning is set out whereby a conclusion is reached of a degree of non-satisfaction, on the evidence, that “[t]he parties share a household in a manner commensurate with that of a genuine married couple with a mutual commitment to the relationship.”

20    The Tribunal set out several reasons as to why it thought the nature of the household between the appellant and the Sponsor was inconsistent with that of a genuine married couple when considering whether there existed a genuine spousal relationship between the appellant and the Sponsor.

21    The second ground put forth by the appellant seems to attribute a similar error to the primary judge, and to the extent that it does so, it seems to me to constitute an impermissible attempt to seek merits review, Accordingly, ground two must be rejected.

D.3    Ground Three

22    Ground three suffers from a similar vice.

23    The Tribunal found that the appellant and the Sponsor were legally married, in satisfaction of s 5F(2)(a) of the Act. The Tribunal further explicitly addressed the question of commitment and found, as noted above, that while the Sponsor was committed to the relationship, the appellant was not.

24    To the extent some similar error is sought to be attributed to the primary judge, this again seems to me to be directed to the merits of the review, and thus ought to be rejected.

25    Further, to the extent that, in ground three, it is submitted that the Tribunal and the primary judge did not consider what might happen to the Sponsor and their child if the appellant were not to receive the Partner Visa, these were not, of course, mandatory considerations under cl 820.211, reg 1.15A, or otherwise. As the Minister correctly submits, in any case, such questions are only relevant to whether there were compelling reasons to waive the sch 3 criteria. It is worth noting that the Tribunal did waive those criteria on the basis that the birth of the appellant’s child was a sufficiently compelling reason.

D.4    Ground Four

26    Ground four does not refer to any error in the reasons of the primary judge but again goes to the issue of merits.

27    Although, in and of itself, this is a sufficient reason to reject ground four, it should be further noted that the Tribunal did expressly refer to the joint bank, electricity, insurance, and family and community services statements. That said, however, a finding was made, which was reasonably open on the evidence, that the appellant did not fully disclose his financial position to the Sponsor and the parties did not manage their finances in a way commensurate with that of a genuinely married couple in a long-term relationship.

E    Conclusion and orders

28    For completeness, I should mention three additional matters raised by the appellant during the course of oral submissions.

29    The first was the allegation of mistakes by the migration agent, with which I have already dealt. The second related to contentions that the appellant did not know he had a child in France when he left that country, and the third related to a matter referred to in the primary judge’s reasons (at [8(c)]), concerning a jackpot at the RSL club. As the primary judge records (at [10]):

The tribunal appeared to rely on the appellant claiming to have won a jackpot of $30,000, 28,000 of which was paid to him by cheque and $2,000 in cash.

30    Referring to evidence that the appellant had said to the Tribunal that $28,000 was not paid into the joint bank account, but into a personal bank account, the Tribunal found no reasonable explanation was given as to why he would not share the jackpot with the Sponsor.

31    Relevantly, before me, the appellant has not pointed to any legal error in which the Tribunal went about making findings as to the financial aspects of the relationship, which was part of the matters to which the Tribunal had regard in considering reg 1.15A(3).

32    Of course, these are the matters which are required to be considered when the decision-maker is considering the circumstances of the relationship and the Tribunal did so.

F    CONCLUSION AND ORDERS

33    Although the appellant may disagree with the conclusions reached by the Tribunal, this is not, of course, enough to show any legal error in the decision of the primary judge meriting appellate intervention.

34    It follows inexorably that the appeal must be dismissed, with costs. I will make an order to that effect, but I note that I do not intend it to be entered until these revised reasons have been produced.

Associate:

Dated: 19 May 2025