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El Rifai v Minister for Immigration & Anor [2011] FMCA 9 (17 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EL RIFAI v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of the Migration Review Tribunal – Partner (Temporary) (Class UK) visa – whether there was a “married relationship” for the purposes of the Migration Act – Tribunal not required to consider domestic violence having found there was no “married relationship” – no failure to take into account a relevant consideration – Tribunal did not misapply or misconstrue the relevant law – decision not irrational or illogical – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.5, 5F, 12, 476
Migration Regulations 1994 (Cth), reg.1.15A, Sch.1, Sch.2
Marriage Act 1961 (Cth), s.88E

Tickner v Chapman (1995) 57 FCR 451
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577; (2009) 113 ALD 270
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 ALR 24
Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170
Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279
Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47; (2007) 159 FCR 152
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 115 ALD 248; (2010) 266 ALR 367

Applicant:
HASNA EL RIFAI

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 1381 of 2010

Judgment of:
Nicholls FM

Hearing date:
30 September 2010

Date of Last Submission:
30 September 2010

Delivered at:
Sydney

Delivered on:
17 January 2011

REPRESENTATION

Counsel for the Applicant:
Mr P Reynolds

Solicitors for the Applicant:
Fragomen

Counsel for the Respondents:
Mr HPT Bevan

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application made on 24 June 2010, and amended on 18 August 2010, is dismissed.
(2) The applicant to pay the first respondent’s costs set in the amount of $5,400.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1381 of 2010

HASNA EL RIFAI

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 24 June 2010, and amended on 18 August 2010, under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 31 May 2010, affirming a decision of a delegate of the respondent Minister not to grant a Partner (Temporary) (Class UK) visa to the applicant, Ms el Rifai.

Background

  1. The applicant is a citizen of Lebanon. She arrived in Australia on 2 August 2006 and married an Australian citizen (Mr Rabeh Rifahi) on 8 September 2006 (Court Book – “CB” – CB 5, CB 13, CB 34). She lodged an application for migration to Australia by way of a partner visa application on 5 April 2007 (CB 1 to CB 58 with attachments). She was assisted by a registered migration agent (CB 21).
  2. Amongst other matters, the applicant provided evidence going to the relationship with her husband. This included documents said to show the purchase of furnishings together (CB 36 to CB 39) and that they jointly rented residential accommodation (CB 35).
  3. In the covering letter to the application, the applicant’s migration agent submitted (CB 1):
  4. The delegate was provided with an extract of the relevant NSW Police records which related to a missing persons report in respect of Mr Rifahi made by his brother (CB 77 to CB 80).
  5. By letter dated 7 May 2007 the applicant’s agent wrote to the Minister’s department (CB 81). He submitted that:
  6. Also enclosed in support was:
    1. The applicant’s Statutory Declaration of 12 April 2007 (CB 83 to CB 87).
    2. A Statutory Declaration from a clinical psychologist who, amongst other matters, was of the opinion (at CB 92):
      • “Based on information available to me as well as based on my clinical observation, I came to a conclusion that as a result of the domestic violence, sexual abuse and threats of harm that Mrs Al-Rifai [sic] experienced by her former husband, she became depressed and anxious.”
    3. A Statutory Declaration from a social worker who, amongst other matters, was of the opinion that the applicant had been the subject of verbal, emotional and physical forms of domestic violence (CB 98 to CB 104).

Relevant legislation

  1. The Minister’s delegate understood the application to be for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. However the issue ultimately before the Court concerns the class UK visa, as the permanent class BS visa requires the applicant to be a holder of the temporary UK visa.
  2. Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly sets out the requirements for the making of an application for a Partner (Temporary) (Class UK) visa: item 1214C.
  3. The criteria for this subclass of visa are set out in Sch.2 to the Regulations. Relevantly, amongst other matters, to be successful the applicant was required to be the spouse of a person who was an Australian citizen. In addition, cl.820.211(8) is relevant to this case:
  4. Pursuant to s.5 of the Act, the term “spouse” has the meaning given by s.5F of the Act:
  5. Section 12 is in the following terms:
  6. Regulation 1.15A makes further provisions for the purposes of s.5F(3). Regulation 1.15A (at the relevant time) provides:
  7. The delegate was not satisfied that the applicant was the “spouse” of an Australian citizen as this term is defined at reg.1.15A(1A)(b) (CB 105 to CB 114). In essence, the delegate found that, in the circumstances presented, there was no mutual commitment to a shared life as a husband and wife to the exclusion of all others, and that the relationship was not continuing. The delegate was informed in this conclusion by the finding that Ms el Rifai’s and Mr Rifahi’s commitment to each other had deteriorated due to circumstances relating to an unhappy marriage.

The Tribunal

  1. The applicant applied for review to the Tribunal on 16 October 2008. She was again assisted by a migration agent (CB 117 to CB 123).
  2. A number of submissions were made to the Tribunal and further evidence was provided (CB 135 to CB 136, CB 143 to CB 145, CB 150 to CB 152). The applicant attended a hearing before the Tribunal (CB 146 to CB 147).
  3. In having regard to the relevant law, the Tribunal gave itself the following directions:
    1. The threshold issue in the circumstances of this case was to determine whether the relationship between Ms el Rifai and Mr Rifahi was a “married relationship as defined in reg.1.15A prior to the relationship having ceased” ([11] at CB 158).
    2. The Tribunal must be satisfied that: “... there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis: r.1.15A(1A)(b) and 1.15A(2)(c)” ([13] at CB 158).
  4. The Tribunal found (based on a copy of the marriage certificate and registration) that the marriage was valid for the purposes of reg.1.15A(1A)(a) ([44] at CB 167).
  5. However, having regard to the circumstances, the Tribunal was not satisfied that there was a mutual commitment to a shared life as husband and wife, or that the relationship was genuine and continuing prior to it having ceased ([44] and [45] at CB 167).
  6. The Tribunal was informed to that conclusion by inconsistencies that it said it found in the material before it, including the applicant’s evidence, which led it to find that the applicant had not “been honest and truthful” ([46] to [50] at CB 168 to CB 169).
  7. It did allow that, at some time, Mr Rifahi and the applicant were committed to commencing a spousal relationship, but did not actually do so ([58] at CB 170).
  8. The Tribunal reasoned that, given its finding that the applicant was not in a spousal relationship prior to the relationship having ceased (within the meaning of reg.1.15A), the applicant was not able to satisfy cl.820.211(8). The applicant did not meet the requirements of cl.820.211(2), and given that no other subclasses were relevant the applicant did not meet the requirements of cl.820.211(1), and therefore could not be granted the visa. The delegate’s decision was therefore affirmed.

Application to the Court

  1. The application to the Court, as amended, is in the following terms:

Before the Court

  1. Before the Court the applicant was represented by Mr P Reynolds of counsel. Mr HPT Bevan of counsel appeared for the Minister. In addition to the Court Book, the Court was assisted with written submissions filed on behalf of both parties.
  2. Although all the grounds in the amended application were pressed, the argument before the Court, and as also explained in written submissions, contained three issues:
    1. Failure to take into account a relevant consideration and/or a failure to give proper, genuine and realistic consideration to the claims (Grounds two and three).
    2. A misconstruction and misapplication of the relevant law (Ground one).
    3. The Tribunal’s decision was based on a finding of fact that was irrational, illogical or not based on findings or inferences of fact supported by logical grounds (Ground four).

Consideration

  1. Mr Reynolds referred to a number of authorities and principles in support of grounds two and three. I understood the thrust of the complaint to be that jurisdictional error occurs where, even though the Tribunal has nominally referred to a matter, the Court nevertheless concludes that the Tribunal has not turned its mind to the matter. (See in particular Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ, NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51, and SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577; (2009) 113 ALD 270 at [42] – [46])
  2. The applicant relies on the principle that a failure to (properly) take into account a relevant consideration, in circumstances where the decision maker is bound to take into account a relevant consideration, and in circumstances where the decision maker is bound to take into account such a consideration having regard to the relevant statute, amounts to jurisdictional error (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 ALR 24 at 39).
  3. Mr Reynolds submitted there were two such matters which revealed jurisdictional error on the part of the Tribunal.
  4. The first is that the Tribunal did not address or make findings in relation to the alleged domestic violence. The argument is that reg.1.15A required the Tribunal to take into account all of the circumstances of the claimed relationship. Ms el Rifai had provided evidence that Mr Rifahi had acted violently towards her. That one spouse perpetrating domestic violence on the other is said to be a circumstance of the relationship.
  5. I understood the argument to be that the matters set out at cl.820.211(8) (see [10] above) are not to be dealt with sequentially, but should be looked at holistically. The matter of domestic violence is set out at cl.820.211(8)(d).
  6. In essence, Mr Reynolds submitted that the Tribunal accepted that the applicant was the holder of a Subclass 360 visa (820.211(8)(a)), had married Mr Rifahi under a marriage recognised and valid for the purposes of the Marriage Act 1961 (Cth) (“the Marriage Act”) (cl.820.211(8)(b)), the relationship had ceased (cl.820.211(8)9c)), but the Tribunal did not properly consider the matter at cl.820.211(8)(d).
  7. I understood Mr Reynolds to submit that the question that the Tribunal was relevantly required to answer, with reference to reg.1.15A, was whether or not the marriage was valid for the purposes of the Act. He submitted that the Tribunal made some reference to the issue of domestic violence in its analysis (see at [54]: “... in the applicant’s statutory declaration she states that her life with Mr Rifahi was ‘like hell full of deprivation, isolation, slavery, emotional, psychological, sexual and physical abuse’”).
  8. But, and this is where his reliance on the authorities above becomes clear (see [26] above), the Tribunal’s reference did not amount to proper consideration of the occurrence of domestic violence within the relationship. At [54] of the decision record the reference was made in the context of assessing the matter of the responsibility for housework while seeking to address the issue of the nature of the household.
  9. Further, the reference by the Tribunal to the evidence of the psychologist and social worker ([49] at CB 169) again did not amount to proper consideration because the Tribunal was focussed solely on inconsistencies in the applicant’s factual account of a claimed trip to Manly (in Sydney), rather than looking at the effect of domestic violence on the nature and validity of the marriage.
  10. I agree with Mr Bevan that the applicant’s case in this regard proceeded on an erroneous basis. The basis for the applicant’s attack was that the Tribunal was required to make an assessment of the validity of the marriage pursuant to reg.1.15A, and in this the matter of domestic violence was a part of that consideration.
  11. This confuses two separate aspects of the statutory and regulatory tests. The relevant character of the marriage, is governed by s.5F of the Act. The criteria that the applicant was required to meet included whether the applicant had married the “sponsoring spouse” under a marriage that is recognised as valid for the purposes of the Act (cl.820.211(8)(b)).
  12. Section 5F(2)(a) provides that, for the purposes of whether a person is the spouse of another person and are in a married relationship (s.5F(1)), they are required in part to be “married to each other under a marriage that is valid for the purposes of this Act” (s.5F(2)(a)).
  13. The relevant statutory and regulatory scheme is that s.5F(2) sets out (at (a) to (d)) four conditions that must be met if a person can be said to be the spouse of another person and in a married relationship for the purposes of the Act (s.5F(l)).
  14. What is set out at reg.1.15A are the relevant provisions in determining whether the conditions at s.5F(2)(a) to (d) exist. Regulation 1.15A(2) provides that, in considering an application for, relevantly, a Partner (Class UK) visa (as here), the Tribunal must have regard to the matters set out at reg.1.15A(3). Namely:
    1. The financial aspects of the relationship.
    2. The nature of the household.
    1. The social aspects of the relationship.
    1. The nature of the person’s commitment to each other.
  15. The approach of the Tribunal embodies and reflects the distinction drawn in this scheme between a formal valid marriage and a married relationship for the purposes of the Migration, not Marriage, Act.
  16. The Tribunal accepted that Ms el Rifai and Mr Rifahi had entered into a valid and registered marriage ([44] at CB 167). But the question for the Tribunal, in light of the relevant statutory and regulatory provisions referred to above, was whether there existed a “married relationship” (not as perhaps consequent on the provisions of the Marriage Act) but for the purposes of the Migration Act. That is, ultimately, as set out in s.5F and reg.1.15A.
  17. The Tribunal accepted that a marriage had been registered on 8 September 2006. There is no real dispute between the parties that the relationship had ceased.
  18. In these circumstances, and in light of the relevant statutory regulatory requirements, that Tribunal was correct to identify the “threshold issue” for it as being to determine whether the relationship was a “married relationship” for the purposes of the Act (as defined in reg.1.15A) prior to it having ceased.
  19. If regard is had to [51] to [53] (financial aspects), [54] to [55] (nature of the household), [56] to [57] (the social aspects of the relationship) and [58] to [61] (nature of the commitment) and [62] of the decision record, the Tribunal did just that.
  20. Once the Tribunal reached the conclusion that it was not satisfied that the relationship was genuine and continuing, and that the parties were not mutually committed to a relationship as husband and wife to the exclusion of all others, it was not necessary to go any further and consider the matter of domestic violence beyond the manner in which it had already done so.
  21. For the purposes of cl.820.211(8) the Tribunal found that the marriage was not recognised as valid for the purposes of the Act (cl.820.211(8)(b)). Given the conjunctive relationship between each of (a), (b), (c), and (d) at cl.820.211(8), any specific finding that the applicant had suffered domestic violence could not have assisted her (cl.820.211(8)(d)).
  22. In these circumstances, the Tribunal did not fail to take into account a relevant consideration or to properly consider any relevant consideration. What Mr Reynolds described as the Tribunal’s “peripheral” references to the domestic violence matter were, in fact, the appropriate references to that evidence as it related to the “threshold issue”.
  23. As Mr Bevan correctly submitted, if the Tribunal had found in the applicant’s favour in relation to cl.820.211(b) (given that it accepted that cl.820.211(a) and (c) had been met), then it would have been necessary in that circumstance to have gone on to consider whether the applicant had suffered domestic violence committed by the “sponsoring spouse” (cl.820.211(8)(d)).
  24. In the circumstances, however, that issue never arose for consideration given that the Tribunal’s finding on the “threshold issue” was open to it on what was before it, and for which it gave reasons.
  25. The second matter, or limb, in this attack is that the Tribunal did not properly consider, in the sense that it did not turn its mind to, the question as to whether Mr Rifahi and Ms el Rifai ever consummated their marriage, and more generally to the “physical” side of their relationship.
  26. Mr Reynolds referred in particular to the applicant’s representatives’ submission of 9 February 2010 (CB 151):
  27. The submission was that, when this is read with the applicant’s other evidence, there existed a physical aspect of the relationship and the Tribunal should have considered this evidence as being a circumstance of the relationship which should have been taken into account.
  28. Mr Reynolds submitted that while this is not explicitly stated as an item in reg.1.15A, it is implicit (reg.1.15A(3)(d)(iii): “... the degree of companionship and emotional support that the persons draw from each other”).
  29. In all the submission was that the “physical side” of the relationship (implicitly referred to) was relevant to the consideration as to whether the relationship was one of intention to be commenced in the future (as found by the Tribunal) or a continuing one.
  30. The matters that the Tribunal was required to consider were the matters set out at s.5F and as informed by reg.1.15A. As referred to above, the Tribunal considered each of those matters.
  31. The difficulties for the applicant’s argument here is, first, that consummation of a marriage (and matters of loss of virginity as set out in the medical certificate at CB 152) are not immediately relevant to whether a marriage is valid for the purposes of the Act.
  32. Section 5F(2)(a) talks of validity of a marriage for the purposes of the Migration Act. The Tribunal noted that for the purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Migration Act, the Marriage Act applies as if s.88E of that Act were omitted (s.12 and [12] at CB 158).
  33. Second, it was, as Mr Bevan submitted, not made clear before the Court why consummation (and the physical side of the relationship) was relevant to the question as to whether the relationship was a married relationship as defined in reg.1.15A prior to its having ceased.
  34. However, at best I understood the situation to be that in circumstances where the Tribunal found that a marriage had been registered ([44]), that they had gone through a ceremony before friends and relatives ([48]), and they had commenced living together ([48]), the applicant’s evidence of the physical side of the relationship and sexual relations (consummation), that she had only ever been with Mr Rifahi in this context, was relevant to the issue as to whether their relationship was only one of intention to enter into a spousal relationship or whether they had in fact actually done so.
  35. The difficulty for the applicant is that, at its highest, the argument equates having sex only in a spousal relationship, and consequently the validity of the marriage, for he purposes of the Act. In short, they had sex therefore there was a spousal relationship.
  36. While it is the case that some cultural or traditional values may only allow for such an equation, the Tribunal is bound by the requirements of the Migration Act and its Regulations.
  37. The only part of that regulatory expression referred to in this context by the applicant’s submissions was that matter set out at reg.1.15A(3)(d)(iii) (companionship and emotional support).
  38. Given the explicit matters set out at reg.1.15A(3)(a) to (d), the applicant’s claim that the Tribunal failed to consider the physical side of the relationship in the sense of consummation of the marriage goes no further, as no such condition is apparent.
  39. The Tribunal did address the issue of companionship and commitment. It found on the evidence that they only lived together for an: “extremely short period of time”, and that based on the applicant’s own evidence: “... there was no companionship or emotional support between them” ([59] at CB 170).
  40. It may indeed be the case that the applicant and Mr Rifahi had sex during this time. The Tribunal noted that applicant’s evidence of: “sexual and physical abuse” (for example [54] at CB 169). However such evidence, in the circumstances of this case and given the nature of the evidence and the absence of any evidence as to any positive aspects of companionship, can hardly be said to support the proposition that there was “a degree of companionship and emotional support”.
  41. It is clear that the statutory definition, and regulatory matters that inform it, require something more than the mere act of sex (the “physical side”) before it can be said that all of the circumstances of the relationship reveal that the persons are in a “married relationship”.
  42. There is no error in the Tribunal’s approach to the relevant statutory and regulatory test in determining the issue as to whether the relationship claimed was a “married relationship” for the purposes of the Act. Grounds two and three are not made out.
  43. In ground one, the applicant asserts that the Tribunal misconstrued and misapplied the relevant law. This is said to be with reference to s.5F, reg.1.15A and cl.820.211.
  44. This ground also arises from the issue of domestic violence, although here to a large part the argument is not that the Tribunal ignored evidence of such violence, but that it used it to find contrary to the applicant’s position on the “genuineness” of the married relationship.
  45. The argument is based on the view of cl.820.211 and Division 1.5 of the Regulations, that a victim of domestic violence carried out by an Australian citizen spouse whose relationship with the applicant has ceased may, not withstanding this, still satisfy the relevant criteria for the grant of the visa even though the relationship has broken down.
  46. The submission was that the “humanitarian” aspect of the scheme is such as to permit a victim of domestic violence to leave such an abusive relationship without compromising their immigration status (Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170, Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279).
  47. In many ways this is a different restatement of the underlying complaint in grounds two and three. It fails for essentially the same reasons.
  48. First, I should just note that I accept Mr Reynolds’ submission as to the totality of the policy intention behind the statutory and regulatory scheme.
  49. But second, what is again missing in this argument is the basis upon which the Tribunal’s obligation to consider the matter of domestic violence in “the circumstances of the relationship” is engaged.
  50. As set out above, the matter of the Tribunal being compelled to consider “all of the circumstances of the relationship” is set out in reg.1.15A(2). The matters set out at reg.1.15A(3) are not comprehensive of that consideration.
  51. The criteria in cl.820.211(8) obviously do include a reference to domestic violence (cl.820.211(8)(d)). The need to consider whether domestic violence perpetrated by the sponsoring spouse has been suffered by the applicant, however, is plainly dependent on there having been a relationship between the applicant and the sponsoring spouse which has ceased (cl.820.211(8)(c)). This of course is the relationship envisaged by s.5F and reg.1.15A (Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47; (2007) 159 FCR 152).
  52. That relationship is one that is valid for the purposes of the Act (cl.820.211(8)(b)).
  53. The Tribunal found that no such spousal relationship between Mr Rifahi and Ms el Rifai ever commenced. If such a relationship never commenced it cannot be said to, at some time, have ceased.
  54. The humanitarian “benefit” that Mr Reynolds refers to is, plainly, only bestowed on those who were in such a relationship and cannot, or should not, because of domestic violence, be forced to return to it to be able to remain in Australia.
  55. The applicant complains that on the Tribunal’s approach the existence of domestic violence weighs against the existence of a genuine spousal relationship. This is explained by the Tribunal’s use of the evidence of domestic violence to find against the applicant. The argument therefore is that, on the Tribunal’s approach, if there is domestic violence there could be no emotional support or companionship. Therefore any domestic violence would render any relationship affected by it as “not valid” under the Act. Such an approach is said to be contrary to the intention of the legislation.
  56. With respect, this is a simplistic and disingenuous argument. If for no other reason than that, as Mr Bevan submits, it can be readily conceived that there could exist a diversity of factual circumstances where a relationship constitutes a “married relationship” within the meaning of s.5F, but also one in which domestic violence is perpetrated.
  57. This again exemplifies the flaw in the applicant’s general approach underlying all of the grounds of review. The concept of domestic violence relevantly exists as one of the requirements set out in cl.820.211(8). There is no reference to domestic violence in reg.1.15A which sets out the conditions to be taken into account when considering whether the conditions in s.5F(2)(a) to (d) are met. This section of course being concerned with the definitions of “spouse” and “married relationship”.
  58. The legislation requires the Tribunal, as the relevant decision maker, to have regard to all the circumstances. The critical flaw in the applicant’s argument is that the Tribunal did just that. Including having regard to the evidence of domestic evidence.
  59. What plainly led to the “negative” outcome for the applicant was that, in the circumstances of her case, the evidence was weighed by the Tribunal in such a way that the evidence of domestic violence “counted against her”. It is not difficult to conceive that if, for example, the evidence had shown, as well as the domestic violence, some other conduct on the part of Mr Rifahi that also showed him on occasion to have been considerate towards Ms el Rifai, then a different outcome may have ensued for the applicant.
  60. The evidence before the Tribunal was clear. There was nothing put before it by which the negative aspects ascribed to Mr Rifahi could also be counterbalanced by something positive.
  61. It was not the Tribunal’s approach that was erroneous. The overwhelming part of the evidence before the Tribunal was put by Ms el Rifai and others on her behalf. Ultimately, the Tribunal could only proceed on the evidence before it. I cannot see that the Tribunal misconstrued or misapplied any of the relevant statutory and regulatory provisions. Ground one is not made out.
  62. In ground four the applicant complains of jurisdictional error on the part of the Tribunal because its decision was said to be based on a finding of fact that was irrational, illogical or not based on findings or inferences of fact supported by logical grounds.
  63. This illogical or irrational finding was said to be the Tribunal’s finding that Mr Rifahi and Ms el Rifai did not commence a relationship contemplated by s.5F of the Act and reg.1.15A and cl.820.211.
  64. The illogicality or irrationality is said to be explained as follows. The Tribunal made an adverse credibility finding in relation to the applicant. It used this finding to conclude that the applicant and Mr Rifahi had not commenced a spousal relationship.
  65. Yet the Tribunal also, inconsistently and irrationally and illogically it was said, made a number of “positive”, or at least not “negative”, findings. Amongst these were that the applicant and Mr Rifahi met in Lebanon and were committed to commencing a spousal relationship, they were legally married, they brought furniture together, they rented an apartment, they went through a marriage ceremony in front of friends and family, and there was some evidence of the sharing of financial resources.
  66. Mr Reynolds submitted that the Tribunal’s irrational and illogical approach is encapsulated in ([61] at CB 170):
  67. Mr Reynolds referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 115 ALD 248; (2010) 266 ALR 367 (“SZMDS”) in support of the proposition that a decision affected by irrationality or illogicality could reveal jurisdictional error. There was no dispute between the parties on this point.
  68. There was some discussion at the hearing as to the exact nature of the test to be applied (whether what was relevantly said by Gummow ACJ and Kiefel J or Crennan and Bell JJ should apply). However what was clear was that the applicant’s argument proceeded on the basis that the Tribunal’s decision was illogical and irrational (in the way referred to above – the “inconsistency” of the adverse credibility finding in light of the other “positive” findings), such that no rational or logical decision maker could have made it.
  69. It must be said that, at first blush, Mr Reynolds’ argument appears to have some force. For example, the Tribunal found that they were married and commenced living together ([48]). Yet the Tribunal then found that it doubted that they were in a spousal relationship because the applicant was found not to be a witness of truth ([50]), which ultimately led to a finding that the applicant was never in a spousal relationship with Mr Rifahi ([55]).
  70. The answer, again, is to be found in the relevant legislation and regulations. It is the logic and rationality of the statutory/regulatory scheme that forms the basis for this consideration. Or more pointedly, whether the Tribunal reasoned in a logical or rational fashion must be assessed in the context of the legislative scheme which dictates its actions.
  71. In this regard the legislation requires the Tribunal to have regard to all the circumstances before it. It must have regard to the matters set out in reg.1.15A(3). This scheme does not posit a valid marriage in the sense of a marriage pursuant to the Marriage Act. The relevant test is a “married relationship” for the purposes of the Act. That is the Migration Act.
  72. When regard is had, therefore, to the circumstances as presented, including the fact of the celebration of the marriage under the Marriage Act and the existence of all the other “positive” factors, the Tribunal’s reasoning nonetheless can be seen to follow the “logic” of what is set out in the relevant legislative scheme.
  73. The relevant legal test is not whether the Tribunal came to the “correct” decision. Nor whether the Court on any objective basis could have found differently or even felt that the Tribunal should have found differently.
  74. As made clear by Crennan and Bell JJ (at [130] of SZMDS), for the relevant finding or findings to be found illogical or irrational, that is for the applicant to succeed now, the Tribunal’s decision must be “one at which no rational or logical decision maker could arrive on the same evidence”.
  75. As Haydon J said (SZMDS at [78]), the issue may be one on which minds may differ, that does not make the Tribunal’s decision illogical.
  76. When the Tribunal’s analysis is understood in light of the statutory and regulatory requirements, all the circumstances to which it must have regard, the evidence presented and the fact that it was required to assess the validity of the marital relationship for the purposes of the Migration Act (in the way that the Act guided and shaped the framework of that analysis) and not on some other objective basis or in light of some other Act, then, while a different Tribunal may indeed have come to a different view, what this Tribunal found, and the basis on which it found it, was reasonably open to it.
  77. The “positive” factors and findings which Mr Reynolds says should have logically and rationally led it to a positive outcome for the applicant needed to have been balanced out against not only the “negative” of the adverse credibility finding, but the nature of the other evidence before the Tribunal. Whether a married or spousal relationship for the purposes of the Act existed required the Tribunal to have regard to all the circumstances before it. Further, that regard was fashioned by the relevant regulatory framework.
  78. Within this framework it was reasonably open to the Tribunal to balance the adverse credibility finding with other circumstances which went to the issue of whether a marital relationship for the purposes of the Act existed.
  79. Ultimately, and on balance, the Tribunal was not satisfied that the relationship had the qualities identified in reg.1.15A. This in turn led it to find that the applicant did not satisfy cl.820.211(8). The basis for this finding arose from the Tribunal weighing the factors set out in the regulations and the circumstances as they arose from the evidence before it.
  80. The adverse view of the applicant’s credibility arose from the evidence presented, largely by the applicant herself. The applicant’s view of the relationship, her evidence of it, was certainly relevant to the statutory and regulatory task set for the Tribunal. What she said about it and what the Tribunal made of it were certainly elements of the circumstances before it.
  81. Ultimately, while minds may differ, the weighing of all the circumstances leading to its conclusion was reasonably open to the Tribunal, particularly when regard is had to the relevant statutory and regulatory framework that the Tribunal was required to operate in.
  82. The Tribunal operated within the “logic” set by that framework. No error is revealed in these circumstances. Ground four is not made out.

Conclusion

  1. With the benefit of legal representation the applicant has vigorously pressed four grounds. None of the grounds reveal jurisdictional error in the Tribunal’s decision. The application therefore is to be dismissed.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate:


Date: 17 January 2011

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