Alshamali v Minister for Immigration & Multicultural Affairs [1999] FCA 279 (23 March 1999)

Last Updated: 24 March 1999

FEDERAL COURT OF AUSTRALIA

Alshamali v Minister for Immigration & Multicultural Affairs [1999] FCA 279

IMMIGRATION - cancellation of subclass 100 spouse visa - bigamous marriage - whether, having regard to the regulations dealing with de facto relationships, the Tribunal erred in stating that on the correct information the applicant "would not have been eligible for the grant of a Spouse visa" - circumstances in which, in the context, the word "eligible" was read as referring to the application actually made - application dismissed.

Migration Act 1958 (Cwth) - ss 101, 102, 109(1)(c)

Migration Regulations - regs 1.15A, 2.41

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, applied

Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519, referred to

Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480, distinguished

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, applied

SALEEM ALSHAMALI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1059 of 1998

Burchett J

23 March 1999

Sydney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1059 of 1998

BETWEEN:	SALEEM ALSHAMALI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BURCHETT J
DATE OF ORDER:	23 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1059 of 1998

BETWEEN:	SALEEM ALSHAMALI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BURCHETT J
DATE:	23 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Immigration Review Tribunal affirming the cancellation of the applicant's visa, which was a subclass 100 Spouse visa issued by the Australian embassy in Port Moresby on 16 May 1995.

2 It is necessary to recount briefly the circumstances. The applicant, Mr Alshamali, was born in Kuwait on 24 June 1965, and later became a citizen of Jordan. On 11 January 1991, he married one Wafer Hussain, by whom he has three children, but in late 1993 they separated. She and their children live in Jordan. According to an explanation he gave after he had been notified of the intention of the Minister for Immigration and Multicultural Affairs to cancel his visa, the applicant and his wife kept their separation secret to avoid the stigma of divorce, and they did not obtain a legal divorce.

3 On 11 October 1994, the applicant successfully sought a Visitor visa for Australia at the Australian embassy in Oman, indicating in the application form that he had never been married. The stated purpose of his visit to Australia was to see his sister, who was then living here. Having arrived in Australia on 10 November 1994 with permission to remain for three months, Mr Alshamali, on 20 December 1994, went through a ceremony of marriage with one Sukran Baran at Wylie Park near Sydney. Thereafter, on 13 February 1995, he obtained an extension of his visa for a period of two months, and on 6 April 1995 Miss Baran and he left Australia for Papua New Guinea. On 7 April 1995, he applied at the Australian High Commission in Port Moresby to migrate to Australia as the spouse of an Australian citizen.

4 It should be made clear that there is an express finding of fact by the Tribunal that the applicant had not told Miss Baran that he was already married, with the consequence that their union was bigamous. In the Application for Migration to Australia, the applicant placed the letters and symbol "N/A" against the provision in the form for the supply of details of "Children under 18", and completed the section of the form headed "Marriage status" to show that he was married on 20 December 1994. He showed no details to suggest a de facto or common law relationship and made no claim on that basis, a basis for which the form did provide. In response to a direct question contained in the form: "Have you previously been married or been in a de facto/common law relationship?" he indicated in the appropriate manner, by placing a cross in a circle, that the answer was "No". Consistently with that answer, he inserted "N/A" against the provision made in the form for "Name of previous spouse", and supplied no details of any children. In response to a question in the form: "If you are living in a de facto/common law relationship, are you still legally married to another person?" he supplied the letters and symbol "N/A". The one class of visa applied for was described in the application as "SPOUSE", and the spouse was identified as Sukran Alshamali, her name before marriage being shown as Sukran Baran. She was correctly stated to be an Australian citizen aged 25 years.

5 On 16 May 1995, the applicant was granted a subclass 100 Spouse visa, and he returned to Australia on 17 May 1995. It appears that his purported wife Sukran had already returned to Australia early in May. The Tribunal has found that the applicant's "efforts to be re-united [with] her on his return from Papua New Guinea appear ... to be minimal when considered against his claims as to his personal and financial investment in the marriage. The Tribunal does not accept that Mr Alshamali was truthful to [her] about his circumstances nor that he has been entirely truthful in his evidence to the Tribunal." The applicant no longer shares any relationship with Miss Baran, from whom, on the evidence, he secured a "divorce". According to the applicant, they separated in December 1995. According to Miss Baran, the relationship had never been a genuine relationship of a matrimonial kind.

6 Information having been furnished to the department by two anonymous letters, apparently from the same person, an investigation was initiated, which confirmed the applicant's married status and the existence of his children. The department initiated the action envisaged by the provisions of the Act which I summarized in Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519 at 526 (see also the judgment of French and North JJ in the same case on appeal at [1999] FCA 84 para 30):

"Sections 101-105 (inclusive) require a non-citizen, inter alia, to give no incorrect answers in a form of application for a visa or in a passenger card; not to give an officer a `bogus document'; if circumstances change, to correct an answer to a question in the application form which is incorrect in the new circumstances; and if he becomes aware that an answer in the form or passenger card or certain other information given by him `was incorrect when it was given' to notify an officer. Section 107 then provides that `[i]f the Minister considers that the holder of a visa who has been immigration cleared' did not comply with any of these provisions, the minister may give notice accordingly, inter alia, requiring a written response within 14 days and stating that the minister will consider cancelling the visa. By s 108, the minister must consider any response and decide whether there was non-compliance in the way described in the notice, and by s 109, if the minister decides there was non-compliance, the power arises to cancel the visa."

In the present case, the visa was cancelled under s 109; the applicant applied to the Tribunal for review; the Tribunal affirmed the decision; and the present application to the Court has been brought, in which error of law on the part of the Tribunal is alleged.

7 The argument put for the applicant centred upon one aspect of the Tribunal's reasons. It was said there was an error of law in respect of the basis on which a subclass 100-Spouse visa could be obtained. The primary submission was that the error of law was clear; but alternatively it was said that the reasons were so obscure on the point as to be inadequate. What gave rise to these arguments was the Tribunal's attempt to comply with s 109(1)(c) which requires it, before exercising the discretion to cancel the visa, to "hav[e] regard to any prescribed circumstances". By regulation 2.41 of the Migration Regulations, the following circumstances were prescribed:

"(a) the correct information;

(b) the content of the genuine document (if any);

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community."

"Of course," as the Full Court said in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194, "an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters." The Full Court went on to refer to authority for the proposition that such an obligation may have the effect of requiring the administrator to take the specified matters into account, though not exclusively, and to give weight to them as a fundamental element in making his determination.

8 In the present matter, the Tribunal took the course of describing the background; recounting the evidence in some detail; stating the nature of its task (as to this statement no complaint is made) and noting the applicant's concession "that he did not comply with ss 101 and 102 of the Migration Act in relation to his application for permanent residence on spouse grounds" as he "admits that he gave incorrect answers when he declared that he was single and had no children", as well as "incorrect answers on his passenger card when he entered Australia on 10 November 1994 by stating that he was `never married'." The Tribunal then considered the circumstances in terms of regulation 2.41, under a series of headings corresponding to the paragraphs of that regulation. It is necessary to quote part of this portion of the reasons:

"(c) The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

Had the Department been informed of Mr Alshamali's marriage he would not have been eligible for the grant of a Spouse visa.

(d) The circumstances in which the non-compliance occurred

The Applicant asserts that his relationship with Ms Baran was at all times a genuine one and that it was not contrived for the purposes of migration to Australia. However, the Tribunal considers the circumstances of the relationship with Ms Baran to be only one factor relevant to the cancellation. Clearly, there is an abundance of conflicting evidence about this relationship. It is not necessary to make findings as to the genuineness of this marriage but rather to consider how the circumstances of the marriage and the visa application may be relevant to the exercise of discretion by the Tribunal to cancel the visa. ... Given that Mr Alshamali is an educated man who has been involved in business and legal affairs internationally the Tribunal does not accept that he did not know that he was misleading the Department in a way which was relevant to the grant of the visa that he sought. In addition, his efforts to be re-united with Ms Baran on his return from Papua New Guinea appear to the Tribunal to be minimal when considered against his claims as to his personal and financial investment in the marriage. The Tribunal does not accept that Mr Alshamali was truthful to Ms Baran about his circumstances or that he has been entirely truthful in his evidence to the Tribunal. The Tribunal is of the view that the circumstances of the non-compliance with ss 101 and 102 of the Act were deliberate and contrived by Mr Alshamali to further his own interests in remaining in Australia. The Tribunal is of this view regardless of whether Mr Alshamali may also have intended a genuine relationship with Ms Baran."

9 After dealing with each of the matters specified in the regulation, the Tribunal returned briefly to the question of the conclusion which it ought to reach. It said:

"The Tribunal has taken the above factors into account and considered the seriousness of the breach in this case. Mr Alshamali falsely declared that he was not married and failed to inform the Department of the existence of his wife and three children in Jordan. The Tribunal is of the view that this was a serious breach. The undisclosed facts are central to the criteria for the grant of a spouse visa and the visa would clearly not have been granted had they been known. He is no longer in a relationship with Ms Baran and his family ties to Australia are also diminished with the relocation of his sister overseas."

After some further remarks, the Tribunal affirmed the decision to cancel the visa.

10 The proposition put by counsel for the applicant is that the word "eligible" in the Tribunal's response to paragraph (c) of regulation 2.41 involves an error of law. It is pointed out that, although the visa is called by a name focussing upon the word "spouse", a person involved in a de facto relationship may be qualified to receive it. At the relevant time, regulation 1.15A, as it stood by virtue of the amendments made by Statutory Rules 1994 No. 376, provided:

"1. For the purposes of these Regulations, a person is the spouse of another person if:

(a) the 2 persons are:

(i) married to each other under a marriage that is recognised as valid for the purposes of the Act; or

(ii) de facto spouses of each other, as set out in subregulation (2); and

(b) the Minister is satisfied that:

(i) the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between the 2 persons is genuine and continuing; and

(c) the Minister is satisfied that the 2 persons are:

(i) living together; or

(ii) not living separately and apart on a permanent basis."

Sub-regulation (2) went on to define a de facto spouse, and sub-regulation (3) went on to specify various matters to which the Minister must have regard in forming an opinion for the purposes of paragraphs (b) and (c) of sub-regulation (1), including:

"(d) the nature of the persons' commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long-term one."

11 According to counsel for the applicant, the "likely effect on a decision to grant a visa ... of the correct information", in this case, would not have been to render the applicant ineligible, but to have required consideration to be given to his position as a de facto spouse. Counsel says the Tribunal overlooked this aspect of the matter. He says his contention is confirmed by the Tribunal's expression of its view that no finding was required "as to the genuineness of this marriage". I should say at once that I do not think the reference to the genuineness of the marriage has anything to do with the point. In the context, the Tribunal, which had just mentioned the applicant's submission that the marriage "was not contrived for the purposes of migration to Australia", was referring to the "genuineness" of the applicant in this sense only in the passage to which attention has been directed. It went on to make clear its conclusion that, whether or not the applicant desired a genuine relationship with Miss Baran, "the circumstances of the non-compliance with ss 101 and 102 of the Act were deliberate and contrived by [him] to further his own interests in remaining in Australia".

12 So the question to be faced is simply what the Tribunal meant by its use of the word "eligible". It would be extraordinary if it really overlooked the availability, in appropriate circumstances, of a spouse visa to a person in a de facto relationship. The Tribunal was constituted by two members, so the proposition involves two persons, both of whom were presumably expert in immigration matters, overlooking requirements that had been in existence for some years. However, counsel answers this difficulty by pointing to Statutory Rules 1997 No. 92, which amended regulation 1.15A, as from 1 May 1997, to introduce a new requirement for a relevant de facto relationship that it must generally have subsisted "for the period of 12 months immediately preceding the date of application". The suggestion thus becomes - and it is scarcely less difficult - that the two members of the Tribunal, sitting less than eighteen months after this amendment was made, overlooked that a different position had applied when the applicant's application was considered early in 1995.

13 Counsel for the respondent put forward an explanation of the use of the word "eligible" which did not involve any assumption of error on the part of the members of the Tribunal. In essence, her argument was that the Tribunal was seeking to apply paragraph (c) of regulation 2.41 to the particular application for a visa in question. That was the relevant matter. The application, as it had been made, was dependent on the alleged marriage. In terms of regulation 1.15A, an allegation of a de facto relationship would have been inconsistent with the allegation of a marriage, since regulation 1.15A(2)(a)(ii) prescribed, as an ingredient of a de facto relationship, that the parties "are not married to each other under a marriage that is recognised as valid for the purposes of the Act". So, any application for a Spouse visa based on a de facto relationship would have had to raise that ground expressly as an alternative; a de facto relationship could not have been raised in any other way, and as it was not expressed as an alternative, it was negatived by the express allegation of a marriage. When the Tribunal is understood - and this is how it should be understood - as directing itself to the application which had actually been made, its statement of the likely effect of the correct information cannot in strictness be faulted.

14 But the substance of this issue is that the grant of a Spouse visa required the Minister to be satisfied of the "mutual commitment [of the parties] to a shared life as husband and wife to the exclusion of all others", involving an examination of "the nature of the persons' commitment to each other", including the duration of the relationship and the emotional support derived by each party from it. The gravest questions would obviously have arisen about these matters the moment it was disclosed that Mr Alshamali had deceived Miss Baran into taking part in a bigamous marriage. Having regard to what happened almost immediately after the visa was granted, the Tribunal had every reason to think that any alternative application based on the relationship such as it was, and assuming it was genuine on Mr Alshamali's part, would not have withstood examination. In my opinion, there was no error in the Tribunal's ultimate conclusion, which was one of fact:

"The undisclosed facts are central to the criteria for the grant of a spouse visa and the visa would clearly not have been granted had they been known."

On that basis, it is not argued that the decision to cancel the visa was not open.

15 In very different circumstances, in Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480, I held that a decision should be set aside which treated a spouse as "not eligible" for a grant of resident status although there was actually a discretion as to that matter. But I made it clear (at 491) that this conclusion depended on the context in which the expression "not eligible" had been used. In the present case, I think the context shows clearly that the Tribunal's conclusion was one of fact, and was fairly open to it. To read error into the word "eligible" would be to strain to perceive a technical defect in the decision, contrary to the substance of what the reasons of the Tribunal fairly convey, so as to conflict with the principle laid down in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, as approved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271.

16 For these reasons, the application is dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated: 23 March 1999

Counsel for the Applicant:	Mr C Colborne
Solicitor for the Applicant:	Kessels & Ass.
Counsel for the Respondent:	Miss V Hartstein with Miss S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 March 1999
Date of Judgment:	23 March 1999