Hamie v Minister for Immigration & Multicultural Affairs [2001] FCA 86 (9 February 2001)

Last Updated: 16 February 2001

FEDERAL COURT OF AUSTRALIA

Hamie v Minister for Immigration & Multicultural Affairs [2001] FCA 86

MIGRATION - application to review decision of Migration Review Tribunal - Spouse (Provisional) (Class UF) visa subclass 309 - "married relationship" - whether mutual commitment - whether relationship genuine and continuing - question of fact

Migration Regulations 1994 (Cth) reg 1.15A(1A)(b)(i) and (ii)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 applied

Minister of Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 at 552 applied

IBRAHIM HAMIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. V 719 OF 2000

HEEREY J

9 FEBRUARY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 719 OF 2000

BETWEEN:	IBRAHIM HAMIE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	9 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs to be taxed, including reserved costs.

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	V 719 OF 2000

BETWEEN:	IBRAHIM HAMIE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	9 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant, Mr Ibrahim Hamie, seeks review of a decision of the Migration Review Tribunal made on 27 September 2000 which affirmed a decision of a delegate of the Minister to refuse the grant of a Spouse (Provisional) (Class UF) visa subclass 309 to the visa applicant Nadia Amine El-Sayed. The visa applicant was said to be the spouse of the applicant. The critical question was whether the applicant and the visa applicant were in a "married relationship", which included the requirements that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them was genuine and continuing: Migration Regulations 1994 (Cth) reg 1.15A(1A)(b)(i) and (ii).

2 The evidence before the Tribunal was that the applicant first met the visa applicant in Lebanon in 1990. On 15 September 1992 the applicant married Latife Hamie, an Australian Lebanese woman, in Lebanon. There was some discussion about a proposed marriage of the applicant and the visa applicant in the following year but that did not proceed because the visa applicant married someone else, one Moussa Amine El-Sayed, on 19 February 1993. On 10 May 1993 the applicant arrived in Australia on a spouse visa. It is of some significance that he remained in Australia for the following six years, and did not return to Lebanon until 4 January 1999 and then only for some five weeks.

3 After his arrival in Australia in 1993 the applicant's then wife bore a child and subsequently twins. The applicant became an Australian citizen. On 2 October 1996 the visa applicant divorced her husband and on 17 January 1998 the applicant divorced Latife Hamie. On a date which does not emerge in the evidence the applicant was quite seriously injured in a car accident.

4 On 28 February 1998 the applicant married the visa applicant by proxy in Lebanon. It was accepted by the Tribunal that this was a valid marriage ceremony according to Lebanese law.

5 On 11 March 1998 the visa applicant applied to the Australian Embassy in Beirut for a spouse visa. She was later interviewed by officers of the Department of Immigration and Multicultural Affairs in Beirut. On 9 June 1998 an officer at the Australian Embassy in Beirut telephoned the applicant's home number in Melbourne. A female answered the call and identified herself as Latife Hamie. Upon the officer telling her that the Department had a letter from her cousin in Lebanon and asked if this was her address where she lived with her spouse Hamie Ibrahim she said, "Yes, this is where we live." On 24 August 1998 the applicant telephoned the Beirut embassy and said that he saw Latife Hamie when he visited their children every week or two. He visited their children at her house as he had done so every two weeks for the last two years. The officer advised the applicant of the telephone conversation with Latife Hamie on 9 June. The applicant then said that he and Latife Hamie had lived together until two months previously. The applicant said that Latife Hamie looked after him because he had got "a crook leg".

6 On 16 December 1998 the visa application was refused. The applicant then went to Lebanon on 4 January 1999, his stated reason being "to push delegate to approve visa".

7 In its decision the Tribunal referred to the relevant legislation and a number of authorities. It noted that in determining questions under reg 1.15(1A) it was required by reg 1.15A(3) to consider a list of factors, specified in pars (a) to (d), that are indicators of a married relationship.

8 As to the financial aspects of the relationship (par (a)), the Tribunal noted that neither party owned any significant assets and do not have any significant assets either jointly, pooled or otherwise, nor any joint liabilities or mutual legal obligations other than those arising from marriage. The criterion of the "nature of the household" (par (b)) the Tribunal thought largely irrelevant as there were no children for which either of them were responsible save for when the applicant had access to his children.

9 As to the social aspects of the relationship (par (c)) the Tribunal noted that the parties represented themselves as a married couple, albeit that such representations can only have occurred in joint visits to the visa applicant's family and friends. Their joint planning of social activities could only have occurred in the short five-week period when the applicant went to Lebanon. No evidence was offered on either point.

10 As to the parties' commitment to each other (par (d)) there was evidence of the trip to Lebanon by the applicant. This, the tribunal noted, was for a five-week period two years after the marriage. The Tribunal accepted that the call, despite the applicant's claim not to know this, that the Department did call his home and found the former spouse living there. The Tribunal said:

"The (applicant's) failure to attend the wedding, the absence of proof of telephone calls and the paucity of correspondence and photographs do not illustrate a commitment to each other. ... The presence of the (applicant's) former wife in his home also suggests that the application does not meet the `exclusion of all others' part of the definition of spouse in regulation 1.15A(1)(b)(i)."

11 The Tribunal then made some comments as to the credibility of the applicant. It noted that his attitude throughout the hearing was:

"both casual and evasive, using broad statements (often in English) in an effort to cover gaps in his evidence or areas that went against him."

The Tribunal gave a number of examples. It thought that the lack of proof of telephone calls and correspondence was also significant, particularly as the same point had already been brought to the applicant's attention in the delegate's interview and in the reasons for refusal of the visa. He had ample time to address what he must have realised was a problem with his application.

12 Finally, the Tribunal observed that it was not satisfied that the presence of the former spouse in the applicant's home for a substantial period after his marriage to the visa applicant was for her to nurse him. The Tribunal said:

"Her presence paints an adverse picture of his story that is reinforced by his false assertion at the hearing that he had been staying at her home. On the basis of this evidence the Tribunal is not satisfied that the parties have established that they have `a mutual commitment to a shared life as husband and wife to the exclusion of all others' or that their relationship is `genuine and continuing.'"

13 The Tribunal concluded:

"In the circumstances the visa applicant has failed to establish that she meets the definition of spouse within the meaning of regulation 1.15A and therefore does not meet the requirements for the grant of the visa."

14 In the circumstances it was not necessary to consider the other visa criteria.

15 In the applicant's amended application for review, the ground raised was

"On the evidence the tribunal was wrong in finding that the marriage of the applicant was genuine."

16 Looking at the grounds available for review under s 476 of the Migration Act 1958 (Cth) the only ground which could support such a claim was that there was "no evidence or other material to justify the decision" (s 476(1)(g)) the decision being based on existence of a particular fact which did not exist: s 4786(4)(b).

17 On the hearing before me the applicant, who was not legally represented, said through an interpreter that there was "a lot of misdescription in the evidence". There were false allegations. The marriage was "a very legal marriage and a just marriage". The applicant attempted to reagitate some evidentiary matters, for example, in relation to the telephone call, and problems that he had as a result of the car accident. He said that marriage by proxy was normal.

18 It is quite clear to me that there was ample evidence for the Tribunal to reach the conclusion it did. The function of the Court on a review such as this is not to revisit the merits of the factual findings of the Tribunal. The ground raised here cannot be made out if there is at least some evidence upon which a challenged finding has been made: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356; Minister of Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 at 552.

19 Insofar as if there was any conflict on the evidence, the Tribunal was not bound to accept the version advanced by the applicant. It was entitled to rely on its assessment of his credibility.

20 The application will be dismissed with costs

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms H Riley
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 February 2001
Date of Judgment:	9 February 2001