Alkhousi v MIMIA [2004] HCATrans 239 (23 June 2004)

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Alkhousi v MIMIA [2004] HCATrans 239 (23 June 2004)

Last Updated: 5 August 2004

[2004] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B107 of 2002

B e t w e e n -

MOHANAD ALKHOUSI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 1.09 PM

Copyright in the High Court of Australia

MR M. ALKHOUSI appeared in person.

MR P.G. BICKFORD: If it pleases the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

CALLINAN J: Yes, Mr Alkhousi, go to that - - -

MR ALKHOUSI: I would like my wife to sit next to me, just for English - - -

CALLINAN J: Yes, do that. Yes, Mr Alkhousi.

MR ALKHOUSI: I am going to read from this statement here just because the time is short, so I will read through those documents and I will start to relate it to document inside the application book. My oral argument is related to whether a delegate for the respondent made the wrong decision on 22 June 2000 by refusing to grant the spouse visa to me as the applicant and whether I was a spouse for the sponsoring spouse in accordance with the definition of spouse, regulation 1.15A of the Migration Regulations 1994 and whether the wife did withdraw her sponsorship before the decision of 22 June 2000 had been made. This appeal is related to the subclass 100 spouse visa of the Migration Act 1958 and Schedule 2 of the Regulations class 100.11, 100.221 and 100.226.

First a correction here for two wrong dates mentioned as a record of this case. First, I married Ms Clarke on 2 June 1996 and not 1998 and divorced her on 10 May 2001, as is mentioned in Form 39 of the Family Court, page 66 of the applicant’s statutory materials, last line. Prior to this date of 10 May 2001, my relationship passed through some tension and good times, but unfortunately the Minister’s delegate made a decision on 22 June 2000, 11 months before the divorce, that I was not the spouse of the sponsoring spouse and that the wife had withdrawn her sponsorship.

There were before the decision-makers in this case, the Minister’s delegate and later on the immigration review body, Migration Review Tribunal, then the Federal Court, a number of written documents and genuine written evidence to rely on in making the decision, but the MRT did pick up two written documents as the primary evidence. I am quoting from the first one. It is the one written by the wife on 1 February 1999. So please see application book page 6, line 3.

CALLINAN J: You go ahead.

MR ALKHOUSI: Are you with me?

CALLINAN J: Yes.

MR ALKHOUSI: You would like to check the application book?

CALLINAN J: No. Which page did you say, I am sorry? Did you want us to look at page - - -

MR ALKHOUSI: Yes, could you please look at page 6 in the application book.

CALLINAN J: We have that.

MR ALKHOUSI: All right. It is page 6, third line. That is record of Migration Review Tribunal. The third line here mentioned:

On 1 February 1999, the visa applicant’s sponsor wrote a letter to the Department stating –

All right, okay. Secondly, the MRT record mentioned the details of the second document written by the Department’s officer on my behalf. So please see application book page 5, just the page before at the far end of the document, it is written “On 22 January 1999”. The date mentioned in this record which stated that I visited the Department office on 22 January 1999. Not only did MRT choose those two pieces of evidence and details, but the Federal Court judge in his reasons for judgment also did the same and copied and pasted the same paragraph. Would you please see application book page 16. It is paragraph 18, the third line.

According to those two pieces of evidence the Full Federal Court affirmed the decision of the single judge. Let me highlight that the Minister’s delegate made his decision solely on one piece of evidence which is the letter written by the wife dated 1 February 1999 which is the same from page 6, the third line. That is the first one. If you like, you can go also to the record of decision which is in the applicant’s material, page 37. That is going to be the record of decision of the Minister’s delegate. That is the decision and it is the following page, page 38, when you look at the “CASE HISTORY”, the second paragraph. It is said here in the second paragraph:

The applicant arrived in Australia on the 6 August 1997, and on 1 February 1999 the sponsor, Ms Donna Clark wrote to this office advising that she and her spouse had separated due to undisclosed difficulties.

Now, with this in mind, the wife evidence, the member wrote that.....exactly, which is again on page 6 in the application book – it is the member of Migration Review Tribunal:

On 1 February 1000, the visa applicant’s sponsor wrote a letter to the Department stating “I have separated from my husband .....” and ..... “I do not know the future of our relationship as many of the problems are from cultural differences, which are very difficult to resolve.”

The dots were obviously depicting missing information and there were no further dots in the remainder of the six-page statement outlining her reasons and decisions.

I am just wondering, your Honours, if the member of the Migration Review Tribunal had possibly run out of ink because the original statement did not contain dots depicting unknown information. They actually contained information where the member had presented dots. The original statement read as follows – can I take you please to the applicant’s material on page 44. Let us read this document:

I have separated from my husband, Mohanad Alkhousi, due to difficulties arising since moving to Australia.

That is difficulties arising to Australia is related to death of our baby and other employment reasons, in permanent employment and things like that.

I do not know the future of our relationship as many of the problems are from cultural differences, which are very difficult to resolve.

So, your Honour, after I take you to this one, I read this document – we need to find out if those two evidence were before those decision-makers comply with regulation 1.15A, which mentions the definition of the spouse. This definition.....by the single judge of the Federal Court in his decision of 30 April 2002. So his decision was in application book, in page 15 of the application book, second part. Let us read this one more time. That is the “spouse” definition here. I would just like to highlight the last one:

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

Back here and I would say it is not that somebody attending counselling with Relationships Australia, that is related to the document of my wife when she is attending counselling with Relationships Australia. So I will highlight here again the word “relationship”. So at the time she wrote that letter she said she attending counselling with Relationships Australia, so that does not consider permanent separation, so that we would have no intention to separate permanently.

Furthermore, before the related date of both letters, of 22 January and 1 February 1999, I started working in another city, Logan City, on 16 January 1999. I did inform the Department about this work and the address I move to in my three letters were before the courts below and were dated 10 March 1999 which is available in applicant’s material, page 35, third paragraph, line 6. If we count six lines after the word “BBQ”:

found part time job – 16 Jan – in tennis club (springwood), teaching young children –

so it is Springwood in Logan City, and actually that is a tennis job. It mean that I have to go to work twice a day. It is a broken shift where I have to go in the morning and evening, two hours each. So you cannot drive a six-cylinder car every day one hour, one hour and a half, to go to another city, so you have to move to another city. So we are not separated. That is to explain that we were not separated permanently but for work-related matters we did live in two different cities.

Let us look at the second letter dated 23 March 1999. That is my second letter to the Department. Please see the applicant’s material on page 42, first line. I attached here my new address and at the bottom my work address. It says “420 springwood road, springwood”. This address is stated clearly and continued as the letter dated also – that is address of where I moved in my new house. It is a letter dated 15 June 1999 and that is the address of my house actually. It is mentioned in applicant’s material page 33. Here is mentioned – the address is just before the end, “14 kenny street, trinder park”. That is also in Logan City. At the time I was living in another city.

Can I ask my wife to explain the idea in better English language? I can explain it, but maybe you can get it from her easier. Would you mind?

CALLINAN J: Yes, you may do so.

MS G. DUNCAN: Okay. I will just make a point that the reason that his wife could not move with him at the time was because the employment itself was not permanent and he needed to make sure that it was going to be permanent and she was working near the home in Toombul and so for her to have left her job it would not have been feasible at the time.

MR ALKHOUSI: You can see now on page 33 – we are now on page 33 which we were before of the applicant’s material. This document which I filed proves that there is a relationship was going well a few months after first two major evidence brought by decision-makers and the whole court processing.

So we must.....now about the first evidence is of wife evidence and that is a major evidence. Now, we talk about the second evidence where before the court – actually before I go to second evidence, I would mention here is my wife is actually Australian citizen and Australian-born, and applicant material has her birth certificate. You can ask her if we had any things related to cultural differences or anything. We have been married for two years and we have a son one year old and we have at all no touch of something called cultural differences. So just wife mention anywhere at the time, the ex-wife who mentioned cultural differences, and that does not exist and you can ask her as she is a witness here and you can ask her any questions, she explain to you two years of perfect relationship. So no things called cultural differences. May we continue?

CALLINAN J: Yes, Mr Alkhousi.

MR ALKHOUSI: Okay. Now we go for second evidence. From application book page 5, at the far end the member wrote:

On 22 January 1999, the visa applicant went into the Brisbane office of the Department and informed them that he had moved to a different address and that he and his wife had temporarily separated –

Well, we had just better have a quick look at this document and see what is going on with this document. So this document is actually available on page 31 of the applicant’s material. We will notice quickly that there is no 22 January. We will notice that the date is 12 January. So that is wrongly dated by the Department. There was a correction for that later date and amended information to its content that should be taken into account. That is the document in the following page – please see page 32 from the applicant’s material. We will find the correction of the date in this document, and this document dated 29 January 1999. In the second paragraph the DIMA officer wrote:

He also advised that he is in the process of reconciling with his wife and anticipates that he and his partner will soon be sharing the same address as outlined below –

So this is a correction of the date. It is written here that:

Mr Mohanad ALKHOUSI, visited our office to advise me of the incorrect date on the File Note which I typed on 22 January 99. The date appeared on that document as 12 January 99.

All right. The decision-makers in DIMA, Migration Review Tribunal, Federal Court of Australia and Full Federal Court of Australia relied on incorrect evidence and ignored the correction. So they relied on wrong document, wrong content and wrong date and ignored the correction, and the correction was before them all the time. I request the High Court to take the corrected one with the definition of the spouse of regulation 1.15A and the decision-making.

So that is the first part of my argument. I just point out that the decision-makers in four levels before this Court they did choose two documents as evidence. Also, there was plenty of evidence before them but they did choose two to support their decision, especially on level of Migration Review Tribunal and the Minister’s delegate, one written by me and one written by the wife. The wife one show we did not separate permanently, so mine is incorrect one. So I go for the second part and I will talk here about second - - -

CALLINAN J: Your time is nearly up. When the red light comes on your time is concluded.

MR ALKHOUSI: Now, at this stage this Court needs strong evidence or a court case to rely on in order to make decision as both the Minister’s delegate and MRT had chosen two weak pieces of evidence to prove that I was not the spouse of the sponsoring spouse. The best source of evidence in family migration related matters is the Family Court, and MRT did rely on this before in matter of bringing divorce paper. Migration Review Tribunal based their judgment on the meaning of the divorce and the content of divorce and that is available in different forms in applicant’s material. So there was some argument between – it was in the summary of argument, in - - -

CALLINAN J: Yes, your time is up, Mr Alkhousi.

MR ALKHOUSI: Can I have five minutes?

CALLINAN J: No.

MR ALKHOUSI: Two minutes?

CALLINAN J: Say one more thing. What else do you want to add?

MR ALKHOUSI: Okay. On 29 August, we have here an order from Family Court and Family Court’s orders of 29 January 2001. The Family Court judge found me to be the spouse seven months after the Minister’s
delegate’s decision to not consider me as a spouse. In Part 6 of the applicant’s material, the judge wrote - - -

CALLINAN J: Yes, thank you, Mr Alkhousi, your time is up.

The applicant seeks leave to appeal from a decision of the Full Court of the Federal Court. The basis of his application is that the Full Court of the Federal Court, the Federal Court and the Migration Review Tribunal should have held that he was a spouse within the meaning of that word as used in the regulations made under the Migration Act relating to persons claiming an entitlement to a visa on the basis that such a person is a spouse.

No error has been demonstrated in the construction of the expression by the Full Court of the Federal Court. At all levels it has been held that the applicant could not satisfy the criteria in the regulations, in particular, the criteria relating to a spouse. There was evidence upon which each of the Tribunal and the courts could find that the particular criterion of spouse had not been satisfied. There is no reason to doubt the correctness of the decision of both the Federal Court and the Full Court of the Federal Court in that regard.

No other error has been demonstrated in the way in which the matter was dealt with by the Full Court of the Federal Court. Accordingly, the application must be dismissed. Do you have any applications, Mr Bickford?

MR BICKFORD: I have asked for costs, yes, your Honour.

CALLINAN J: Yes. Is there anything you can say about costs, Mr Alkhousi?

MR ALKHOUSI: .....

CALLINAN J: Is there any reason why the Court should not award costs to the respondent?

MS DUNCAN: Absolutely, and it is outlined – I am just here helping with English, but he is a bit upset now, so – I cannot understand how this – okay, there was an error in the law so I am not quite sure how this has happened, but - - -

CALLINAN J: The Court has held that there is no error in the law.

MS DUNCAN: On page – sorry, I am just not quite sure from the application book, excuse me - - -

MR ALKHOUSI: Excuse me, I have been told that I would be allowed 20 minutes since the respondent is coming to speak and I will speak five minutes, so I - - -

CALLINAN J: Mr Alkhousi - - -

MR ALKHOUSI: - - - made the decision......would listen and give me a chance to speak so.....

CALLINAN J: Mr Alkhousi, I gave you longer than 20 minutes. I am now asking - - -

MR ALKHOUSI: You made your decision before you hear me and you hear my verbal summation.

CALLINAN J: Mr Alkhousi, do you want to say anything in relation to costs?

MS DUNCAN: If you could just give us a couple of minutes, I am sorry.

MR ALKHOUSI: I have a family, I have a – I will talk about the costs.

CALLINAN J: Mr Alkhousi, I will not hear you any further in relation to anything except costs.

MS DUNCAN: This is in relation to costs.

CALLINAN J: I will have you removed from the Court if you do not abide by my direction.

MR ALKHOUSI: I am going to talk about the costs. I will speak about costs. I have a family and I have a child, one year old. The doctor said that her chances to have a baby, she has just one chance to have another baby and sooner is better and she willing to have another child. I support the family. We cannot afford such a huge – I work just – we are low income worker and we cannot afford to pay that huge costs that is going to go through. She has to stop working and she wished to have a child and it is her last chance to have a child as soon as possible. Therefore, and my case is fairer – there is plenty of sections and I wrote them here. I did not have a chance to - - -

CALLINAN J: Thank you, Mr Alkhousi. Yes, this application will be dismissed with costs. Adjourn the Court, please.

AT 1.35 PM THE MATTER WAS CONCLUDED