1419938 (Migration)

[2016] AATA 4202

1419938 (Migration) [2016] AATA 4202 (2 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nabil Elsayed Mohamed Basyouni

CASE NUMBER:  1419938

DIBP REFERENCE(S):  CLF2013/280141

MEMBER:Kira Raif

DATE:2 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 02 August 2016 at 5:09pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 21 November 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Egypt, born in January 1973. He entered Australia in April 2010 holding a Visitor visa. That visa expired in November 2010. The applicant applied for the Partner visa on 11 November 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant met Item 3001 and that there were compelling reasons to waive that requirement. The applicant seeks review of the delegate’s decision

3. The applicant appeared before the Tribunal on 2 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and a friend of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

5. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

6. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2).

   Does the applicant meet Schedule 3 criteria?

7. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant travelled to Australia holding a Visitor visa in April 2010. That visa ceased on 2 November 2010. The applicant made an application for a Student visa which was refused by the delegate and affirmed by the MRT in May 2013. The applicant sought judicial review with respect to that decision, but he withdrew the application in December 2013.

8. The Tribunal finds that the applicant last held a substantive visa when his Visitor visa expired in November 2010. He was not the holder of a substantive visa at the time he made the application for the Partner visa in November 2013. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

9. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).

10. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that the last substantive visa held by the applicant was cancelled and the Tribunal has made a decision to set aside and substitute the cancellation decision.

11. The Tribunal has found that the applicant ceased to hold a substantive visa when his Visitor visa expired in November 2010. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in November 2013, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

12. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

13. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

14. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

15. In his written submission to the delegate concerning the Schedule 3 waiver the applicant outlined his immigration history and the history of his relationship with the sponsor. He claims that he does not have a visa because of factors beyond his control. In his written submission to the Tribunal the applicant also referred to his reliance upon the erroneous advice of his migration agent, stating that he acted on that advice. The applicant repeated these claims in his oral evidence to the Tribunal. The Tribunal does not consider that anything to which the applicant refers in these submissions establishes that the applicant was not the holder of a substantive visa because of factors beyond his control. He refers to the refusal of his Student visa application and his application for judicial review in relation to that decision. The applicant has not established that this decision was wrong. While the refusal of the Student visa may not have been within the applicant’s control, neither can there be any expectation that a visa would be granted. The applicant notes that the DIBP advices on its website that an application for a Partner visa may be lodged onshore but there is nothing erroneous about that advice. The applicant was eligible to make an application onshore, he did so and that application is valid. There is no guarantee, nor any indication on the Department’s website, that such an application must be successful. Significantly, the Tribunal is mindful that the issue in Item 3001 is not whether the applicant ceased to hold a substantive visa due to factors beyond his control. None of the matters identified by the applicant, including his immigration history and previous applications and his reliance on the migration agent’s advice, give rise, in the Tribunal’s view, to the existence of compelling reasons for the waiver by the time the present application was made or since that time.

16. The applicant refers to the existence of a genuine relationship with the sponsor. A number of documents have been provided concerning the various aspects of the relationship and additional materials have been submitted to the Tribunal. The applicant informed the Tribunal in oral evidence that he has known his partner since 2011 and later on they planned to have a serious relationship and he planned to leave Australia but then decided to apply onshore. The Tribunal also acknowledges the oral evidence of the applicant’s friend who expressed his belief that the relationship is a genuine one. The Tribunal makes no findings on the nature of the applicant’s relationship with the sponsor because the Tribunal does not consider that a genuine relationship, even a long term one, constitutes a compelling reason for the waiver. In the Tribunal’s view, it is the basis on which this application is made but no more. The Tribunal is mindful that the earlier Departmental policy identified long term relationships as giving rise to compelling circumstances. In the Tribunal’s view, such policy is more restrictive than, and is not consistent with, the legislation. Essentially, the Tribunal does not consider that a genuine relationship, including a long term relationship, constitutes a compelling reason for the waiver.

17. In his written submission to the delegate the applicant claims that he is an Egyptian citizen and because of the severe civil and political turmoil in Egypt, he does not want to “submit” his wife and her dependent daughter to the dangerous situation in Egypt. The applicant referred to the 2013 DFAT Travel Advice and he also provided a Travel Advice to the Tribunal. The applicant claims that the sponsor does not want him to leave Australia as the separation would have ‘extremely detrimental effect’ on the new family. He refers to close emotional links between himself and the sponsor and her child. The applicant also claims that the sponsor would not be able to work in Egypt because of the language barrier and will not be able to achieve the position that she holds in Australia. The applicant refers to financial hardship arising from her loss of employment and income, stating that the family home in Australia would be repossessed and existing debts may not be repaid, which would cause hardship to the marriage.

18. The Tribunal finds these claims unpersuasive. There is no probative evidence to satisfy the Tribunal that the sponsor ever had a genuine intention of travelling to Egypt or that she had ever made any arrangements or even adequate inquiries to enable her to do so. The applicant suggested to the Tribunal in oral evidence that no inquiries and no preparations had been made for the sponsor to live in Egypt. The Tribunal is not convinced that the sponsor would travel to Egypt if the applicant was required to leave Australia. The Tribunal acknowledges that if the applicant was to depart and if the sponsor were to remain to Australia, the couple would be separated. In oral evidence to the Tribunal the applicant spoke about the difficulties the relationship would experience if he and the sponsor would separate. The Tribunal is prepared to accept that such separation may cause some hardship to the couple and that they prefer to be together. However, if this relationship is genuine, the applicant will be able to make an application for the visa offshore and any separation would be a temporary one. Even if the parties may not wish to be separated, the applicant has not satisfied the Tribunal that such separation would be ‘extremely detrimental’ to the new family or cause hardship. The couple will be able to maintain frequent communication. They should be able to continue to provide each other with comfort and support, if they do so now. Separation is not uncommon in many relationships and is unexceptional in cases such as the present one and the Tribunal is mindful of the applicant’s oral evidence to the Tribunal that he works in Sydney while the sponsor lives in Queensland and that they spend, at most, one week per month in each other’s company. That is, the couple claim to be able to maintain a close relationship despite spending very little time together and the Tribunal is not convinced that they would be unable to maintain the relationship if the applicant was to leave the country. The Tribunal is not satisfied that severe hardship would be caused by the separation, as the applicant claims. The Tribunal is not convinced that a temporary period of separation would, in the circumstances of the present case, give rise to compelling reasons for the waiver.

19. The applicant refers to lack of safety and civil and political turmoil in Egypt. The Tribunal does not consider that a Travel Advisory offers accurate and reliable information about the situation in any country and the possibility of harm to the applicant or his family. The purpose of that information is to advise tourists travelling in the region. It is not to advise Egyptian nationals or family members residing in the region. It does not take account of the applicant’s or the sponsor’s circumstances, such as the existence of family and community support. Neither has the applicant established that the poor security situation that existed in Egypt in 2013 continues to exist.

20. The Tribunal also notes that the applicant travelled to Australia holding a Visitor visa and later sought a Student visa. At no time did the applicant seek to engage Australia’s protection obligations, which he may have done if he believed the situation in Egypt was unsafe for him or his family. In his submission to the Tribunal the applicant claims that he was not aware of the opportunity to make such an application but the Tribunal does not accept that claim. Information about protection visa s is readily available on the Department’s website, from any officer of the Department or any migration agent and there is plenty of media coverage of the issue. The Tribunal is not satisfied that the applicant was entirely unaware of the existence of protection visas or that he could not have made inquiries about his eligibility to apply for one, if he had any genuine concern about returning to Egypt. The applicant has not satisfied the Tribunal that the situation in Egypt gives rise to compelling reasons for the waiver. The applicant claims in his submission to the Tribunal that the delegate neglected to contact him to seek additional information but the delegate was under no obligation to do so.

21. The applicant refers to the sponsor’s loss of employment and financial hardship and lack of opportunities in Egypt. As noted above, the Tribunal is not satisfied that the sponsor ever had any intention of travelling to, or residing in, Egypt. Even if she did make that decision (a claim the Tribunal does not accept), there is no evidence before the Tribunal to indicate that she had approached her employer and was told that leave would not be granted to enable her to remain in Egypt for some time. The Tribunal is not satisfied that the applicant’s departure would lead to the sponsor’s loss of employment. More significantly, the applicant has not established that it would cause financial hardship, even taking account of application fees and other expenses which the applicant referred to in his written submission to the Tribunal. The Tribunal accepts that the family has certain financial obligations. There is little probative documentary evidence to support the applicant’s assertions that the family home would be repossessed and the debts would be unpaid. There is little evidence on whether the couple could rely on the financial support from family members or friends or whether either or both could obtain a bank loan. There is no reason why the applicant himself could not engage in employment in Egypt to provide financial support to the family. Although he claims his salary would be inadequate, there is little evidence on what the applicant could earn and what expenses these funds could cover. There is inadequate evidence to satisfy the Tribunal that other financial obligations – such as education fees and financial support for family members, etc. – could not be met by other family members.

22. The Tribunal notes that the applicant previously sought a Student visa in Australia and he would have to show that he had the financial capacity to pay for his studies and living expenses. The applicant explained to the Tribunal that he had the savings for his studies, which he had since exhausted. The Tribunal notes that his judicial review application lasted until the time he applied for the Partner visa and presumably if the applicant hoped to have his Student visa reinstated, he would have found the funds to pay for his studies and living expenses. The applicant presented no evidence that the money which would have been available to him when he was seeking the Student visa became unavailable since then. The Tribunal is not satisfied on the evidence before it that financial hardship would be caused if the applicant was required to leave Australia. The Tribunal is not satisfied that the applicant’s desire to work and make money in Australia is a compelling reason for the waiver. The Tribunal is not satisfied these matters more generally give rise to compelling circumstances.

23. The applicant claims that the sponsor’s daughter has a good relationship with her father, with whom she has daily contact, and he would not allow her to leave Australia but even if she did leave Australia, she would not be able to adjust to life in Egypt. The applicant claims that removing the daughter from the current arrangement would destroy her relationship with her family and she would be denied the same level of education. As noted above, the Tribunal is not convinced that there is any intention for the sponsor and the sponsor’s daughter to travel to, and live in, Egypt.

24. The applicant claims that in light of the current situation in Egypt, he feels he would be unable to obtain employment in Egypt and he will be unable to support his family for whom he is the primary source of support. Although the applicant presented reports about the employment situation in Egypt generally, the applicant presented no evidence of having applied for any jobs and of having been denied employment in Egypt. The sponsor informed the Tribunal that she put their details on employment sites and nothing came up but in the Tribunal’s view, that is hardly sufficient to show that suitable employment is unavailable in Egypt. The applicant claims that the salaries in Egypt are much lower than his income in Australia but as noted above, the Tribunal is not convinced that the applicant’s desire to earn more money in Australia constitutes a compelling reason for the waiver. The Tribunal is not satisfied on the limited evidence before it that the applicant will be unable to obtain employment in Egypt. Even if he were to satisfy the Tribunal that he might be unable to find employment in his own profession, the Tribunal does not consider that temporary employment in a different occupation that would enable the applicant to support himself and his family financially during the processing of his offshore application constitutes a compelling reason for the waiver. The Tribunal is not satisfied on the evidence before it that the applicant would be incapable of finding any employment in Egypt.

25. The applicant claims that he adhered to visa conditions and that he is eligible to make the application for the Partner visa. The Tribunal notes that these are not matters that need relevantly be considered for the purpose of Item 3001.

26. In his written submission to the Tribunal the applicant claims that he has been living in Australia since 2010 and has acclimatised well and considers Australia, rather than Egypt, to be his home. He repeated these claims in his oral evidence to the Tribunal. The Tribunal is mindful that the applicant never held a permanent visa. There could be no expectation that he would be allowed to remain in Australia permanently. It is insufficient to state that the applicant prefers to live in Australia and prefers to call Australia home. The Tribunal does not consider such preferences constitute compelling reasons for the waiver.

27. The applicant refers to compelling grounds due to emotional ties with the sponsor and the fact that keeping families apart will create additional emotional, psychological and financial hardship and the added pressure. In oral evidence the applicant stated that he and the sponsor support each other and it would cause hardship for them to be separated. The applicant outlined the reasons why the sponsor would find it difficult to accompany him in Egypt. The Tribunal accepts that if the applicant was to leave Australia and the sponsor to remain, it would result in the parties being separated. For the reasons stated above, the Tribunal does not consider that a period of separation, even accounting for the various hardships that it may entail, gives rise to compelling circumstances.

1. The applicant outlined in his submissions to the Tribunal a number of concerns in relation to the delegate’s decision and the visa assessment process. The Tribunal acknowledges that submission but is unable to comment on any matter relating to the processing of this application by the Department. The Tribunal conducts a review de novo and any perceived errors in the primary decision-making do not affect the Tribunal’s decision-making.

2. The applicant informed the Tribunal in oral evidence that in June 2013 the sponsor had an operation for gall-bladder and he moved in with her and looked after the sponsor. The sponsor said it took the sponsor about three to four weeks to recover. The Tribunal is mindful that the present application was made in November 2013. Even if the applicant’s evidence was accepted (and he presented no medical evidence to support this claim), the applicant’s evidence is that the sponsor has recovered months before the present application was made. The applicant presented some medical reports to the Tribunal relating to the sponsor but there is no evidence that the sponsor had any ongoing health issues of any significance.. The Tribunal is not convinced on the evidence before it that the sponsor’s claimed health issues give rise to compelling reasons for the waiver.

3. The applicant informed the Tribunal that he and the sponsor have ‘connected’ and it would be hard for him to leave the country. The applicant refers to the close relationship between him and the sponsor. As noted above, the Tribunal is not convinced that a close relationship, if such exists, can only be maintained if the parties live together or even in the same country. The Tribunal is not satisfied that the applicant and the sponsor would be denied the opportunity to provide each other with emotional support and comfort if they do not live together and the Tribunal notes that they claim to be able to do so now despite spending most of their time living in different states. The Tribunal is not satisfied these matters give rise to compelling circumstances for the waiver.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal is not satisfied that all other matters, considering singularly or cumulatively, give rise to compelling reasons for the waiver. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

   Conclusion

5. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Kira Raif
   Senior Member