Abdelsayed v Minister for Immigration
[2018] FCCA 2988
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABDELSAYED v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2988 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa – applicant needed to satisfy but did not Criterion 3001 – he therefore needed to show compelling reasons to not apply Criterion 3001 – Administrative Appeals Tribunal was not satisfied there were compelling reasons not to apply Criterion 3001 – Administrative Appeals Tribunal failed to meaningfully consider a substantial clearly articulated claim and therefore decision of Administrative Appeals Tribunal affected by jurisdictional error – two other grounds of asserted jurisdictional error not established – application for constitutional writs of certiorari and mandamus granted. |
| Legislation: Migration Act 1958 (Cth), ss.65, 348, 359A, 359 AA Migration Regulations 1994 (Cth) |
| Cases cited: AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 SZNBE v Minister for Immigration & Citizenship (2009) 112 ALD 114 |
| Applicant: | ABDEL BERTO SAYEK ABDELSAYED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1619 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 September 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder of Counsel |
| Solicitors for the Applicant: | Gateway Law and Migration Australia |
| Counsel for the First Respondent: | Ms B. Rayment |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court on 28 September 2017 an Amended Application.
The decision of the Second Respondent made on 30 May 2016 affirming the decision of the Delegate of the First Respondent made on 15 January 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa is quashed.
The Second Respondent is to determine according to law the Applicant’s application for review of the decision of the Delegate of the First Respondent made on 15 January 2016 not to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa or Partner (Residence) (Class BS) (Subclass 801) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1619 of 2016
| ABDEL BERTO SAYEK ABDELSAYED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Egypt aged 35 years, having been born on 26 April 1983.
By Amended Application filed on 28 September 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 January 2016 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 6 August 2007 on a Vocational Education and Training Sector (Class TU) (Subclass 572) visa (Education and Training visa) which ceased on 8 July 2009. The Applicant had then been granted a further Education and Training visa which ceased on 4 September 2011. This was the last substantive visa held by the Applicant. Between 18 November 2010 and 17 June 2014 the Applicant made many further applications in connection with obtaining a visa which are particularised at [13] below.
The Applicant applied for the Partner visa on 6 May 2015. The Partner visa application was based on the Applicant being in a spousal relationship with an Australian permanent resident, Ms Oliviua Atef Maken Gars Ghobrial (the sponsor) whom he had married on 23 March 2015 and who was the sponsor in support of his Partner visa application.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision the relevant applicant for the permanent Partner visa is already the holder of a temporary Partner visa.
Statutory Provisions Relevant to Partner Visa Applications
As at both the date of application and date of the decision the Applicant had to satisfy cl.820.211 of the Regulations. Relevantly cl.820.211(1) and (2) provided as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(emphasis added)
As noted in [3] above, the Applicant’s last substantive visa ceased on 4 September 2011. It was common ground between the parties that this meant that at time of application and decision for the temporary Partner visa he had to satisfy Criterion 3001(1) of Sch.3 to the Regulations, which relevantly required him to have made his application within 28 days of 4 September 2011, being namely by 2 October 2011. However, he had made his Partner visa application on 6 May 2015, some four years late. Accordingly, it was open and necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see cl.820.211(2)(d)(ii).
The criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.
Decision of Delegate
In support of his Partner visa application the Applicant had lodged a statutory declaration of his father-in-law declared on 5 May 2015 (sponsor’s father’s statutory declaration) which relevantly deposed:
3.Oliviua is my daughter and I met her husband Adel Abdelsayed about a year ago at the church. I see my daughter and her husband at least 4 or 5 times a day.
4. I believe their marriage is very genuine and continuing because they really love each other. Nobody knows my daughter as well as I do and I can see very well how happy she is. Adel is a very nice man and treats my daughter like a queen. All parents are concerned about their children’s marriages but my wife and I are very happy that our daughter has found Adel who cares for her so much.
By letter dated 28 October 2015 the Department of the Minister advised the Applicant that he did not meet Criterion 3001 and invited him to advise of any compelling reasons for not applying that Criterion. In response a number of documents were submitted, including a statutory declaration of the sponsor declared on 23 December 2015 (sponsor’s statutory declaration), of which the last two paragraphs deposed as follows:
If my husband is returned to Egypt this will be a disaster for us. Financially we will lose a lot and it is already so difficult. My other problem is falling pregnant. I have not yet become pregnant and I have started medical attention for this issue. Our reasons for having Schedule 3 waived are compassionate and humanitarian. If I had received different advice from the department when I had first called them this may have made us decide not to purchase a home.
For the sake of us not losing so much financially and for the sake of me being able to maximise my chances of pregnancy I ask that you waive Schedule 3.
It may be seen that the compelling reasons put forward in the last paragraph of the sponsor’s statutory declaration relate to financial and possible infertility issues.
However, it is relevant that in the earlier part of the sponsor’s statutory declaration at [2] and [3] she had deposed as follows:
Initially, I had a lot of problems with my parents agreeing to our marriage especially after people at our church told them horror stories about visa applications failing and then the spouse had to return to Egypt and the waiting time in Egypt for a visa was 2 years. My parents were afraid that I would have to go with Adel to Egypt…
I called the department of immigration for advice and they explained that my husband can lodge an application in Australia and not have to go to Egypt. Both my parents and I were relieved with this information and after they saw how much we loved each other they finally agreed to our marriage…
I note that the Decision Record of the Delegate gave the following visa application history of the Applicant:
On 18 November 2010 you lodged a Protection visa application; and on 30 March 2011 this application was refused. On 18 November 2011 you reviewed this decision with the Refugee review Tribunal; and on 18 November 2011 this was affirmed. On 14 December 2011 you lodged a request for Ministerial Intervention; and on 14 May 2012 this was deemed inappropriate to consider. On 1 May 2013 you lodged a Judicial Review of this decision; and on 8 November 2013 you withdrew this review.
On 24 March 2012 you lodged a Protection visa application; and on 7 May 2012 this application was deemed to be section 48b barred.
On 20 June 2012 you lodged a Protection visa application; and on 8 August 2012 this application was deemed to be section 48b barred.
On 25 June 2012 you lodged a request for Ministerial Intervention; and on 10 August 2012 this was deemed inappropriate to consider.
On 19 September 2012 you lodged a further Protection visa application; and on 7 December 2012 this application was deemed to be section 48b barred.
On 19 September 2012 you lodged a request for Ministerial Intervention; and on 7 December 2012 this was deemed inappropriate to consider.
On 18 January 2013 you lodged a request for Ministerial Intervention; and on 30 January 2013 this was deemed inappropriate to consider.
On 15 February 2013 you lodged a further Protection visa application; and on 2 August 2013 this application was deemed to be section 48b barred.
On 18 February 2013 you lodged a request for Ministerial Intervention; and on 16 May 2013 this was deemed inappropriate to consider.
On 5 December 2013 you lodged a protection visa application; and on 16 May 2014 this application was refused. On 17 June 2014 you lodged a review of this decision with the Refugee review Tribunal; and on 16 April 2015 this decision was affirmed.
From 16 December 2011 to 13 February 2012 you did not hold a visa while residing in Australia.
From 19 September 2012 to 8 May 2013 you did not hold a visa while residing in Australia.
(Protection visa documents)
……………
I have given weight to your immigration history, namely your long periods of unlawfulness, your failure to depart Australia after being granted a series of Bridging Visa Es on this basis on 21 June 2012, 3 July 2012, 31 July 2012, 21 August 2012 and 4 September 2012, and a series of unmeritorious applications you subsequently lodged that further prolonged your stay in Australia. I consider that, in addition to the circumstances stated in the policy above, it is not the intention of the Schedule 3 waiver to facilitate persons who have chosen to remain unlawfully in Australia; or for those who have deliberately manipulated their circumstances through the lodgement of unmeritorious applications in order to prolong their stay in Australia, while awaiting the circumstances which would allow them to make a partner visa application onshore.
I note that the last paragraph quoted from the Decision Record of the Delegate immediately above is obviously referable to cl.8.7 of the Department of the Minister’s PAM3 Guidelines for temporary Partner visa applications.
In the result the Delegate did not find that any of the following were compelling reasons for not applying Criterion 3001:
a)any fertility problems suffered by the sponsor;
b)any emotional or psychological hardship which would be suffered by the Applicant or the sponsor if the Applicant had to go offshore while a new Partner visa application was processed;
c)any financial problem in relation to a home loan taken out by the sponsor, or any other financial and personal commitments to which the sponsor had committed; and
d)the sponsor’s claim that she had phoned the Department of the Minister for advice, which was to the effect that the Partner visa could be lodged in Australia and the Applicant did not have to go back to Egypt.
The Delegate recorded that Departmental records did not support the sponsor’s claim that she had requested pre-lodgement advice from the Department, and in any event the information provided by the Department was correct and it was the “responsibility of the Applicant and the sponsor to exercise due diligence before making any major life decisions, such as purchasing a property”.
Accordingly, the Delegate concluded that there were no compelling reasons to waive Criterion 3001 and refused the application for the grant of a temporary Partner visa, which meant that pursuant to cl.801.221(1) the Applicant also did not meet the criteria for the grant of a permanent Partner visa.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 22 January 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time. He appeared before the Tribunal on 27 April 2016 to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages. The sponsor also attended the Tribunal hearing and gave evidence, at which time she was 23 years of age, having been born on 2 December 1992.
From [7] – [19] of its Decision Record the Tribunal recorded the claims and evidence of the Applicant at the Tribunal hearing. At [9] it recorded that the Applicant gave evidence that his migration representative “lodged multiple protection visa applications with the Department, which were eventually rejected” after the rejection of his first Protection visa application (i.e. on 18 November 2011).
At [11] – [15] the Tribunal recorded that the Applicant had said that he had met the sponsor in May 2014 at church and they had married on 23 March 2015 and after their honeymoon had moved into an apartment in Campbelltown which was in the sponsor’s name, although the Applicant had paid the deposit of $41,000, as well as stamp duty and insurance, making a total of $63,000. The Applicant and the sponsor had been pressured to buy the apartment by the sponsor’s father because he did not want the sponsor to live in rented accommodation and wanted the Applicant to have property ties in Australia.
At [13] the Tribunal recorded that the Applicant had given evidence that when the Applicant and the sponsor had first met, the sponsor’s family was not happy that he might have to leave Australia to apply for the visa offshore and did not approve of the relationship and that a priest had to intervene in order to obtain the approval of the sponsor’s father.
At [14] the Tribunal recorded that the Applicant had said that the sponsor’s father is the guarantor of the Campbelltown apartment home loan and that the Applicant is repaying that loan with the assistance of the sponsor’s father at a rate of about $500-$600 per month.
At [15] the Tribunal noted that the Applicant had said that the sponsor’s family was supportive and the sponsor’s parents and two brothers live about 8km away from the Campbelltown apartment and the Applicant and the sponsor see them every Sunday and sometimes during the week.
At [17] and [18] the Tribunal considered the Applicant’s evidence that the sponsor was having problems conceiving a child, as she suffered from irregular periods, and is frequently upset.
At [20] – [24] of its Decision Record the Tribunal recorded the evidence given by the sponsor at the Tribunal hearing. At [20] and [22] it recorded the sponsor’s evidence about conceiving a child. At [21] it recorded the sponsor’s evidence about loan repayments on the Campbelltown apartment and that her parents were helping with the repayments. At [23] it recorded that the sponsor had said that initially her parents were against her husband in relation to the Applicant’s residency status and that they insisted that he tie himself to an apartment to ensure that he stayed in Australia and that the sponsor went against her parents’ wishes in marrying the Applicant anyway.
Importantly, at [24] the Tribunal recorded that the sponsor claimed that the Applicant’s father had been killed in an incident in his village in Egypt and she was worried about the Applicant going back to Egypt. This claim had not previously been made by the Applicant himself for the purposes of his Partner visa application and the Tribunal accordingly recalled the Applicant to give evidence after the evidence of the sponsor had finished.
At [25] of its Decision Record the Applicant’s evidence in relation to his father’s murder was recorded by the Tribunal. The Applicant claimed that he had protested against Islam in Martin Place, Sydney, in 2011 and that this protest was filmed and his father was then murdered by villagers who considered that “he had acted against Islam”. The Applicant acknowledged that the situation was much calmer in Egypt now, “but that his was a personal problem”. He claimed that he would be killed by Muslim villagers if he returned to Egypt, his name was listed at the airport and he would be found as soon as he arrives back in Egypt.
At [26] the Tribunal recorded that it had granted the Applicant an additional week to provide further information, and that on 14 May 2016 the Applicant’s representative had submitted a certificate from an attorney at the Court of Cassation and the Supreme State Security Court dated 31 May 2012 (Attorney’s Certificate) attesting that he had copies of the following documents:
a)a photocopy of a certificate of a schedule of court cases relating to the case of the killing of the late Berto Sadek Abdelsayed;
b)a photocopy of a law suit in which the Applicant is sentenced in absentia to serve three years’ jail with labour; and
c)a photocopy of a decision of Public Prosecution number 721 issued on 26 May 2012 containing the decision to place the Applicant’s name on arrival watchlists in Egyptian airports and seaports with a view to arresting him and delivering him to the executive authorities to be imprisoned for three years.
At [29] – [30] of its Decision Record the Tribunal recorded that the Applicant did not meet Criterion 3001, and from [31] – [39] set out its reasons for finding that there were not compelling reasons for not applying Criterion 3001.
At [32] the Tribunal correctly referred to a relevant authority in the Federal Court of Australia on the meaning of the expression “compelling reasons”. At [33] it found that the sponsor’s fertility and medical problems did not constitute a compelling reason to waive Criterion 3001. At [34] the Tribunal recorded that it did not accept that any stress suffered by the sponsor was a compelling reason to waive Criterion 3001, and at [35] it rejected the parties’ financial position as constituting a compelling reason to waive Criterion 3001.
At [36] the Tribunal “…gave the Applicant the benefit of the doubt and accepted his claim that his father was killed in 2011 as a result of the Applicant’s protest in Australia being seen as anti-Islam”. However, the Tribunal then stated that it took into account the Applicant’s oral evidence that “the situation is much calmer in Egypt now” and that the Applicant had acknowledged that his was “a personal problem”. The Tribunal noted that it gave little weight to the Attorney’s Certificate “because the information contained in the letter is based on photocopies obtained by the attorney. There is no independent information before the Tribunal relating to the Applicant’s name being on airport lists or that the Applicant was ever sentenced in absentia”. The Tribunal went on to find that the Applicant need not return to his home village and could live elsewhere in Egypt and that his claimed problems about returning to Egypt did not constitute a compelling reason to waive Criterion 3001.
At [37] the Tribunal considered the claim that the sponsor could not return to Egypt as she was a refugee, but found that there was no reason why she should return to Egypt with the Applicant and this claim also did not constitute a compelling reason to waive Criterion 3001.
Finally, at [38] of its Decision Record the Tribunal stated that it was not satisfied that the Applicant’s evidence relating to the incompetence of his previous advisers amounted to a compelling reason to waive Criterion 3001 and in the result the Tribunal affirmed the decision of the Delegate not to grant the Partner visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Amended Grounds relied upon by the Applicant were as follows:
1. The second respondent failed to comply with its obligation under s 348 of the Act to review the decision of the first respondent by failing to consider or to make any findings in relation to the following claim made by the applicant.
Particulars
The applicant claimed that a compelling reason for not applying the Schedule 3 criteria was the likely damage to the relationship with the parents of his wife, caused by the decision of the applicant and his wife to marry without the consent of the parents, in circumstances where the applicant and his wife had mollified his parents by assuring them that the applicant would not have to depart Australia to apply offshore for a Partner visa.
2. The decision of the second respondent was, in part, based on a finding on a critical fact that was arbitrary, capricious, irrational, and lacking in evident or intelligible justification.
Particulars
(a) The second respondent gave "little weight" to a letter from an attorney explaining that the applicant had been charged with disdaining Islamic religion and sentenced in absentia to serve three years jail, and that as a result his name had been placed on arrival watch lists in Egyptian airports and seaports for arrest and imprisonment.
(b) The reason given by the second respondent to give little weight to the letter was that the information contained in the letter was based on photocopies obtained by the attorney.
(c) The second respondent gave no reason why information based on photocopies might be non-genuine or otherwise unreliable.
3. The second respondent failed to comply with its obligation under s 359A and 359AA of the Act when, during the hearing on 27 April 2016, it failed to orally give to the applicant clear particulars of information in the possession of the Tribunal that the Tribunal considered would be part of the reason for affirming the decision that is under review, nor did the Tribunal ensure that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review, nor did the Tribunal invite the applicant to comment on or respond to the information or advise the applicant that he could seek additional time to comment on or respond to the information.
Particulars
(a) The information was in the files of the first and second respondents relating to previous, unsuccessful, applications by the applicant for a protection visa.
(b) The information was relevant to the applicant’s claim that the second respondent ought to have exercised a waiver over the Schedule 3 criteria to enable the applicant to remain in Australia because he was at risk of persecution upon return to his home country, and because of the prospect that his previous applications for a protection visa may have been regarded as unfounded.
Consideration
Ground 1
Mr Poynder of Counsel, who appeared for the Applicant, submitted that the Tribunal had failed to have regard to a claim by the Applicant of “a cultural issue”, being the likely damage to the relationship between the Applicant and the sponsor’s parents by the need for him to return to Egypt and that this failure was to be characterised as a failure to have regard to relevant considerations, a failure to take account of the Applicant’s claims and evidence or simply a failure by the Tribunal to perform its statutory task of reviewing the Delegate’s decision. Another way of putting it would be that the Tribunal committed jurisdictional error by ignoring relevant material in a way that affected its exercise of the power reposed in it, and that therefore it had not actually undertaken the review required by the Act and a constructive failure to exercise jurisdiction had occurred.
It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
The relevant principles were recently summarized by the Full Court of the Federal Court of Australia in AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89 at [18] per Collier, McKerracher and Banks-Smith JJ, as follows:
[18]It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
a)the subject of substantial clearly articulated argument, relying on established facts; or
b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
a)such a finding is not to be made lightly (NABE at [68]);
b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
[37] While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
[38] Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
I first note that there is no evidence that in actual fact the Applicant and the sponsor “married without the consent of the parents”.
Second, the only evidence given by either of the sponsor’s parents was that in the sponsor’s father’s statutory declaration (see [9] above) which spoke in glowing terms of the Applicant as a husband and deposed that the sponsor’s father saw the sponsor and the Applicant “at least 4 or 5 times a day”.
Third, the sponsor’s statutory declaration makes no suggestion of likely or imminent damage to the relationship with her parents in the relevant circumstances. The compelling reasons for waiving Criterion 3001 given by the sponsor in her statutory declaration relate to financial loss and her difficulty with falling pregnant: see the last two paragraphs of her statutory declaration at [10] above.
The earlier part of the sponsor’s statutory declaration did recite that initially the sponsor’s parents were concerned about the proposed marriage because of the risk of her having to go with the Applicant to Egypt if an onshore Partner visa application failed, but were relieved when told that the present Partner visa application could be lodged in Australia: see [12] above. In other words, the claim of likely damage in the future to the relationship with the sponsor’s parents was not expressly made in her statutory declaration or squarely raised.
Further, at the Tribunal hearing the Applicant did not give likely damage to his relationship with the sponsor’s parents as a compelling reason for the waiver of Condition 3001. The Applicant confirmed that the sponsor’s father had insisted that the Campbelltown apartment be purchased in order to guarantee the sponsor’s future, to tie the Applicant to Australia and to have the sponsor not live in a rented accommodation. The Applicant confirmed at TP11.9 – 15 of the transcript of the Tribunal hearing that the compelling reasons for waiver were the sponsor’s issues with pregnancy and the financial issue of repayment of the loan for the Campbelltown apartment and the sponsor’s general stress and upset.
Nevertheless, the Applicant did say, as recorded at TP9.1 – 4:
APPLICANT: … and at the moment we are in a very bad terms and lot of problems with her family because they are not happy about the fact that one day I maybe I will have to leave her and go to Egypt to reapply from over there and they are not very happy with that…
However, the claims and evidence given by the sponsor at the Tribunal hearing were relevantly more pointed, as follows at TP19.13 – TP20.3:
MEMBER: So if your husband required to go overseas what would be the impact on you?
SPONSOR: My specialist had suggested to go to see phycologist or psychiatrist to get over this issue because it's really bring me down and say at the moment because this is affecting me like front line the issue of the conception like say now the tablets I was given is going to help me work and do it naturally but the hole effort would be put to a hold if he were to leave me and go overseas and then plus there will be causing big problem and the fictions between myself and my family and myself and the culture and the community I am living with that I am left alone here and don't forget that my parents were against him from day one and I put my foot down and said no, I love him and I want to live my life with him and for me to be left alone by him and allowing him to go overseas that going to be big problem in the eyes of my parents.
MEMBER: Why would it be such big problem if it is going to be just temporarily?
SPONSOR: We, I don't know how to explain to you we are like a family me him and hopefully one day children for him to leave me and go down and then come back I am not going to able to make it and my parents' view towards me is not going to be the same as before any more because I have already went against their will and in their eyes they know I have done the mistake but they don't say it but I know they know I have done something wrong.
MEMBER: what have you done wrong?
SPONSOR: Egyptian girls they have to take the blessing of the mum and dad in everything but in my case I completely neglected that and disregarded that and I have done everything against their will and I didn't listen to them.
(emphasis supplied)
I take the word “fictions” recorded at TP19.20 as requiring to be read as the word “frictions”.
In light of the above evidence and materials being before the Tribunal, I have come to the view that the Tribunal has failed to deal with a claim which in terms of Ground 1 was sufficiently squarely raised before it. The conjunction and totality of the evidence summarized above at [12], [21], [43] and [44] above meant that the claim of likely damage to the relationship with the sponsor’s parents was “clearly articulated” or at the very least “squarely” and “clearly emerged” over time, and became clearly articulated and concrete with the evidence given by the sponsor at the Tribunal hearing recorded in the preceding paragraph.
In her submissions Ms Rayment, who appeared for the Minister, submitted that at [34] of its Decision Record the Tribunal, in finding that the sponsor was “close to her family” and saw them “at least once per week”, had dealt with the issue of the relationship between the sponsor and her family at a level of greater generality, but in my view that is to read too much into [34]. It was clear that presently the relationship between the Applicant, the sponsor and the sponsor’s parents was good, but the claim which I have found was being made to the Tribunal was that this good relationship would adversely change and be damaged if the Applicant were to return to Egypt to apply for a Partner visa there. In my view, the Tribunal failed to “engage in an active intellectual process directed at that claim…”: Carrascalao v Minister for Immigration (2017) 252 FCR 352 at 363 [45].
Ground 1 may suffer from a degree of ambiguity in not making entirely clear whether or not “the likely damage to the relationship with the parents of his wife” was damage to the relationship between the Applicant himself and the sponsor’s parents, the sponsor’s own relationship with her parents or the relationship of the Applicant and the sponsor jointly with the sponsor’s parents. Be that as it may, damage to the relationship between the sponsor and her parents would obviously be likely to impact upon the Applicant himself and was an arguably compelling reason to be taken into account by the Tribunal, and was presumably seen as such by the Tribunal member when he asked the sponsor at the Tribunal hearing what would be the impact on her if the Applicant was required to go back to Egypt: see [44] above.
Accordingly, Ground 1 succeeds in establishing that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground complains of the Tribunal’s treatment of the Attorney’s Certificate (see [28] and [31] above).
Until the Tribunal hearing there was no suggestion that a compelling reason for waiving Criterion 3001 was because it would be dangerous for the Applicant to return to Egypt. That claim was not made by the Applicant until after it had been raised by the sponsor in her evidence at the Tribunal hearing recorded at TP16.12 – 21. The Applicant then said that he could perhaps contact a lawyer in Egypt “who is dealing with the problem of the affair of my dad killing” to obtain papers or information supporting the claim that the Applicant’s name was on an airport list. At the end of the Tribunal hearing time was granted to the Applicant to obtain or provide any other information that he wanted to submit about compelling reasons. Under cover of email of 14 May 2016 the Applicant’s migration agent forwarded the Attorney’s Certificate to the Tribunal.
The Tribunal viewed the Attorney’s Certificate as I have described at [31] above. At the hearing Mr Poynder appeared to suggest that I should read the sentence in [36] of the Decision Record, being “The Tribunal placed little weight on the letter from the attorney because the information contained in the letter is based on photocopies obtained by the attorney”, discretely and independently from the following sentence, being “There is no independent information before the Tribunal relating to the Applicant’s name being on airport lists or that the Applicant was ever sentenced in absentia”. I do not agree that this would be a fair reading of the two sentences. In my view, the two sentences should be read together, with the second sentence giving further context and clarification to the first. A fair reading of these sentences is that the Tribunal placed little weight on the Attorney’s Certificate because the photocopies referred to, and which the attorney had stated that he had obtained, were not provided to the Tribunal or attached to the Attorney’s certificate and thus there was no independent confirmation or information corroborating the claims of the Applicant in this regard. There was, and remains, no explanation of why neither the originals nor photocopies of the documents referred to in the Attorney’s Certificate were provided to the Tribunal and the Tribunal is to be taken as stating in these two sentences of [36] that it was not prepared to accept the mere assertion of the attorney that such documents were in his possession and were to the effect and purport which the attorney claimed.
In my view, this was a course legally open to the Tribunal, and its reasoning in this regard was not without an intelligible justification, capricious or legally unreasonable. Perhaps it might have been the case that a Tribunal differently constituted might have taken a different view but this is not sufficient to establish jurisdictional error. As Kiefel CJ recently said in a different but still germane context, “the test for unreasonableness is necessarily stringent”: Minister for Immigration v SZVFW [2018] HCA 30 at [11]. Further and in any event, the Tribunal does not seem to have entirely disregarded the Attorney’s Certificate, but rather “placed little weight” on it. The Tribunal preferred to accept the oral evidence of the Applicant that “the situation is much calmer in Egypt now”.
In my view, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 3
For the purposes of the consideration of this Ground the parties have agreed by a Statement of Agreed Facts dated 26 October 2017 as follows:
1. The parties agree that:
a) the Administrative Appeals Tribunal ("Tribunal") had before it Department of Immigration and Border Protection ("Department") file number BCC2015/1319144;
b) Department file number BCC2015/1319144 contained the delegate's decisions in relation to the applicant's previous protection visa applications dated 16 May 2014 (from Department file number CLF2013/304646 and 30 March 2011 (from Department file number CLF2010/156463);
c) as set out in the transcript of the Tribunal hearing annexed to the affidavit of Sally Ibrahim affirmed on 29 August 2017, the Tribunal stated that it had "seen the decision of the refugee review tribunal in [the applicant's] case";
d) the Tribunal did not have access to the physical files concerning the Tribunal's review of the applicant's previous protection visa applications (Tribunal matter numbers 1103301 and 1409229); and
e) enquiries made by the Department to the Tribunal reveal that it cannot be confirmed "whether or not Member Bostock accessed the electronic records on cases 1103301 and 1409229".
It follows from the Statement of Agreed Facts that the only finding available is that the Tribunal had “seen” one decision of the two Refugee Review Tribunal (RRT) decisions in relation to the Applicant dated respectively 18 November 2011 and 15 April 2015, and of which copies are annexed to the affidavit of Ms Charlotte Alexander affirmed on 27 September 2017. Both of the RRT decisions involved a consideration of the Applicant’s claim that because of his anti-Islam activity in Australia and attendance at demonstrations in 2011 in Australia his father had been killed. Both of the RRT decisions are lengthy, the first running to 133 paragraphs over 32 pages and the second running to 113 paragraphs over 17 pages. Both RRT decisions make adverse findings against the Applicant and each found him not to be a credible or reliable witness and that his documentary evidence was problematic and manufactured, and both decisions rejected the claim that his father had been killed in Egypt because the Applicant had been seen at protests in Australia.
I note that the evidence does not enable me to find to what extent the Tribunal had “seen” one of these RRT decisions, nor does it enable me to make any findings in relation to what, if any, the Tribunal member had read of the Delegate’s decision which the RRT was reviewing in that instance.
This Ground asserts that the Tribunal acted in breach of ss.359A and 359AA of the Act when it failed to give clear particulars of information in its possession, being information relating to the previous unsuccessful visa applications made by the Applicant during the Tribunal hearing.
In my view this Ground also fails to establish that the decision of the Tribunal is affected by jurisdictional error, for the following reasons.
First, in my view the Applicant gave the information, being the contents of the Protection visa documents, to the Tribunal when he gave to the Tribunal the Decision Record of the Delegate at the time he lodged his application for review. All of the relevant Protection visa applications were appropriately identified and the Delegate’s categorization of them as being unmeritorious and manipulative was also given to the Tribunal: see [13] above.
Whether information is given to the Tribunal by an Applicant within the meaning of s.359A(4) of the Act is ultimately a question of fact: Zeng v Minister for Immigration & Border Protection [2016] FCA 627 at [7] per Pagone J. Further, the requirement to “give information” does not necessarily extend to requiring disclosure of the entirety of any document in which “information” is contained: SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505 at 512 [23].
In my view, the facts and circumstances of this case mean that the Applicant gave to the Tribunal, by giving to it the Decision Record of the Delegate, the findings and information that appeared in the Protection visa documents identified in the Decision Record of the Delegate. The Protection visa documents referred to in the Decision Record were not third party documents unknown to the Applicant, but rather applications and decisions on applications, or letters written on his behalf, which directly affected him and to which he was a party and made through the agency of his then registered migration agent. After all, the purpose of the rights granted to an applicant under s.359A of the Act are to allow the relevant applicant to comment on or respond to the relevant information, which in this case were the results of the Applicant’s own Protection visa applications. Accordingly, information which was in the Decision Record of the Delegate, including the contents of the Protection visa documents, was information that the Applicant “gave” to the Tribunal (by forwarding the Decision Record of the Delegate to the Tribunal when he filed the his review application with the Tribunal) and s.359A(1) was rendered inapplicable by force of s.359A(4)(b): Minister for Immigration v Chamnam You [2008] FCA 241 per Sundberg J which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ.
Further and in any event, I consider that at the Tribunal hearing the Applicant “gave” the contents of the Protection visa documents to the Tribunal by inviting the Tribunal to go back to everything in his Protection visa applications filed to support his claim in relation to returning to Egypt made late at the Tribunal hearing, and in particular his claim that his name would be on a list at the airport in Egypt. At TP21.18 – 22 the Tribunal member said to the Applicant:
MEMBER: The Department's decision referred to these refugee applications and on the Department's file are decisions in relation to these applications, and I've also seen the decision of the refugee review tribunal in your case, so I'm aware of the claims that you made so your claim is because of your anti-Islam activity in Australia your father was murdered.
Then at TP23.9 the Tribunal member asked the Applicant whether he had any additional evidence to support his claim of his name being on a list at the airport, to which the Applicant responded:
APPLICANT: Everything is in the file with you, if you went back to the file you'll find them all.
In my view, this exchange between the Tribunal and the Applicant amounted to the Applicant giving to the Tribunal the contents of the Protection visa documents for the purposes of s.359A(4)(b) of the Act, either in itself or certainly cumulatively with the Applicant having earlier given the Decision Record of the Delegate to the Tribunal.
Finally, it is clear that the Tribunal would not in advance and before the hearing have assessed any “information” in the files concerning the Applicant’s unsuccessful Protection visa applications (except as stated in the Decision Record of the Delegate as given to the Tribunal for the purpose of the PAM3 Guidelines: see [14] above) in terms of any possible significant dispositive relevance so as to lead it to consider that the “information” would be the reason, or part of the reason, for refusing to grant the Partner visa to the Applicant, because no issue concerning the Applicant’s return to Egypt had been raised until the end of the Tribunal hearing. There is no suggestion in the Decision Record of the Tribunal that after the Tribunal hearing, and before delivery of its decision on 30 May 2016, it came to the view that anything in relation to the previous Protection visa applications “would be the reason, or a part of the reason, for affirming the decision” that was under review. The Decision Record of the Tribunal does not refer to any of the findings of the earlier RRT decisions, or the decisions of the Delegates which the RRT was reviewing, other than at [36] where the Tribunal, contrary to the RRT decisions, “gave the Applicant the benefit of the doubt and accepted his claim that his father was killed in 2011 as a result of the Applicant’s protests in Australia being seen as anti-Islam”.
In other words, a fair reading of the Decision Record of the Tribunal does not suggest that it had regard to any findings in the decisions of the RRT or the prior decisions of Delegates which were adverse to the Applicant. These decisions had no precedential or dispositive influence on the consideration of the Partner visa application by the Tribunal. The Applicant has not established that the Tribunal has taken into account out of the RRT decisions anything that would amount to a “rejection, denial or undermining” of the Applicant’s claims for a Partner visa. There is no evidence or necessary inference that the Tribunal considered or had any opinion about the RRT decisions: see Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at 513 – 514 [20] – [24] and SZNBE v Minister for Immigration & Citizenship (2009) 112 ALD 114 at 123 [40].
Accordingly, in my view Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
Nevertheless, because Ground 1 is made good, the decision of the Tribunal is affected by jurisdictional error and will be set aside.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 October 2018
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